Amsterdam / Enschede, 2022-06-27

Electronic signatures are playing an increasingly important role in signing contracts and other documents. The European Directive has also been implemented in the Netherlands. This article explains the role it plays and the recommendations surrounding electronic signatures in the Netherlands.

Also examined here is the question of whether electronic signatures in the Netherlands fulfil the "written form requirement" and the extent to which it is possible to sign electronically in the Netherlands.

At the European level, the rules on electronic signatures are set out in the eIDAS Regulation. Article 3 of the Regulation distinguishes between three types of signatures:

- Electronic signature: data in electronic form attached to or logically linked with other data in electronic form and used by the signatory to provide the signature (Part 10); e.g.,

• a scan of a paper signature
• the (typed) signature at the end of an email

- Advanced electronic signature: fulfils the following requirements (Article 13 Part 11 and Article 26 of the eIDAS Regulation):

a. It is clearly linked to the signatory;

b. It allows the signatory to be identified;

c. It has been created using electronic signature creation data which the signatory may use under their sole control with a high degree of confidence; and

d. It is linked to the data signed with it in such a way that any subsequent modification of the data can be detected.

- Qualified electronic signature: an advanced electronic signature which

e. is created by a qualified signature creation unit and

f. is based on a qualified signature certificate;

The qualified certificate must also be issued by a qualified trust service provider that fulfils the requirements of Annex I of the eIDAS Regulation (Article 3, Part 15 of the eIDAS Regulation).

The eIDAS Regulation only prescribes legal effect for qualified electronic signatures. The following shall apply to the other electronic signatures: “An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.”

This means that qualified electronic signatures have the same effect in each Member State: they have the same legal effect as a handwritten signature. With regard to the other electronic signatures, the legislation varies from one Member State to another.

Dutch Regulations

Article 3:15a BW (the Netherlands Civil Code) regulates the legal effects of simple and advanced electronic signatures.

"An advanced electronic signature (Part 11) and another electronic signature (Part 10) have the same legal effects as a handwritten signature if the signature method used for those two electronic signatures is sufficiently reliable, taking into account the purpose for which the electronic signature is used and all other circumstances of the case."

This Article does not specify what constitutes a sufficiently reliable electronic signature. There is an open standard which renders giving a general indication of when the requirements in Article 3:15a BW have been fulfilled difficult. It is assumed that a simple electronic signature generally suffices for simple transactions, whereas an advanced electronic signature is required for more complex transactions which demand greater reliability and security.

When determining whether a transaction is simple or complex, the economic value and the nature of the transaction play a role. As the importance of the legal act increases, the electronic signature must be supplemented with additional safeguards.

The parties may decide for themselves which type of electronic signature they consider to be desirable for which legal act. In most cases, the parties will record their choice in their contractual relationship for evidentiary purposes. Should the parties refrain from making such a choice, in the event of a dispute, the court will examine whether the signature actually used is sufficiently reliable, taking into account the nature of the transaction and all other circumstances of the case.

Evidence

If a qualified electronic signature is used, it will have the same legal effect as a handwritten signature (Article 25 (2) of the eIDAS Regulation). This means that it has a binding evidentiary effect (Article 156 in conjunction with Articles 156a and 157 (2) Rv).

The parties may conclude agreements regarding the reliability of advanced and other electronic signatures. This is not possible in the case of qualified electronic signatures, as this is stipulated in the Regulation.

This party agreement is a circumstance which is taken into account when assessing the reliability of the method used for the signature. In the event of a dispute, the judge will examine the cases based on the criteria set out in Article 3:15a BW.

Should the judge find that the simple or advanced electronic signature is sufficiently reliable, this document will have a binding evidentiary effect in accordance with Article 3:15a BW in conjunction with Article 156a BW in conjunction with Article 157 (2) BW. Should the judge decide that an electronic signature is not sufficiently reliable, the electronic document will only have free evidentiary value (Article 152 Rv).

There remains little case law on these issues.

Use of electronic signatures in the Netherlands

Qualified electronic signature: This action is accompanied by a qualified certificate. This certificate is part of the digital code which the sender adds to their message There are special organisations which issue certificates, the certification service. Public Key Infrastructure (PKI) The government issues the certificates used by the Dutch government. Radiocommunications Agency Netherlands monitors the provision of certification services.

Various providers from whom this service can be purchased can be found online (DocuSign, Adobe).

Advanced electronic signature (AES): This option is not mentioned on the government website. The eIDAS Regulation mentions this but does not provide any further explanation.

Other electronic signatures: This is generally not recommended for business transactions of significant value.

Conclusion

A qualified electronic signature has the same legal effects as a "normal" signature. This means that the signed document has a binding evidentiary effect.

A document signed using an advanced or other electronic signature will only have binding evidentiary effect if the court considers the signature method to be sufficiently reliable in relation to the nature and value of the transaction. If a judge does not consider the type of signature to be sufficiently reliable, Article 3:15a BW will not apply and the document will have free evidentiary effect. It should be noted that, if the court does not consider the signature method to be reliable, it is highly unlikely that it will confer any significant evidentiary value.

Author: Advocaat Irith Hofmann, Damste Advocaten, Netherlands