eSignature Legality
in Luxembourg
In Luxembourg, both Law on Electronic Commerce of August 14, 2000 (E-Commerce Law), and the Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions (eIDAS Regulation) recognise electronic signatures.
The EU Directive 2000/31/CE on electronic commerce was transposed into Luxembourg law by the E-Commerce Act, a law that was passed on August 14, 2000. It serves as the basis for the Luxembourg E-commerce framework and lays out the fundamental requirements for the use of electronic signatures, the activities of providers of electronic signature solutions, and the supervision of such providers.
Since using electronic signatures and certificate-based digital signatures fast-tracks and makes contracting procedures easier in the given times, they have become more prevalent in its usage in Luxembourg. The legislations that govern electronic signatures in Luxembourg, in addition to the eIDAS Regulation, are as follows:
- The Luxembourg Law of 14 August 2000 on electronic commerce (E-Commerce Law) which transposed the EU Directive 2000/31/CE on e-commerce into Luxembourg law.
- The Law of 17 July 2020 which amended the E-Commerce Law, conforming to the eIDAS Regulation.
- The Luxembourg Civil Code Article 1322-1, which was introduced by the E-Commerce Law.
- Article 16 of the Luxembourg Code of Commerce which states that a document may not be rejected by the court solely because it is in electronic form.
Requirements for a valid electronic signature:
In Luxembourg, an electronic signature that satisfies the following conditions is considered to be valid:
- A set of data that is inextricably linked to the deed, guarantees its integrity, authenticates the identity of the person who appends it, and confirms that person's agreement with the deed's content; or
- Is a qualified electronic signature that is acceptable (QES).
Types of electronic signature in Luxembourg
The Regulation (EU) No. 910/2014 on electronic Identification and Trust Services for electronic transactions in the internal market (the Regulation) outlines the following three types of electronic signatures in Luxembourg:
- Simple Electronic Signature (SES): Simple "electronic signatures" are defined as data in electronic form that is used to sign documents and is either attached or logically associated with other data in electronic form which is used by the signatory to sign the document.
- Advanced Electronic Signature (AES): Advanced electronic signatures is a type of electronic signature which require-
- a unique link to the signatory;
- capability of identifying said signatory;
- creation via means that is solely under the signatory's control; and
- encryption to prevent tampering or alteration;
- 3.Qualified Electronic Signature (QES): Qualified electronic signature is a specific digital signature implementation that has met certain government specifications, including using a secure signature creation device, and is certified as 'qualified' by either that government or a government contracted third party.
A contract signed with a QES is regarded as being equivalent to a contract executed with a handwritten signature in Luxembourg due to the coexistence of the eIDAS Regulation and the provisions of the E-Commerce Law. A QES, therefore, has a presumption of validity and qualifies as an original signature. Advanced electronic signatures (AES) have a lower burden of proof than simple electronic signatures (SES), although both types of contracts may need further proof if they are challenged to demonstrate that they satisfy the requirements of Article 1322-1 of the Civil Code for integrity and validity.
It is pertinent to note that, under the laws of Luxembourg for electronic signatures, the use of a specific type of electronic signature for a particular process is not explicitly required. A QES may, however, be required to be used in certain specific use cases. Additionally, a QES is the only type of electronic signature that satisfies the legal requirements for some specific type of documents as required by law.
Documents that can be signed electronically
Any type of electronic signature that complies with the requirements of eIDAS may be used in the following types of transactions under the Luxembourg law:
- HR documents
- Corporate Resolutions (provided that the use of electronic signature is not restricted in the constitutional documents of the company)
- Consumer Agreements
- Non-disclosure Agreements
- Licensing and intangible property transfer agreements
- Healthcare and Life Sciences
- Procurement
- Lending
- Insurance
- Education
- Technology sector
Documents that require traditional signature
- Notarial deeds;
- Contracts that create or transfer rights in real estate (except for rental rights);
- Contracts requiring by law the involvement of courts, public authorities or professions exercising public authority;
- Collateral agreements and guarantees provided by persons acting for purposes that are not part of their professional or commercial activity;
- Contracts governed by family law or by the law of succession.
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.
