Electronic signatures are not widely used in Germany, although they are becoming more widespread. Due to the high price and technical work required, certificate-based digital signatures are not generally utilised in legal transactions; nonetheless, their use is growing in the business world.
In Germany, the following regulations govern the use of electronic signatures:
Certain contracts in Germany may be required to be executed in either text or writing form by legislation. The text form of a contract, according to the BGB, is a readable declaration made on a durable medium in which the person making the declaration is named. If the BGB requires written form, the document must also be signed by the issuer, who must use their name or their notarized and certified initials. The text form is insufficient where German law requires the written form.
Many provisions of the BGB require certain contracts to be in written form. Unless some other statute provides otherwise, the written form may be substituted by an electronic form, according to BGB Section 126. If an electronic form is to take the place of a written form as required by Section 126a, the electronic form must meet the following requirements:
Simple and advanced electronic signatures (AdES) cannot be used to conclude a contract when the written form is necessary, but they can be used to conclude a contract when the text form is required.
If no statutory form of e-signature is required, any sort of electronic signature will suffice to execute a contract if all parties have consented to use an electronic form and no other intention is apparent. When preferring an electronic signature, it should be keep in mind that a QES has a higher evidential value than a non-qualified electronic signature. If a non-QES is used, the holder of the signature is responsible for proving the integrity of the document’s content.
Due to the lack of regular usage of electronic signatures in Germany, judges are often unfamiliar with the regulations that govern them. However, civil cases are frequently filed online utilising the new infrastructure known as beA, in accordance with German law promoting electronic legal transactions with courts (“Gesetz zur Förderung des elektronischen Rechtsverkehrs mit den Gerichten”).

Use cases for electronic signature:

Unless German law expressly or implicitly prohibits the use of electronic signatures or requires the use of the “written form” (which necessitates the use of a qualified electronic signature), any non-qualified electronic signature may be used. Under German law, the following types of agreements are usually exempt from the “written form” requirement and hence can be signed electronically:

For transactions with public sector entities:

Contracts with the government (“public law contracts”) in Germany must be in writing. Further provisions on the use of electronic signatures with government bodies are included in the Vergabeverordnung, or German Public Procurement Regulation. One such provision empowers the government to compel the use of specified types of electronic signatures for expressions of interest, confirmations of interest, requests to participate, and tenders in certain circumstances.

Use cases that require traditional signatures:

Several regulations in Germany specifically prohibit the electronic signing of the following categories of documents:
The COVID-19 pandemic has radically changed our lifestyles and how one conducts business. Most non-essential companies have established completely remote work setups. This “new normal” has concentrated more attention on electronic means of transactions. The “new normal” in the age of Covid-19 proceeds to facilitate the use of eSignatures.

Comprehensive Conclusion

Non-qualified electronic signatures “only” benefit from the non-discrimination clause, which states that an electronic signature’s legal effect and admissibility in court should not be denied solely because it is in electronic form or does not meet the requirements of a qualified electronic signature. There are no specific privileges regarding the burden of proof or the evaluation of evidence for simple and advanced electronic signatures. Parties can use authentication mechanisms and an audit trail to further ensure the trustworthiness of any non-qualified electronic signature.

DISCLAIMER

Certinal is making available the information and materials in this article for informational purposes only and is meant to help companies understand eSignature’s application in a legal framework. Laws change rapidly and Certinal makes every reasonable effort to keep the content of this article current, hence Certinal makes no claims or representations that the information contained in this article is true, accurate, correct, or current. The law is different from jurisdiction to jurisdiction, and even similar laws may be interpreted differently in different courts or in different places. Since these factors differ according to individuals and businesses, Certinal is not liable for any consequence of any action taken by any third party relying on material/ information provided under this article. The contents hereof should not be construed as legal advice in any manner whatsoever. In cases you require any assistance; you must seek independent legal advice.
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