As a result of the Corona pandemic that started early in 2020, we have all begun doing even more work digitally. Physical meetings have not been replaced by emails, but by video conferences. Signatures in ink have largely been replaced by digital signatures.
But what exactly is the validity of electronic signatures?
The basics: 3 sorts of electronic signatures
1. The basics
In Belgium, e-signatures are governed by the Act of 21 July 2016, “eIDAS and electronic archiving” (hereafter the “Act”), which is based on the European eIDAS Regulation. FPS Economy is responsible for the qualification and supervision of Belgian-based trust service providers.
The Act makes a distinction between three sorts of electronic signatures, each of which we discuss briefly below.
Please note that an electronic signature is valid only for natural persons. For legal persons, an electronic seal has been introduced, which works according to the same principles.
The eIDAS Regulation clarifies that an electronic signature (irrespective of the technology used and the level) may not be refused as evidence in legal proceedings merely because it is electronic or nonqualified. Note, however, that electronic signatures must be “reliable” to be used in proceedings. How “reliable” an e-signature is can be proved by any legal means. The more sophisticated an e-signature is, the easier it is in general to prove its reliability. As we shall see below, only qualified electronic signatures are equated with written, physical signatures. Simple and advanced signatures are tested by the court for their validity in the event of dispute.
2. Simple electronic signatures
A simple electronic signature is the least sophisticated, least secure form of electronic signature and is therefore relatively easy to forge. Examples are a scan of a written signature, a PDF signature or a signature under an email.
3. Advanced electronic signatures
An advanced electronic signature must:
- be uniquely linked to the signer;
- make it possible to identify the signer;
- be created using data for the creation of electronic signatures, which the signer can use under their sole control, with a high level of confidence (for example, by means of a password or pin code); and
- be linked to the data signed in such a way that any subsequent change to the data can be detected.
Examples of this are programmes such as DocuSign, Adobe Sign, HelloSign, and the token generated by your bank card when signing bank transactions, etc.
4. Qualified electronic signatures
This is the most sophisticated type of e-signature and is equated to a handwritten signature. This signature is deemed to be valid unless the contrary is proved in denial of signature proceedings.
“Qualified” means an advanced signature created by a qualified signature creation device and based on a qualified electronic signature certificate. The technology and processes for these signatures are subject to very strict conditions.
In Belgium, the best-known forms of these are the Itsme and e-ID applications.
At the French level DocuSign France is accepted as a qualified service provider.
1. General meeting and boards of directors
Minutes (not attendance lists) of general meetings or boards of directors usually have to be signed by a maximum of two directors plus any directors who so wish.
Handwritten or qualified signatures are preferrable, so as to exclude any discussion afterwards.
When filing documents (for example, merger proposals, minutes of an extraordinary general meeting for non-profits or limited companies, etc.) with the registry of the commercial court, we recommend always providing the hand-signed originals. After all, if the registry clerk refuses to accept an e-signature, a lot of valuable time will be lost.
If certain directors live or reside abroad, we recommend organising the signing and sending of originals, by courier service, in good time.
As a result of the corona measures, many notaries have deeds signed by means of proxies.
Our experience is that there is still no uniformity in the acceptance and application of electronic signatures by notaries. Certain notaries only accept original copies of powers of attorney and letters of renunciation with handwritten signatures. Other notaries are very flexible and accept scans of handwritten signatures (“simple electronic signatures”).
We therefore recommend always agreeing clearly in advance with the notary how the deed will be signed and whether originals are necessary, or whether scans are sufficient.
4. Annual accounts, auditors
The annual accounts, published by the NBB, do not have to have a signature and can be uploaded using e-ID.
That leaves the question of whether the copy for internal use can be signed with an e-signature by the authorised directors. A number of companies already do this, but with qualified signatures. We strongly recommend always doing this with qualified electronic signatures.
The information centre for Belgian auditors, ICCI, adopted a position on the legal validity of DocuSign signatures on 14 October 2020.
New legislation on evidence, which takes into account the digitalisation of our everyday lives, entered into force on 1 November 2020.
So, there is nothing stopping you from using a simple or advanced signature to sign an agreement. Whether you opt for this or for a handwritten or qualified signature will mainly depend on the financial interests involved in the agreement, or how well you know the other party or parties.
Creating a qualified signature yourself
You can create a qualified signature yourself with e-ID and the help of a couple of handy tools: