eSignature Legality in Austria

eSignature Legality Summary

Under Austrian law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Sec. 883 General Civil Code). To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Sec. 292 et seq. Civil Procedure Code, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.

The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that 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 does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.

Notable Changes in E-Signature Law Since 2020

None.

Documents That May be Signed Electronically

Use cases where a Standard Electronic Signature (SES) is typically appropriate include:

• HR documents, such as regular employment contracts, except those with apprentices, non-disclosure agreements, privacy notices, benefits paperwork and other new employee onboarding processes, except termination notices

• Commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements

• Consumer agreements, except consumer loan agreements, including new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals, and policies

• Residential and commercial lease agreements (except limitations of the tenant’s rights, such as a definite term for the lease or any markups on the statutory base rent)

• Service agreements, software license agreements

• Copyright, trademark and patent licenses

• Intangible property transfers (e.g., patent and copyright assignments) other than agreements on the ownership of employee inventions.

Use cases where an electronic signature other than SES may be required include:

• AES - under the Auditor Quality Assurance Act, an auditor of annual accounts is required to use an AES if he or she wishes to sign a transparency report electronically or electronically certify the completeness of his data contained in a register of auditors (Sec. 24, 25 Auditor Quality Assurance Act)

• AES - electronic signatures created by the judiciary and administrative authorities have to be AES (Sec. 19(1) E-Government Act; Sec. 89c(3) Judicial Organization Act)

• QES - employment agreements with apprentices (Lehrlingen) (§§ 9(4), 12(1) Job Training Act)

• QES - agreements on the ownership of employee inventions (Sec. 7(1) Austrian Patent Act)

• QES - stand-alone promises to fulfill a third party’s obligation (declarations of guarantee) if made by persons beyond their commercial, business or professional activity (Sec. 1346(2) General Civil Code)

Further Guidance

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

• Written form or notarization - legal transactions under family and inheritance law

• Official certification, judicial or notarial authentication or a notarial deed (Sec. 1 Notarial Deed Act) required for:

• Contracts between spouses regarding the allocation of ownership of property acquired by either spouse during the marriage;

• Contracts for sale, exchange of goods, an annuity, or a loan if entered into between spouses;

• A declaration of debt issued by one spouse to the other;

• A contract of donation between spouses if the property is not handed over to the receiving spouse; or

• Legal transactions entered into by blind persons.

• Formal notarization - declarations of intent, legal transactions or petitions to be entered in the land register (Section 31, Land Register Act), companies register (Section 11, Company Register Act), trademark register (Section 28, Trademark Act), patent register (Section 64(6,) Patent Act), or other official register

• Contractual provisions in lease agreements that are not in the interest of the tenant (e.g. a definite contractual term or any markups on the statutory base rent)(Section 16, Tenancy Act)

• Employee consent to the use of surveillance systems if such consent should be non-revocable for the term set out in the consent declaration (Section 10(2) Employment Contract Law Amendment Act)

• Amendments to an employment contract, including those regarding maternity/paternity, study leave or reduction of work hours, leave of absence or reduction of work hours to care for an ill or dying family member

• Formal notarization - articles of incorporation of a company with limited liability

• Formal notarization - assignment of shares of a company with limited liability

As a Tiered eSignature Legal Model country, Austria supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. While QES is only legally required for limited types of transactions, as previously discussed, Austria as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In addition, Austria is in a minority of countries to have specific cases where a third type of electronic signature, the AdES (Advanced Electronic Signature) can serve as a replacement for a QES. An AdES does not have to be approved by a local Austrian certification body, but necessarily requires digital signature technology, and can be interpreted as having to meet certain ETSI certifications to be valid. Austria maintains a full list accessible to the public of authorized qualified electronic certificate providers together with other countries in the European Union.

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.