Are eSignatures legal and enforceable in Germany?
Germany has officially and legally accepted an electronic signature called the German Signature law since 2001. The European Union has implemented the Electronic Directive since 1999. These regulations were standardized across Europe when the EU introduces the eIDAS.
Germany abides by the Civil Law systems. These systems are organized based on a plan or framework which takes root in the Roman law.
A written constitution that possesses some specific codes ( such as civil code, codes which incorporate administrative law, corporate law, constitutional law, and tax law) that preserve fundamental rights and responsibilities is the basis of the civil legal framework.
A little scope exists for judge-defined law in the civil, criminal, as well as the commercial courts( only legislative mandates are binding on all).
In some civil legal settings like Germany, writings of legal professionals and scholars possess a significant impact in the courts.
The legal provision for electronic signature in Germany?
A written signature is not compulsorily required to validate a contract in Germany. Contracts are said to be valid when legally aversed parties reach a consensus, be it verbally, electronically, or through the use of a physical document. ( you can refer to section 125 and 126 of the German Civil code).
To verify a valid contract or agreement, parties may need to provide evidence in a court of law. They may need the service of a leading electronic signature tool to present relevant evidence.
Not only that, Regulation(EU) No 910/2014, which is based on trust services and electronic identification within the internal market ( or the “eIDAS Regulation), was enacted in July 2016. This regulation not only repealed but also replaced the electronic Signatures Directive (1999/93/EC). It is applicable throughout the domain of the 28 Member states of the EU.
The Significance of the eIDAS
Before the enactment of eIDAS, each EU Member country was under the obligation of complying with the eSignature rules in a specific country. For example, in a situation where a German citizen sent a document to another individual in Sweden, they would check and verify that both countries’ digital signature laws match.
Immediately the eIDAS was enacted in 2016; a consistent framework was established which defines how electronic signatures are utilized throughout Europe. The legal implication is that when a German citizen sends an electronic document his or her counterpart in Sweden, the document is deemed safe, enforceable and valid.
Electronic signatures are legal and court-admissible for corporate use under German law. However, there are a few exceptions that are highlighted below.
The three forms of electronic signature
The eIDAS provision is technology-neutral and explains three styles of eSignature( SES, QES, AES).
A standard electronic signature or SES is usually typed and scanned. This form of signature does not provide an apparent proof of the person that signed the document.
QES or Qualified Electronic Signature, as well as Authentic Electronic Signature(AES), on the other hand, are trusted as forms of signatures. eIDAS classifies QES in the category of a handwritten signature.
Also, the regulations stipulate that electronic signatures cannot be considered inadmissible in the court of law for not meeting the requirement of a Qualified Electronic Signature.
This can be found in Article 25, paragraph 1. Article 25, paragraph 2 and 3 considers QES to have the same effect as a handwritten signature.
It also guarantees that what is admissible in one member state is presentable in other Member states. Lastly, Recital 49 permits national law to establish conditions relating to which form of eSignature may be needed in what situations.
Electronic signatures can be used by service providers and German citizens to sign the following documents- HR documents, commercial agreements, real estate documents, and some patents and copyrights.
An exception exists where it is stipulated that only handwritten signature can be used, such as Marriage contracts, Property purchases or transfers, Wills or Inheritance agreement, Employee termination notices.
PDF.co complies with the electronic signature regulations of Germany so you can utilize the service.