Is Docusign Legal in Germany

Civil law systems currently account for 65% of the world`s legal systems. These systems are based on codified laws that are regularly revised. While common law systems focus on precedents, civil law systems focus on a comprehensive set of principles. The following legal declarations/contracts may be submitted by QES instead of the written form requirement: A “qualified electronic signature” (QES) is an advanced electronic signature created by a qualified electronic signature creation device and based on a qualified (digital) certificate for electronic signatures (Article 3.12 eIDAS). This certificate must be issued by a trust service provider 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 level of electronic signature that has a special legal status in EU Member States and is legally recognised as equivalent to a written signature (Article 25.2 of eIDAS). With the eIDAS Regulation on electronic identification and trust services, the European legislator introduced a uniform legal basis for electronic signatures (Regulation (EU) No 910/2014 of 23 July 2014). The Regulation regulates different types of signatures and their technical requirements. It applies to all EU Member States and the EU Economic Area, which aims to increase trust in electronic transactions in the Single Market and promote the digital economy. In addition to these principles, the legal treatment of electronic signatures is determined by national law. An authentic electronic signature (AES) and a qualified electronic signature (QES) are both trusted signatures. According to eIDAS, an QES is legally equivalent to a handwritten signature.

But the regulation also states that electronic signatures cannot be declared inadmissible in court simply because they do not meet the standards of an EQ. For reasons of sustainability, paper is increasingly being phased out. Home office obligations and travel bans related to the coronavirus pandemic make handwritten signatures impractical. Electronic signatures are a simple alternative to conventional signatures and are becoming increasingly important in business and legal transactions. Unqualified electronic signatures benefit “only” 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 qualify for a qualified electronic signature. For simple electronic signatures and advanced electronic signatures, there are no special privileges regarding the burden of proof or the evaluation of proof. To ensure the reliability of unqualified electronic signatures, parties may use authentication methods and an audit log. The assimilation of QES to the written form also opens up a wide scope for smart contracts and the use of blockchain technology for procurement: for example, blockchain-based smart contracts are possible, which obtain QES from the contractual partner via an interface with a trusted service provider. In this way, smart contracts benefit from legal certainty and can also be applied to contracts with a written legal requirement. The same procedure can be applied to transactions via non-fungible tokens (NFTs). The following legal declarations/contracts also cannot be submitted by QES – in addition, a formal notarial process is required: Our experts at the French Oppenhoff office will be happy to advise you on all legal and tax matters relating to your business in Germany. Under German law, digital signatures are legally permitted and legal for business use.

There are a few exceptions, which we will explain in more detail below. It remains to be seen whether tolerance and diffusion of electronic signatures in legal transactions will eventually reach a wide range of consumers. At least in the modern business world, the qualified electronic signature is already a solid substitute and largely equivalent to the handwritten signature. However, by way of derogation from the above-mentioned principle of freedom of contract, German law in certain cases requires the written form of a legally valid contract/declaration. In this case, the parties may only replace the handwritten form with QES, unless otherwise provided by law. Germany is classified as a civil law system, but in reality its legal model is a mixture of civil law and common law systems. Civil law systems are derived from Roman law, while common law systems originate from the courts of England. However, for legal transactions that legally require notarial certification (§ 128 BGB), no type of electronic signature is sufficient. This applies, for example, to real estate purchase agreements (§ 311b BGB). In general, the use of electronic signatures is not widespread in Germany, but it is increasing. Certificate-based digital signatures are not widely used in legal transactions due to high costs and technical effort, but are increasingly used in business.

The question of whether and in what cases an electronic signature produces legal effects is controversial in the commentary on labour law in some important areas; there are no decisions of the Federal Labour Court, nor decisions of the higher labour courts. Disclaimer: The information on this page is intended to help businesses understand the legal framework for electronic signatures. However, Adobe cannot provide legal advice. You should consult a lawyer for your specific legal issues. Laws and regulations change frequently, and this information may not be current or accurate. To the fullest extent permitted by law, Adobe provides such material “as is”.