We are content to see that our past webinars on e-signature sparked so much interest and we would like to thank those who attended. We have received countless questions and since it was impossible to answer all of them on the spot, during a 30-45 minute webinar, we will address them in a series of articles. Today, we start by analysing into more details how an e-signature is recognised from a legal standpoint within, as well as outside, EU member states.
If you want to watch the recordings of webinars in full, they are available online on our LuxTrust webinar channel.
If a contract is signed electronically within an EU member state, does the eIDAS regulation apply as is? Can each EU member state make different arrangements or have its own interpretation/application of this regulation?
We all know by now that the European framework for electronic signatures is given 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 (or as familiarly known the “eIDAS regulation”).
Thank to this regulation, the e-signature understanding and use are (to certain extent) harmonised within the internal market. Practically, a document signed with an electronic signature (as defined in eIDAS) cannot be refused as proof in the event of a dispute within the European Union.
However, the EU member states may add their own local legal specificities to the use of the electronic signature. These can be related to the exclusion of the electronic signature for specific documents or to the obligation of using a specific e-signature level (e.g. qualified level) for other documents. For example, in Luxembourg, an act which requires the intervention of a notary cannot be performed remotely by the means of an electronic signature.
Local amendments or requirements do not apply to the qualified electronic signature and, as a matter of fact, to any other qualified trust service (e.g. the qualified timestamp, the qualified electronic seal). A qualified e-signature or a qualified stamp generated by a Qualified Trust Services Provider (QTSP) in an EU country X is automatically applicable and equally recognised in every other member country, WITHOUT a country being able to add additional rules. This is possible because the QTSP is subject to the specific constraints of the supervisor in the country where it has its head office. In turn, the responsible supervisor is subject to eIDAS rules which are equally applicable throughout Europe and in states which also comply with eIDAS such as EFTA countries.
Can the qualified e-signature be used from outside EU (for example USA, Canada) by residents of these countries?
The eIDAS qualified e-signature can be used from a country outside the EU, but, to our knowledge so far, an automatic mutual recognition agreement between the EU and other countries of the world does not exist. So, we recommend you to check which additional formalities are triggered under applicable laws and regulations (for example, the law applicable to the formal validity of the agreement etc.). You should also seek legal opinions regarding the validity and acceptance of electronic signatures in the jurisdiction in which a future litigation may take place.
Anne Reuland, our Chief Legal & Regulatory Officer, and Thomas Kopp, our Chief Scientist, worked together to provide you with the answers to these two questions. Should you have any other inquiries regarding eIDAS e-signatures and their legal recognition, feel free to contact us here.
Disclaimer: The above represents LuxTrust’s understanding of the relevant law or regulation and should not be taken, relied on or interpreted as a legal opinion. Customers are encouraged to seek independent legal advice before acting on this information.