eSignature Legality in The Netherlands

E-Signature Legality Summary

As the Netherlands is one of the Member States of the European Union (EU), the provisions of the EU Regulation 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, also known as the eIDAS Regulation, are directly applicable in Belgium. This Regulation, in its Chapter 3 “Trust Services” and under Section 4 “Electronic Signatures,” governs the use of electronic and digital signatures in the whole EU, including the Netherlands.

The eIDAS Regulation is implemented into section 3:15a of the Dutch Civil Code (DCC).

Types of Permitted Electronic Signature

The eIDAS Regulation defines an "electronic signature” to mean 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 (Article 3.10 eIDAS).

The eIDAS makes a distinction between three types of electronic signatures: a "simple" electronic signature, an "advanced electronic signature," and a "qualified electronic signature."

• A “simple" electronic signature is an electronic signature not meeting definition requirements for higher levels of electronic signature, i.e., AES or QES. Thus, typing one´s name at the bottom of an email might constitute a simple electronic signature.

• An “advanced electronic signature” (AES) is a type of electronic signature that meets some additional requirements so that a higher level of trustworthiness can be met.

• A “qualified electronic signature” (QES) is a type of advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures (Article 3.12 eIDAS). This certificate must be issued by a trust service provider that is on a trusted list of qualified trust service providers of an EU member state and the qualified electronic signature creation device must be certified by an EU member state. A QES is the only electronic signature level to have special legal status in EU member states, being legally recognized as the equivalent of a written signature (Article 25.2 eIDAS).

Dutch law is completely aligned with the eIDAS since it is a Regulation and does not maintain further definitions.

Documents That May be Signed Electronically

Only for a small number of agreements, or for some specific deviations from the provisions of the of the Dutch Civil Code (DCC), does the DCC require a "written agreement."

6:227 DCC requires that if the document be in writing, it can be electronic if the following criteria are met:

• It is consultable by parties;

• The authenticity of the agreement is sufficiently guaranteed;

• The time of conclusion of the agreement can be determined with sufficient certainty; and

• The identity of the parties can be established with sufficient certainty.

Dutch contract law does not require written agreements to be signed; generally mere "consent" constitutes a valid agreement. In all situations where a signature is required or desired, such signature may be provided in electronic form.

Further Guidance

For transactions that are "complex," greater reliability and security is required and, thus, an AES or QES may be more appropriate. Dutch law does not define "complex," therefore, it is not clear in general terms whether a transaction is simple or more complex. Parliamentary history shows that the economic value and nature of the transaction play a role in this.

Specific prohibitions may apply in relation to documents that have execution requirements such as notarial deeds, powers of attorney for the execution of the notarial deeds, oaths, affirmations, affidavits, statutory declarations, or other enduring documents. Additional considerations may also apply in finance and real estate transactions.

Documents with a QES normally constitute binding evidence in court, whereas the court may grant such value to other documents (signed electronically or not signed at all) as it desires. For documents signed with an electronic signature other than a QES, the Dutch Supreme Court confirmed that the benchmark is that the signature must be "sufficiently reliable" for the document to be classified as binding evidence.

Enforcement Penalties for Non-Compliance

Under Dutch law, the parties to a contract cannot rely on statutory enforcement penalties in case of non-compliance. The parties can challenge the validity of the electronic signature in case of non-compliance and subsequently the enforceability of the agreement. Given that most agreements under Dutch law can be entered into regardless of form (whether electronic or paper) , the mere non-compliance of an electronic signature does not automatically result in the non-enforceability of an agreement. Courts will typically also look at the reasonable expectations of the parties based on statements made and/or their conduct when determining whether an agreement was concluded.

Seminal Case Law

The following three cases are examples of where Dutch courts have addressed the use of electronic signatures:

• Dutch Supreme Court, 14 June 2019, ECLI:NL:HR:2019:957 (3.1.7, 3.1.8, 2.1.9);

• District Court The Hague, 8 May 2018, ECLI:NL:RBDHA:2018:6370; 

• District Court Zeeland-West-Brabant, 7 October 2020, ECLI:NL:RBZWB:2020:4817; 

• District Court Rotterdam, 18 March 2022, ECLI:NL:RBROT:2022:3242

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• eIDAS Regulation (EU) No. 910/2014

• Electronic Signatures Act, section 3:15a of the Dutch Civil Code (in Dutch)