Electronic signature and acceptability under Belgian law

1. What is an electronic signature?

For the definition of an electronic signature, for which the term digital signature is also often used in practice, Belgian law refers to Articles 3.10° to 3.12° of eIDAS Regulation (Regulation - 910/2014 - EN - e-IDAS - EUR-Lex). The European eIDAS Regulation defines electronic signature as "data in electronic form attached to or logically connected with other data in electronic form and used by the signatory to sign".

Based on this broad definition, it can be said that any electronic technique that allows the author of the process to be identified and which demonstrates an expression of the author's will with regard to the relevant writing qualifies as an electronic signature. We therefore use the digital signature more often than we think. The PIN we enter to withdraw money from the bank, the click on the approval button in a personnel management system, the signing of your digital tax return with your eID and card reader are all examples. 

The eIDAS Regulation - and thus also Belgian law - distinguishes between 3 types of electronic signatures according to the level of security that can be achieved with them: 
(i)     the ordinary/simple electronic signature (“SES”);
(ii)    the advanced electronic signature ("AES"); and
(iii)   the qualified electronic signature (“QES”). 
 

a) Ordinary electronic signature

Ordinary electronic signature coincides with the general definition of e-signature. Therefore, every advanced or qualified signature is an ordinary electronic signature, but conversely, not every ordinary electronic signature is an advanced signature or qualified signature.

Examples of an ordinary electronic signature are:

• the scanned signature;
• the signature with a pen on a touchscreen;
• biometric signatures such as fingerprint recognition;
• a login and password to access a website, and 
• clicking an "I agree" button

 

b) Advanced electronic signature

The advanced electronic signature is an e-signature that additionally meets the following requirements:

1. it is uniquely linked to the signatory;
2. it allows the signatory to be identified: the signature must therefore be traceable to the signatory;
3. it is created using data that the signatory, with a high level of confidence, can use under his sole control: the data used to create the signature must be available only to the signatory; and
4. it is linked to the data signed with it in such a way that any change can be detected afterwards.

The addition of these four conditions essentially ensures that adequate evidence is gathered about the identity of the person signing.

Examples of an advanced electronic signature include:

• the token your bank card generates when signing bank transactions;
• software products that provide a system based on e-mail authentication, SMS authentication

 

c) Qualified electronic signature

The qualified electronic signature corresponds to an advanced e-signature created by a qualified digital signature creation device and based on a qualified certificate issued by a qualified trust service provider. It is the e-signature with the highest level of security. In addition to the requirements that apply to the advanced signature, a 'qualified device' and 'qualified certificate' should thus additionally used. 

A qualified device is software and/or hardware that is configured to create a digital signature and meets various technical requirements described in the eIDAS Regulation. An example is the eID card reader or a USB token, which are in the physical possession of the signatory and which they can then use to create an e-signature themselves. 

A qualified certificate is a certificate that links the data for validation of electronic signatures to a natural person and at least confirms that person's name or pseudonym. It can be seen as a kind of electronic proof of identity. A qualified certificate can only be issued by an authorized (qualified) trust service provider. One is only a qualified trust service provider  if one has been added to the list of qualified trust service providers of an EU Member State. If a trust service provider is accredited in one Member State, its services (for which it is accredited) are also considered qualified in the other EU Member States. The Trusted List of each EU Member State is available on the European Commission website (eIDAS Dashboard).  The list for Belgium is also published on the website of the FPS Economy (Electronic signature and other trust services | FPS Economy). 

An example of a qualified electronic signature could be signatures using the identity card (e.g. via a card reader or Itsme).

2. Legal validity - acceptability and probative value of electronic signature

 

a) Legal effects of electronic signatures

An electronic signature is accepted under Belgian law. A digitally signed document, regardless of the type of electronic signature, is thus valid in principle. However, if the digital signature is challenged, there is a distinction in probative value depending on the type of electronic signature

Only the qualified electronic signature is fully equated with a handwritten signature and all European member states must attach the same legal effects to it. A document signed with the qualified signature will therefore qualify as a document with legal probative value in Belgium. If someone wishes to dispute the authenticity of such a digital signature, he or she will have to provide the proof themselves.

Unlike the qualified electronic signature, the advanced and ordinary electronic signature are not equated with a handwritten signature. If a party wishes to challenge the validity of an ordinary or advanced electronic signature, it is up to the person who wishes to rely on the validity of the electronic signature to prove it.

In such a case, after all, the court has its own discretion and a true signature will only exist if further investigation concretely shows that the digital signature is attributable to that person and that the preservation of the integrity of the content of the digitally signed document has been demonstrated. If the court finds that this is not the case, no legal probative value will be attributed to the digitally signed document that is sought to be invoked. However, this does not mean that the electronically signed document will no longer have any value at all in that case. It could still be qualified as a presumption or beginning of evidence.

Although the law attaches the same legal effects to the ordinary and advanced electronic signature, a judge will normally be more likely to attach a higher probative value to the latter. Because of the additional requirements met by the advanced electronic signature (aimed at confirming the identity of the signatory), it has a higher level of security, and it will be easier to conclude that the functional criteria of a signature have been met. However, if one wishes to completely exclude the judge's discretion, one should opt for the qualified electronic signature. 
 

b) Restrictions around use of the electronic signature

If one wishes to use an electronic signature, one should first check whether one can use the digital signature for the document in question and, if so, whether there is freedom of choice depending on the type. For example, there are certain documents for which legislation still requires a physical signature (despite the fact that the qualified electronic signature is equated with the physical signature). 

For example, Art. XII. 16 of the Belgian Code of Economic Law states that if there are practical obstacles to fulfilling a legal or regulatory form requirement in the context of the formation of a contract by electronic means, the court may require a handwritten signature for the following contracts:

• contracts creating or transferring rights in respect of immovable property (excluding rental rights);
• contracts for which the law requires the intervention of the court, authority or profession performing a public duty (e.g. notarial deeds);
• contracts for personal and collateral security provided by persons acting for purposes outside their trade or profession
• contracts governed by family law or inheritance law (e.g. adoption deeds, marriage contracts).

The law also sets  requirements around the type of e-signature for certain documents. For example, to date, it has been required that an employment contract can only be signed electronically using the e-signature created by the electronic identity card (eID). A qualified electronic signature is also always required for authentic deeds (Article 8.15 of the Civil Code).

In addition to legal requirements, a party, e.g. a government agency, may also impose conditions and hence request a handwritten signature. For example, the registry of corporate courts requires publication forms to be signed with physically at all times. Moreover, in the context of publication, for documents that need to be delivered together with the publciation forms - such as minutes or written resolutions of the general meeting when a director is appointed- the registry does not accept the use of a print-out of an electronically signed document. Indeed, when a digital document is printed out, there is only a copy and the technical reliability of the digitally signed document is lost. However, the registry is partially accommodating the practice and therefore provides an intermediate solution.  An electronically signed document can be materialized in the first place by having the document printed on paper, subsequently signed by a person authorized to represent the company (e.g. a director). Another option envisaged is the authentication by a notary of the electronic signature or to materialise it by technologies that allow the verification of the printout of the digital document (e.g. making it possible via a barcode or even a simple reference code, affixed to the printout, to retrieve the original digital document, bearing the original digital signature).

Looking for more info or concrete advice?
Contact our Legal team at: legal@bdo.be or contact our experts directly:

• Ruben Ruysbergh
• Karen Keuleers
• Bram Demeester
• Pierre Queritet
• Anne-Charlotte Lelièvre
• Didier Leclercq