The evolution was already prudently ongoing, but it was not very widely spread and mainly larger and international organisations were already familiar with it: signing documents electronically, no matter what time of the day and no matter where we are. With the social distancing society we have all been living in over the past year, the e-signature is now becoming more and more part of daily practice. The e-signature is gaining momentum.
On November 1, 2020 the evidence rules in the New Belgian Civil Code entered into force, including a formal reference to the three types of e-signatures as defined in EU Regulation nr. 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS):
- the ‘ordinary’ e-signature – for instance: a scanned copy of a signature placed by hand;
- the ‘advanced’ e-signature, which meets certain requirements laid down in article 26 eIDAS to ensure greater certainty as regards the identification and confirmation function of the signature – for instance: biometric signatures placed through handheld devices or asymmetric encryption;
- the ‘qualified’ e-signature, meaning an advanced e-signature that is created by a qualified e-signature creation device, and which is based on a qualified certificate for e-signatures – for instance: signatures placed through eID-cards.
Several service providers offer tools to create and apply advanced and qualified e-signatures. The conformity of the service providers offering the creation and application of qualified e-signatures with eIDAS is assessed at least every 24 months by a conformity assessment body. The current qualified trust service providers can be found here for all European member states.
All of the aforementioned types of e-signatures enjoy the benefit of the ‘non-discrimination principle’: the judge cannot deny their evidential value simply because they are electronic. The judge is obliged to examine the signature, but remains principally free in his final assessment, unless if it concerns a qualified e-signature. Indeed, only the qualified e-signature is fully assimilated to the original handwritten signature on paper.
This has important consequences in the context of discussion or litigation: in the case of a qualified e-signature, it is up to the party contesting the validity of the signature to prove that the legal obligations have not been fulfilled. Since this proof is difficult to provide, the user of this type of e-signature will often enjoy a high degree of legal certainty. In the case of an ordinary or advanced e-signature, on the other hand, it is up to the signatory to prove that the signature is valid and has evidential value, the judge being free to make his or her own assessment.
These respective advantages and disadvantages do not, however, mean that a qualified e-signature should always be used. For certain types of documents, a different type of e-signature might suffice. The type of e-signature best chosen will depend, among other things, on the nature of the document, the dynamics between the parties, the context in which the document is signed and the assessment of the possible risk of disputes. It is in any case advisable, should the parties opt to use an e-signature, to be clear on the type of e-signature to be used and not just say “let’s quickly sign this document electronically”.
To avoid any uncertainties and in case of doubt, it is good to be assisted by a specialist in the matter.