eSignature Legality in Belgium

eSignature Legality Summary

Under Belgian 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 (this is known in Belgium as the ‘principle of consent’).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 Article 1322 of the Belgian Civil Code and Article 25 of the eIDAS Regulation, to support the existence, authenticity and valid acceptance of a contract.

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:

• Commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements

• Consumer agreements, including new retail account opening documents

• Ordinary rental and lease agreements.

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

• QES - (using electronic identity card) – employment contracts (Article 3bis of the Employment Contracts Act of 3 July 1978)

• QES - certain corporate documents, such as assignment of nominative shares, stocks or bonds when recorded or relevant registries (Article 504, Belgium Company Code)

• QES - signature of certain forms, including tax returns and applications, filed with public authorities

• QES - consumer credit contracts

• Contracts that create or transfer rights in real estate, (except for lease contracts, which one should be able to sign validly via any form of electronic signature subject to proper contractual evidentiary rules;leases) (Article XII.16 of the Economic Law Code)

• Contracts requiring by law the involvement of courts, public authorities or professions exercising public authority (i.e., public/authentic deeds, notably entered into before a notary)

• Contracts of suretyship granted and involving collateral securities furnished by persons acting for purposes outside their trade, business or profession; and (Article XII.16 of the Economic Law Code)

• Contracts governed by family law or by the law of succession (e.g.,, such as matrimonial contracts, etc.); and deeds of adoption and pre-divorce agreements

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.

• Author rights’ transfers or licenses subscribed by the original rights’ holder

[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.

As a Tiered eSignature Legal Model country, 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, Belgium as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In addition, Belgium 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 Belgian certification body, but necessarily requires digital signature technology, and can be interpreted as having to meet certain ETSI certifications to be valid. Belgium maintains a full list accessible to the public of authorized qualified electronic certificate providers together with other countries in the European Union.