Worldwide: E-Signature Guide: Europe, Middle East, Africa

CYPRUS

Phivos Pelides, Georgiades & Pelides LLC

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Yes. Certifications for advanced electronic signatures are provided by qualified trust service providers (QTSPs). The Department of Electronic Communications of the Ministry of Communication and Works is responsible for monitoring QTSPs in order to ensure security products and services.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

While only qualified electronic signatures have been afforded equal legal status as handwritten signatures, electronic signatures cannot be denied in legal or corporate proceedings solely on the basis of the signature being in electronic form or not meeting the criteria for qualified electronic signatures.

Under the Law, even if the electronic signature does not meet the criteria for a qualified signature, it can be admissible in legal proceedings in Cyprus.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

The Law recognizes three types of electronic signatures.

Electronic Signature: Data in electronic form which is attached to or logically associated with other data in electronic form, and which is used by the signatory to sign

Advanced Electronic Signature: An electronic signature which is uniquely linked to the signatory

Qualified Electronic Signature: An advanced electronic signature created with the use of a qualified electronic signature device and based on a qualified certificate.

What is the e-signature law enforceable in your jurisdiction?

On 13/6/2018 Cyprus introduced Law 55(I)/2018 (the "Law") which incorporated the EU Regulation on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market (EU 910/2014). This regulation was implemented as part of the European Commission's Digital Agenda (commonly known as "eIDAS").

CZECH REPUBLIC

Pavel Holec, Holec, Zuska & Partners

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Yes, the Ministry of Interior of the Czech Republic maintains a list of qualified trust service providers authorized to issue qualified certificate for electronic signature in accordance with the eIDAS regulation.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

TSA states that in general dealings between two private subjects any type of electronic signature may be used. Parties to a contract may agree to require a "higher" type of an electronic signature than required by the law.

Most contracts can thus be concluded using any type of electronic signature. Electronic signatures cannot be used for legal acts for which formal notarization is required (e.g. inheritance contract).

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

The eIDAS regulation recognizes three classes of E-signatures: the qualified, the advanced and a (simple) electronic signature.

TSA also recognizes a fourth, national law-specific class, the recognized E-signature. The recognized E-signature is defined as an advanced electronic signature based on a qualified certificate for electronic signature or a qualified electronic signature.

The recognized E-signature is required to act vis-Ã -vis the Czech public authorities.

What is the e-signature law enforceable in your jurisdiction?

The main regulation on E-signatures in the Czech Republic is the Regulation No 910/2014 of the European Parliament and of the Council from 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ("eIDAS").

The Czech national law for implementation and adaptation of eIDAS regulation is the Act No. 297/2016 Coll., on trust services for electronic transactions (the "Trust Services Act" or "TSA").

FINLAND

Jukka Tanhuanpaa, Applex

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

List of approved QES-level service providers is maintained by Traficom. There is one approved qualified electronic signature tool: Digital and Population Data Services Agency's organizational, citizen and professional health care certificates. In real estate registration matters, the only acceptable signing service is the Real Estate Exchange service. AES-level electronic signature services are provided by multiple private companies and most public authorities accept these strong authentications

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

E-signature is legal and as binding as a handwritten signature and for example commercial agreements, employment contracts, minutes, administrative decisions and financial statements may be signed electronically. There are very few exceptions in which Finnish law requires a document to be signed by a handwritten signature. However, the authentication level of the electronic signature sets some limits to use of electronic signature.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

In Finland, handwritten signatures are only required to ensure a contract is legally binding if separately provided by law i.e., usually written, electronic or verbal agreements are all equally binding. Real estate sale and purchase agreement, estate distribution, partition of property and some other family and inheritance related contract documents (for example a will) cannot be signed electronically.

What is the e-signature law enforceable in your jurisdiction?

The Act on Strong Electronic Identification and Electronic Trust Services sets forth the basic-level regulation on the strong electronic identification services. Also, the Act on Electronic Services and Communication in the Public Sector and the Act on the Population Information System and the Certificate Services of the Digital and Population Data Services Agency affect e-signatures in Finland. The above-mentioned Finnish legislation has been harmonized with eIDAS.

GERMANY

Dr. Sebastian Petrack LL.M., Melchers

European law background

Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ("eIDAS") sets out the basic rules for electronic signatures in order to create signature procedures that are as secure, trustworthy and easy to use as possible. It differentiates between three types of electronic signatures: simple, advanced and qualified. Each of these electronic signatures has a different security standard.

A simple electronic signature ("SES") is data in electronic form that is attached to or logically associated with other electronic data and used by the signer to sign. For example, a scanned handwritten signature or a standard e-mail signature are to be considered SES. It is the least secure type of electronic signature.

An advanced electronic signature ("AES") must, among others, provide a clear allocation to the person signing and enable the identification of the person signing. AES is created by using electronic signature creation data that the signer has under his/her sole control only. AES is linked to the signed data in such a way that any subsequent changes to such data is recognizable. The level of (technical) security of AES is beyond SES which makes it the medium secure type of electronic signature.

There is a number of service providers that provide AES. An AES may be generated by a software installed on a machine. This software provides a certificate/key with which data can be encrypted. One of the commonly known service providers is DocuSign Inc.

A qualified electronic signature ("QES") is an advanced electronic signatures created by a qualified electronic signature creation device and based on a qualified electronic signature certificate. It is the most secure type of electronic signatures and has the same legal effect as a handwritten signature.

A QES usually requires a hardware device, e.g. a smartcard, which generates a certificate and a corresponding card reader. Due to its high (technical) requirements, QES is used in specific cases only. In Germany, all lawyers dispose of a specific lawyers' mail account which meets the requirements of QES (the so-called besonderes elektronisches Anwaltspostfach - "beA"). Every lawyer in Germany is obliged to establish and maintain such beA. Such beA can, among others, be used to communicate with courts and/or authorities electronically or to serve letters to other lawyers. For other users, DocuSign Inc. also offers QES services.

Specifics in Germany

As eIDAS was established by the European Union ("EU") it has direct effect in Germany. Accompanying procedural and detailing rules were introduced by means of the eIDAS Enforcement Act into German law. The prior existing rules on electronic signatures set out by the so-called Signature Act which was established prior to the release of eIDAS were abolished.

With a view to German dogmatic and German law, there is no form requirement for making a legal declaration and/or the conclusion of a contract, in principle. The parties to a contract may thus agree on the conclusion and contents of a contract even verbally. This is a fundamental principle of German contract law and its inherent principle of the freedom of contract.

As a matter of course, the parties may agree on a stricter form at their own discretion, for example on the so-called text form according to which a contract may, e.g. be concluded by e-mail, or written form according to which a contract needs to signed by hand. The strict written form requirement is particularly useful if claims will be enforced in court proceedings and one of the parties will have to present evidence for the existence and content of the contract. According to German procedural law, there is a presumption of completeness and correctness of contract documents which contain a handwritten signature.

Moreover, in the aforementioned cases, the parties to a contract may also agree on SES, AES or QES. The same applies to one-sided legal declarations.

However and in deviation of the aforementioned principle of freedom of contract, in some cases German law requires a contract/legal declaration to be made in written form. In this case, the parties may replace the handwritten form by QES only, unless the law provides otherwise.

The following legal declarations/contracts may be made by QES replacing the mandatory written form:

• court briefs, pleadings and other procedural documents;
• consumer loan agreements;
• temporary rental agreements and termination of rental agreements;
• objection by lessee to termination;
• leases based on stepped or index rent;
• temporary agency work agreement;
• Fixed term employment contract;
• Audit report on the annual financial statement;
• SEPA direct debit mandates.

However, there are legal declarations/contracts where the written form cannot be replaced by the electronic form (i.e. neither QES nor SES and AES). For example:

• termination of an employment relationship;
• contracts of surety;
• reference letter for employees;
• standalone promise to fulfill an obligation;
• acknowledgement of debt.

Also, the following legal declarations/contracts may not be made by QES - moreover, a formal notarial process is required:

• contracts to purchase or transfer real property;
• domestic/family related acts, including marriage contracts;
• contracts of inheritance, contracts waiving inheritance, inheritance sales;
• articles of incorporation of a company with limited liability;
• assignment of shares of a company with limited liability ;
• making the last will.

GREECE

Firm name:  Your Legal Partners

What is the e-signature law enforceable in your jurisdiction?

E-signatures are valid in Greece and recognized by virtue of  Law 4727/2020 on Digital Governance and Electronic Communications, which incorporated the recent Directives (EU) 2016/2101 and (EU) 2019/1024 on the accessibility of the websites and mobile applications of public sector bodies and (EU) 2018/1972 establishing the European Electronic Communications Code, in combination with Regulation (EU) 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market, also known as eIDAS.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Greek Law 4727/2020 provides for the obligation of both the public (courts etc.) and private sector (individuals or legal entities) in Greece to accept as validly concluded all private documents executed using a qualified e-signature (i.e. an e-signature following the conditions set by eIDAS), to the extent such e-signed documents are circulated in electronic means. With regard to the printings of e-signed private documents, these are also mandatorily accepted, provided that they have been certified by any administrative authority or citizen service center or lawyer as true printings of the respective e-signed document. These general rules cover a wide range of contract types, relating to public tenders, consumer transactions, even court proceedings etc. However, there is no specific list of transactions that qualify for use with e-signature, neither a list of exceptions. Though, any exception is provided by the law governing the transactions of a specific nature (i.e. immovable property transactions shall be executed by notarial deeds which require the handwritten signing of documents in the presence of a notary public and therefore e-signing is excluded).

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Greece follows the definitions and classification of e-signatures by level of assurance, set by eIDAS and the relevant EU Directives. A qualified e-signature is treated in Greece as handwritten signature and therefore, a contractual document, which by law or agreement is required to be formulated in writing, that has been entered into by the use of qualified e-signatures, constitutes full evidence as to the content and the author thereof. Greek Law 4727/2020 has provided for a general rule that both the public (courts etc.) and private sector (individuals or legal entities) in Greece are obliged to accept as validly concluded all such e-signed private documents, to the extent they are circulated in electronic means, whereas the same applies to printings of e-signed private documents provided that they have been certified by any administrative authority or citizen service center or lawyer as true printings of the respective e-signed document.

Exceptions to the legality and validity of e-signatures may be provided by the law governing a specific type of transaction, which may require compliance with a specific form.

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Hellenic Telecommunication and Post Commission is the competent Greek authority for the designation and supervision of providers of qualification services for e-signatures and has listed the following trusted entities to qualify e-signatures, published also in the Trusted List Greece (https://esignature.ec.europa.eu/efda/home/#/screen/home) of the European Commission:

• The Hellenic Public Administration Certification Authority
• ADACOM Advanced Internet Applications S.A.
• BYTE Computer S.A.
• Greek Universities Network (GUnet)
• The Hellenic Exchanges - Athens Stock Exchange S.A.

HUNGARY

Dr. Gabriella Galik, KCG Partners

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

In accordance with the eIDAS Regulation, trust services and trust service providers are registered by the Hungarian National Media and Infocommunications Authority. The list of the qualified trust service providers is available here: http://webpub-ext.nmhh.hu/esign2016/szolgParams/main.do.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Formality requirements, i.e. the legal necessity to make a declaration in writing requires special awareness and assessment, as it can be deducted from the technology neutral, abstract provisions of the Hungarian Civil Code that the Hungarian legislator intended to let the judicial practice to decide on what constitutes "written"', including on the document signed electronically. Written formalities are required in many cases, for example, for sale and purchase agreements of real estates, lease agreements or pledge and surety agreements. It may also be the case that the law only requires certain contractual clauses to be in writing (such as a clause on liquidated damages).

If the Hungarian Civil Code requires written form for a document (e.g. agreement on the establishment of pre-emption rights, repurchase rights, purchase options or put option right) it shall be deemed written if it is made in a form that represents (i) the unchanged reproduction of its content (requirement of authenticity of the declaration), (ii) the identification of the declarant (requirement of the integrity of the declaration) and (iii) the identification of the time when it was made. The preparation of an electronic document that is signed with an 'advanced' electronic signature with a time stamp or with a 'qualified' electronic signature can fulfil the requirements of the Hungarian Civil Code.

In the Hungarian corporate law, advanced electronic signatures with a time stamp or qualified electronic signatures may be used when a written form is required (e.g. for the delegation of representation rights to employees of the company).

In employment law, the Hungarian Labour Code however, does not prescribe as a validity condition that the declarant must sign its declaration. It has been repeatedly recognised in several court cases that even an e-mail can meet the requirements of written form under the Hungarian Labour Code.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

According to the eIDAS Regulation, the term of electronic signature refers to the methods of signing an electronic document by electronic means. The current legislation distinguishes between three types: (i) advanced electronic signatures, (ii) qualified electronic signatures and (iii) simple electronic signatures.

(i) Advanced electronic signature

Advanced electronic signature means an electronic signature which is (i) uniquely linked to the signatory; (ii) capable of identifying the signatory; (iii) created by using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and (iv) linked to the data signed therewith in such a way that any subsequent change in the data is detectable. (Article 26 of the eIDAS Regulation)

As detailed above, the Hungarian Civil Code requires the identification of the time when the declaration was made. On the contrary, this condition is not prescribed by Article 26 of the eIDAS Regulation on advanced electronic signature. This results in many confusions, as electronic signatures that meets the requirements of eIDAS Regulation on advanced electronic signature, may not be considered as a valid written declaration under Hungarian law if the date of the signature cannot be detected.

To prove the date and time of the electronic signature, an "electronic time stamp" can be applied, which is a suitable means of identifying the time of a declaration.

(ii) Qualified electronic signature

According to Article 25 (2) of the eIDAS Regulation, a qualified electronic signature has the same legal effect as a handwritten signature. As a result, the qualified electronic signature provided by a trust service provider can have the same effect as a handwritten signature.

In order to create a private document "with full evidentiary value" under Hungarian law, the declarant can sign the document with a qualified electronic signature or by authenticating the electronic document with an authentication service (so called "AVDH" service).

What is the e-signature law enforceable in your jurisdiction?

In Hungary, provisions on electronic signatures are determined by Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ("eIDAS Regulation"), which is directly applicable.

Formality requirements in civil law (the necessity to make a declaration in writing) are regulated by Hungarian Act V of 2013 on the Civil Code ("Hungarian Civil Code") and by certain sectoral legislation such as Hungarian Act I of 2012 on the Labour Code ("Hungarian Labour Code"), Hungarian Act CCXXXVII of 2013 on Credit Institutions and Financial Enterprises or Hungarian Act LXXVI of 1999 on Copyright.

ISRAEL

Gary Copelovitz, Lipa Meir & Co.

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Certified Electronic Signature is a Secure Electronic Signature backed by an electronic certificate from a recognized certification service provider or certificate authority (CA). Currently, two companies in Israel have been certified as having authority to issue Certified Electronic Signatures and recognized as the certification authorities: Comsign and PersonalID.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

The Law stipulates three types of electronic signatures:

1. Electronic Signatures,
2. Secure Electronic Signatures, and
3. Certified Electronic Signatures.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Each type of electronic signature has a different level of evidentiary weight.

Regular Electronic Signature will depend significantly on the circumstances.

Secure Electronic Signature admissible in any legal proceedings as prima facie evidence that the document was not changed after signature, and that the document was signed by means of the applicable signing device.

Certified Electronic Signature prima facie evidence that the document was signed by the individual designated as the owner there.

What is the e-signature law enforceable in your jurisdiction?

1. Electronic Signature Law, 2001 (the "Law")
2. Electronic Signature Regulations (Secure Electronic Signature, Hardware and Software Systems and Application Testing), 2001
3. Electronic Signature Regulations (Registering Approving Authorities and Management), 2001

ITALY

Paola Sangiovanni, Gitti and Partners

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Digital signatures and qualified electronic signatures are managed through entities that are authorized to authenticate signatures. This does not apply to the simple electronic signature and advanced electronic signatures.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Most contracts can be entered into with an e-signature as they do not require a specific form for their validity. However, certain contracts must be entered into in writing or else are not valid (e.g., contracts transferring title to real estate, leases beyond 9 years, contracts establishing a partnership or corporation): for those contracts, simple e-signature is not sufficient and a digital signature or a qualified or advanced electronic signature must be used.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

1. Courts cannot reject an electronic signature as evidence per se.
2. A qualified electronic signature, an advanced electronic signature or a digital signature are largely equivalent to an autographed signature.
3. Courts retain a certain degree of discretion in assessing simple electronic signatures that are not of the qualified, advanced or digital type.

What is the e-signature law enforceable in your jurisdiction?

EU Regulation n. 910/2014, Legislative Decree no. 82 of 2005 (sections 20 §1bis and 21 2bis), sections 1350 and 2702 of the Italian Civil Code. Case law is also still discussing the issue. The law sets forth various types of signatures available (from weaker to stronger): (i) simple electronic signature, (ii) advanced electronic signature, (iii) qualified electronic signature, and (iv) digital signature.

LATVIA

Ansis Spridzans, Spridzans, Snipe & Hramcenko

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Yes

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Any type of contract or document where handwritten signature.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Equivalent to notarized signature.

What is the e-signature law enforceable in your jurisdiction?

Law on Electronic Documents (see: https://likumi.lv/doc.php?id=68521, link in Latvian)

MALTA

Davinia Cutajar, WH Partners

In 2014, the European Union passed Regulation (EU) 910/2014, on electronic identification and trust services for electronic transactions in the internal market (eIDAS), to regulated and authorise electronic signatures across the European Union.

This regulation provides specific guidance on how and when an electronic signature may be used, by first differentiating between three different types of electronic signatures: simple, advanced and qualified, with the main difference between them being the level of security which is attached to each of them.

Simple E-Signature

The simple electronic signature is the least secure of these three types of signatures. Examples of a simple e-signature are scanned signatures and a basic digital signature such as the one made on the terminal of a postman.

Advanced E-Signature

As the name suggests, the advanced electronic signature is the second most secure type of e-signature. It is usually recommended in cases of large financial transactions and business. Unlike the simple e-signature, the advanced e-signature has certain criteria which have to be met in order to be classified as such.

eIDAS states that an advanced electronic signature must follow these security measures:

• Be uniquely and clearly linked to the person signing,
• Enable the person to be formally identified,
• Be created by means under the sole control of the signer,
• Ensure that the document to which it relates cannot be amended.

Qualified E-Signature

The last and most secure type of e-signature is the qualified electronic signature. This is only used in very specific cases as it can be very complex. This type of e-signature has been defined precisely by the regulation and there are specific procedures on how the person signing is identified and how the signature is protected.

A qualified e-signature is the legal equivalent of a handwritten signature and as such it must comply with the same security measures over and above those of the advanced e-signature. In fact, the procedure for the creation of a qualified signature can only be done through a qualified digital certificate, which authenticates the signature, and it must be created using a qualified signature creation device.

A qualified certificate for electronic signatures must include an indication that it was created by a qualified trust service provider. This is an entity which is entrusted by a government body to create such certificates for the creation of a qualified signature. The EU maintains an EU Trust List of these entities and only those listed can provide qualified trust services.

Maltese Law

As an EU Regulation, eIDAS has direct effect in all EU Member States, including Malta.

Electronic signatures have been regulated in Malta for quite some time through the Electronic Commerce Act, however, this Act was later repealed to bring Maltese law in line with eIDAS, and are now regulated by the E-Commerce Act, Chapter 426 of the Laws of Malta, allowing the use of programmes such as DocuSign and HelloSign, which provide both Advanced and Qualified e-signatures, to legally conclude (some) agreements.

The E-Commerce Act gives contracts concluded electronically the same force of law as ordinary contracts concluded by the parties in each other's presence. Both advanced and qualified e-signatures are recognised in Malta and may be used to sign most documents, but not every document may be signed using e-signatures. These specific types of contracts, can be found in the Fifth Schedule of the Electronic Commerce Act and include:

• transactions related to tax
• agreements governed by competition law,
• rights over immoveable property,
• contracts of suretyships,
• information society services matters that are covered by data protection laws or that concern the activities of notaries, the representation of a client and defence of its interests before the courts and gambling activities,
• wills, trusts and power of attorneys,
• family law contracts,
• affidavits and solemn declarations,
• evidence in criminal proceedings, and
• court rules, practices and procedures.

The COVID-19 pandemic has changed the way in which we conduct transactions and sign agreements, with most professionals and people opting for e-signatures over wet ink signatures (for obvious reasons).

In line with the trend, the Malta Business Registry also started accepting documents signed by qualified e-signatures. Much like any regular signed document, in order to be valid, the e-signature must be compliant with the eIDAS and with Article 82 of the Companies Act which regulates the authentication of documents. Article 85 states that such documents can be authenticated by a director, the company secretary, an authorised officer of the company or by an individual specifically authorised by the memorandum, or through a resolution of the board of directors to do so.

POLAND

Ewa Lejman-Widz, Izabella Zyglicka and Partners

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

The list of qualified providers is available on a portal made available by the European Commission. At the national level, the Minister responsible for IT maintains a register of trust service providers. Providers who have been entered in the above register then receive a certificate issued by the National Certification Centre and are included in the trusted list maintained by the Minister for Informatization (https://www.nccert.pl/uslugi.htm).

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

The eIDAS Regulation distinguishes three types of electronic signatures, which are valid in the Polish legal system: 1)electronic signature; 2)advanced electronic signature; 3)qualified electronic signature.

In Poland the qualified electronic signature is equal to a handwritten signature. This means that in cases where the law requires that the agreement be made in writing under pain of invalidity, if the parties want to conclude the agreement electronically, their signatures shall be qualified

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Most documents and contracts that do not require a written form can be signed using a non-qualified e-signature. The following are examples of contracts for which the law requires a written form, which means that only a qualified signature can be used to sign them: employment contract, non-competition agreement, agreement on the transfer of author's economic rights, real estate agency agreement, lease agreement. The parties to a contract may also adopt a written form for changes to the contract.

What is the e-signature law enforceable in your jurisdiction?

As of October 7, 2016, the Law of September 5, 2016 on Trust and Electronic Identification Services is in force. This Act aims to apply Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market, ("eIDAS Regulation").

PORTUGAL

Luiz Augusto, Teixeira de Freitas, Rodrigues e Associados (TFRA)

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Currently active trust service providers:

1. CEGER - Centro de Gestão da Rede Informática do Governo;
2. ACIN iCloud Solutions, Lda:
3. Instituto dos Registos e do Notariado I.P.;
4. NOS COMUNICAÇÕES, S.A.;
5. AMA - AGÊNCIA PARA A MODERNIZAÇÃO ADMINISTRATIVA I. P.;
6. DigitalSign - Certificadora Digital
7. MULTICERT - Serviços de Certificação Electrónica S.A.

The updated list of trust service providers can be consulted at: https://webgate.ec.europa.eu/tl-browser/#/tl/PT

In Portugal, the Gabinete Nacional de Segurança (GNS) is the Supervisory Entity of the State Electronic Certification System, and its main function is to supervise the qualified trust service providers established in the national territory, ensuring that qualified trust services provided by them meet the established requirements, but also the function of managing the national trust lists.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

The Decree-Law in question implements the concepts and definitions stated in the Regulation consolidates existing legislation on the validity, effectiveness and probative value of electronic documents and sets out the rules applicable of the State Electronic Certification System (SCEE), which aims to assure the unity, the integration and effectiveness of the strong digital authentication systems in the electronic relations of individuals or legal entities with the State and among public entities.

These rules are applicable to natural persons or representatives of a legal person, public or private, regarding:

1. electronic documents drawn up by private individuals and Public Administration;
2. electronic identification schemes notified by Member States of the European Union.

As a general legal principle, under Portuguese law contracts are valid if the interested parties reach an agreement, whether said agreement is reached verbally, electronically or through a traditional physical document. Therefore, in general, contracts are deemed as valid even if concluded electronically and it is accepted that electronic signatures possess legal value (with the exceptions set forth in Point 3. below).

In face of the nature of the agreement or document to be signed and the applicable legal provisions, the parties must assess which type of electronic signature must be used (Simple, Advanced or Qualified, as laid out in Regulation (EU) no. 910/2014).

Not withstanding, the qualified electronic signature is the only type deemed equivalent to the handwritten signature, creating an additional legal presumption that (a) the person who affixed the qualified electronic signature is the holder of the signature or is a sufficiently authorized representative of the legal person in question; (b) the qualified electronic signature has been affixed with the intention of signing the electronic document and (c) the electronic document has not been modified since the qualified electronic signature was applied to it.

Please find below a non-exhaustive list of type of contracts that can be executed by electronic signature:

1. Commercial agreements;
2. Lease agreements;
3. Loan agreements up to EUR 25.000,00;
4. License agreements and software and Intellectual Property related agreements, including IP rights assignment;
5. Labor agreements (if the employee waives the right to sign a physical contract) and related acts, although certain rights to be exercised under a labor agreement will not assume an immediate binding nature if the signatures are not subject to notarization;
6. Donation of movable property;
7. Submission of bids for public tenders.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

In general, any agreements that are subject to public registry or that must be executed before a Notary are incompatible with its execution as an electronic document and application of electronic signature therein and therefore require the use of a handwritten signature.

Please find below a non-exhaustive list of type of contracts barred from execution by electronic documents and electronic signature:

1. Contracts that require the intervention of a Notary, given specific formalities on archiving documents that are incompatible with electronic documents;
2. Contracts to purchase or transfer real estate property, with the exception of lease agreements;
3. Loan agreements over EUR 25.000,00;
4. Contracts governed by family law (e.g. pre-nuptial agreements) or succession law (e.g. wills, contract to waive inheritance rights);
5. Mortgage or any surety contracts granted by persons outside the scope of their professional activity;
6. Articles of incorporation of a company;
7. Contract that requires the intervention of courts, public entities or others parties who exercise public powers, with the exception of public contracts governed by the Public Procurement Code;

Nonetheless, the Portuguese Government has approved a bill allowing Notaries to perform certain acts, namely real estate property transfer, by electronic means (e.g. videoconference) which could pave the way for a consistent implementation of electronic documents and signature. However, said diploma is not yet in force and is already being disputed by several professional associations. Therefore, we do not envision a dramatic change on the e-signature legal landscape on the foreseeable future.

What is the e-signature law enforceable in your jurisdiction?

The recently enacted Decree-Law no. 12/2021 of February 9th implemented into national law Regulation (EU) no. 910/2014, on electronic identification and trust services for electronic transactions in the internal market.

Final Note: This information was drawn up in August 2021, being of a general nature and not intended to substitute expert legal advice.

ROMANIA

Daniel Vlasceanu, Vlasceanu, Ene & Partners

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Yes. Certificates based on which electronic signatures are provided may be issued only by trusted entities. Such certificates are valid for a limited period of time (no more than 3 years) and their issuance is subject to a fee payable to such trusted entities.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Any type of contract/ document may be subject to e-signature.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Any document having an EXTENDED electronic signature attached thereto has the value of an original hand signed document (even in court files).

Applicable exceptions to had signed documents are equally exceptions from e-signed documents: documents that have to be signed in front of a notary public do not stand legal binding force if signed with electronic (extended) signature.

What is the e-signature law enforceable in your jurisdiction?

Law 455/2001 regarding electronic signature (republished in 2014)

SPAIN

Marta Marti, Marti & Associates

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

Yes. Qualified trust service providers can be checked via this link:

https://sede.serviciosmin.gob.es/Prestadores/Paginas/Inicio.aspx

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

eIDAS Regulation establishes the legal framework for the use of e-signatures in all EU territory, including Spain. Law 6/2020 mainly establishes legal standards to be met by qualified trust service providers in Spain. eIDAS Regulation distinguishes three categories of e-signatures depending on their level of security: simple, advanced and qualified. A simple e-signature is the least secure and the qualified one gives the maximum reliability and probative value.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

In Spain all 3 categories of e-signatures are used depending on the importance of the document. E-signature shall not be denied legal effect and admissibility as evidence in a litigation procedure solely alleging that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.
Spanish law 34/2002 grants legal effect to contracts signed with e-signature, regardless of its category.

What is the e-signature law enforceable in your jurisdiction?

EU Regulation nº 910/2014, of July 23, on electronic identification and trust services for electronic transactions in the internal market ("eIDAS Regulation") is the main law on e-signatures directly applicable and enforceable in Spain as a EU member state.

Spain has enacted its internal Law 6/2020, of November 11, on trust electronic services. It complements eIDAS Regulation and repeals Law 59/2003, of December 19, on electronic signature which implemented the former Directive.

SWEDEN

Maria Stakovska, Lindmark Welinder

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

The Swedish Post and Telecom Authority (Post och telestyrelsen, PTS) has a list of trusted entities, who is authorized to create Qualified e-signatures, on their website (https://www.pts.se/sv/bransch/internet/betrodda-tjanster-eidas/forteckning-over-anmalda-aktorer/). The EU has a similar list, EU Trusted List (https://webgate.ec.europa.eu/tl-browser/#/).

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

The Regulation differs between three types of e-signatures: simple, advanced and qualified. These have different levels of security and legal status. Simple e-Signature is less secure. Advanced and Qualified e-signatures must meet certain criteria, such as being uniquely linked to the signatory. A Qualified e-signatures must be created by a qualified trusted service provider.

Regarding commercial documents between third parties, the parties decide how the document should be signed.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Generally, e-signatures are acceptable and legally binding in Sweden. According to the Regulation (EU) 910/2014 all types of e-signatures is legally binding but only Qualified e-signatures has the same status as wet ink.

One of the exceptions is sale of real estate. There are some formal legal requirements regarding sale of real estate. Therefore, these documents must be signed with with wet ink.

When using e-signature, everyone who signs must sign with an e-signature.

What is the e-signature law enforceable in your jurisdiction?

Since 2014 the Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS) has been in force which has direct effect in Sweden, as a Member State of the EU.

There is no general Swedish law that regulate e-signatures. Swedish law contains very few formal legal requirements for signatures. Since there is nothing specified in various special laws, e-signature is acceptable between third parties.

SWITZERLAND

Dr. Andre Wahrenberger, Blum & Grob

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

• A qualified certificate can only be issued by the following licensed service providers (as of 09.08.2021):
• Swisscom (Schweiz) AG
• QuoVadis Trustlink Schweiz AG
  SwissSign AG
• Federal Office of Information Technology, Systems and Telecommunication

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

Simple E-Signature: used to verify the integrity of a document like scanned signatures or the one made on the terminal of a postman.

Advanced E-Signature: advanced e-signature which establishes the integrity of a doc-ument as well as the identity of the signature's owner (authenticity).

Qualified E-Signature: qualified e-signature is the legal equivalent to a handwritten signature, based on a qualified certificate which can only be issued by licensed service providers.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Swiss Law does in general not require any formal prerequisite for a contract to become valid so that contracts can also be concluded or made electronically (e.g. by e-mail). Some exceptions exist where mandatory Swiss law requires a certain form for a contract to make it legally valid. The most common form requirement in practice is the written form, which requires a handwritten signature. The only equivalent to a handwritten signature is the qualified e-signature.

What is the e-signature law enforceable in your jurisdiction?

Regulations on the use of electronic signatures (e-signatures) in Switzerland can be found in the Federal Act on Certification Services in the Area of E-Signatures and Other Digital Certificate Applications (Bundesgesetz über die elektronische Signatur, ZertES) and the associated ordinance on e-signatures (Verordnung über die elektronische Sig-natur, VZertES).

UNITED ARAB EMIRATES

James R. Hagerty, Kalbian Hagerty

Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?

To add another layer of protection, the electronic signature may be supported by an electronic authentication certificate issued by an authentication services provider which confirms the identity of the person or entity holding the electronic signature and the signature tool used. The UAE Telecommunications and Digital Government Regulatory Authority maintains a list of approved authentication services providers.

Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.

According to the Electronic Transactions Law, an electronic signature is a signature composed of letters, numbers, symbols, sounds or electronic processing systems attached or logically connected to an electronic message imprinted with intent of ratification or adoption of that message. An electronic signature can be used in any type of contract except for the list noted under Section III below.

An electronic signature is considered a secured electronic signature if at the time of execution, it:

1. Is attributed only to the person who used it.
2. It is possible to prove the identity of person who used it.
3. It is fully controlled by the person who used it whether concerning its creation or usage at the time of signing.
4. It is connected to the concerned electronic message by a link that provides reliable proof as regards to the signature validity, accordingly, if the electronic record is changed, the electronic signature will no longer be protected.

What is the legality of e-signatures in your jurisdiction? Are there key exceptions?

Electronic signatures have the same legal authority as a physical signature. A party may rely on electronic signatures whenever such reliance is deemed reasonable and for any transaction except for the following:

1. Transactions and matters concerning civil status like marriage, divorce and wills.
2. Title deeds of real estate.
3. Bonds in circulation.
4. Transactions concerning the sale and purchase of real estate, its disposition and rental for periods in excess of ten years and the registration of any other rights related to it.
5. Any document required by law to be notarized before a Notary Public.
6. Any other documents or transactions to be excluded by a special legal term.

What is the e-signature law enforceable in your jurisdiction?

The UAE Federal Law No. 1 of 2006 Concerning Electronic Transactions and Commerce (the "Electronic Transactions Law") regulates electronic signatures in the UAE.

UNITED KINGDOM

Clayton Beermaan, Edwin Coe LLP

Introduction

The following note will look at the use of electronic signatures in law in England and Wales. The use of electronic signatures have increased due to the Coronavirus pandemic and the fact that lockdowns and coronavirus restrictions have made it harder for people to sign documents in wet-ink. As a result of this, parties have resorted to using electronic signature platforms such as DocuSign to sign documents. This has raised a number of issues and as such the following guide seeks to address and provide for clarity on these.

Electronic signature platforms and how they work

Electronic signature platforms such as DocuSign typically work as follows:

• the administrator uploads a document to a secure cloud based platform;
• the administrator then specifies who the document should be signed by and how;
• the platform then sends the document to the relevant signatories and requests that they 'sign' the document;
• the signatory then signs the document, by clicking a button to denote that he wishes for his electronic signature to be inserted;
• once the document is fully signed it is returned to the administrator for review and to be dated and circulated.

When a signatory logs in to the platform to sign the document the platform will capture the key core information including the signatory's email address, their IP address and their data time of access. This helps to ensure the security of the document.

The law in England and Wales

At present, the law in England and Wales does not set out a prescribed method for the use of electronic signatures.

The generally accepted position in relation to a contract provides some guidance in that it is commonly established that a contract need not to be in writing as long as the essential elements for a contract can be established, these being there is an offer, acceptance, agreed terms, consideration and intention that for both parties to be bound by the contract. This position is slightly different for deeds and in which there are other particular formalities which are required to be complied with.

One issue which can arise out of the use of electronic signature platforms can be the intention of the parties to be bound. This is normally satisfied by electronic signature platforms by the signatory applying their signature to the contract and as such this would constitute sufficient evidence of their intention to be bound by the agreement being signed.

It is therefore commonly accepted that there is not much of issue in relation to electronic signatures for simple signatures i.e. those signatures which are not required to be signed as deeds, however, the position in relation to deeds is more complicated and is discussed below.

Electronic signatures and deeds

In order for a document to constitute a deed it must be:

1. in writing;
2. expressed to be a deed;
3. delivered as deed; and
4. executed as deed.

The first three requirements can generally be satisfied by contractual drafting, however, in order for (4) to be satisfied, the relevant statutory provisions must be complied with and will differ for overseas companies.

The most significant issue facing a simple element from its signature platforms is meeting the requirements for a deed to be witnessed in the presence of another individual. The creation of an electronic signature is not something which can easily be witnessed in the sense that this is done virtually however, the signatory's actions in marking their intention to be bound by inserting their signature to the document or clicking a box which allows them to do so can be witnessed

A report by the Law Commission, which was published in September 2019, has confirmed that electronic signatures can be witnessed in the way specified above and the report further stated that an electronic signature can still be deemed to be witnessed correctly even though a witness may not be able to see the digital information but they still see the signatory press the relevant button to add their signature to a document on the screen.

However, a deed must be signed in the presence of a witness and this can lead to issues in relation to electronic signatures especially in light of the Covid 19 pandemic.

The risks of using simple electronic signature platforms

We believe there are three principal risks in using simple electronic signature platforms to enter into deeds and contracts. These are as follows:

1. The counterparty or third party argues that a simple electronic signature platform cannot meet the formalities required to execute a deed;
2. the counterparty or third party argues that there was no contract because an electronic signature is not a valid form of entering into the contract; and
3. the counterparty argues that it fact did not sign the contract, someone else accessed the electronic signature platform fraudulently, without the requisite authority or by mistake.

Points 2 and 3 have been addressed previously however, in relation to point 1 in regard to the validity of deeds there is risk that whilst a contract can be created by using simple electronic signature, a deed might not be able to.

However, the Law Commission report dismisses this and this can also be worked around in the sense that companies and LLPs can create a deed without the need for a witness if two directors or a director and a secretary sign the document. This can alleviate concerns surrounding the witnessing of electronic signatures for corporate entities however, the risk still exists for individual sellers or signatories.

Electronic Signatures and the Land Registry

The Land Registry are now accepting electronically signed deeds as set out in their Practice Guide 8. This includes deeds which grant a legal charge over property, and interestingly permits one party to sign electronically and the other using wet ink, where counterpart documents should be used. Witnessing requirements remain necessary, and where an electronic signature is being witnessed, then the witness must be in the physical presence of the signatory when the electronic signature takes place.

Where electronic signatures are used, the following points should be considered during the signing process:

1. Parties must mutually agree to use electronic signatures and adopt a single signing platform in relation to the deed.
2. Parties must have conveyancers acting for them in the transaction, save for when a lender's discharge/release, where only the lender shall need to be represented.
3. The set-up and control of the signing process through the signing platform must be managed by a conveyancer.
4. If a deed is being registered at the Land Registry, the conveyancer must submit the application electronically together with a PDF form of the completed deed. This application should be accompanied by a certificate from the conveyancer stating "I certify that, to the best of my knowledge and belief, the requirements set out in practice guide 8 for the execution of deeds using electronic signatures have been satisfied."

Our Property team recently summarised the key points to be aware of when signing documents electronically, and the full article can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.