eSignature Legality in Germany

E-Signature Legality Summary

As Germany 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 (the eIDAS Regulation) govern and are directly applicable in Germany. The eIDAS Regulation repeals Directive 1999/93/EC. 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 Germany.

To ensure effective enforcement, Germany has additionally adopted a law implementing eIDAS, the so-called Trust Services Act (Vertrauensdienstegesetz or VDG) that aims to facilitate the use of electronic trust services in Germany. The law went into force on 29 July 2017.

Most of the relevant German national regulations can be found in the German Civil Code (BGB). German law contains many provisions which set forth certain form requirements, particularly the “written form”. The written form is, for example, required by the German Civil Code for canceling a rental contract, the notification of an assignment of rights, or the assignment of rights underlying a mortgage. The BGB contains various “forms” for which specified types of declarations must be in to be valid, for example (i) “written form,” (ii) “text form,” and (iii) “agreed form.” The BGB states that the written form may be replaced by electronic form, unless the statute leads to a different conclusion.

Notable Changes in E-Signature Law Since 2020

None. 

Types of Permitted Electronic Signature

eIDAS makes a distinction between three types of electronic signatures: a simple “electronic signature,” an “advanced electronic signature” (AES), and a “qualified electronic signature” (QES).

A simple “electronic signature” means 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).

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

A “qualified electronic signature” (QES) means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified (digital) 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 “qualified electronic signature” 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).

German law does not define an electronic signature independent of eIDAS.

Documents That May be Signed Electronically

In general, contracts do not have to be in any specific form to be valid. Except where the German law prohibits, either directly or indirectly, the use of electronic signatures or requires that the “written form” be used (which requires use of a qualified electronic signature), then any non-qualified electronic signature may be used. The following categories of agreements typically do not impose a “written form” requirement under German law:

• HR (except termination of employment relationships)

• Procurement (except conclusion of installment supply contracts)

• Corporate Resolutions

• NDAs

• Software Licensing

• Healthcare

• Banking

• Real Estate (except rental contracts, assumption of mortgage debt, and notification of assignment of a claim underlying a mortgage)

• Lending (except notification of assignment of right by the creditor to the debtor and validity of a deed in which the holder of the deed is promised a benefit)

• Chattel Paper

• Insurance

• Education

• Life Sciences

• Technology sector

• Documents to be Recorded

• Consumer Transactions, and

• Government Filings

Further Guidance

An electronic document signed using a qualified electronic signature establishes full proof that the declaration was made by the signature key holder, provided that the qualified signed electronic document is authentic itself. Under the German Code of Civil Procedure, a qualified electronic signature provides “prima facie” evidence of authenticity. The opponent of the evidence may only refute this assumption by providing facts which demonstrate that the declaration was not made with the will of the signature key holder.

Non-qualified electronic signatures “only” benefit from the non-discrimination clause which provides that the legal effect and admissibility of an electronic signature should not be refused as evidence in court solely because it is in electronic form or because it does not meet the requirements of a qualified electronic signature. For simple electronic signatures and advanced electronic signatures, there are no specific privileges regarding the burden of proof or the assessment of evidence. To help ensure reliability for any non-qualified electronic signature, parties can use authentication methods and an audit log.