Electronic signatures to ensure business continuity
The travel restrictions and containment measures taken by the government of the Grand Duchy of Luxembourg to fight the coronavirus have forced many people to work from home and to adjust their business practices accordingly.
A practical issue arising in the current situation is how to best organise signature and delivery of original documents and, as a result, focus has turned to the validity and recognition of electronic signatures in Luxembourg.
We will provide a high level and practical overview of the recognition of different forms of electronic signatures in Luxembourg, with a particular focus on “qualified” electronic signatures, and of the practices implemented by Luxembourg professionals to adapt to the restrictive measures in place to tackle the spread of the coronavirus.
This overview outlines the general position in relation to documents governed by the laws of Luxembourg. In a cross-border context, and in particular in case of a nexus with another jurisdiction, the position should be ascertained with local counsel.
Three types of electronic signatures
A signature identifies the person who signs an act under private seal and expresses said person’s adherence to the content of the act and may be manuscript or electronic in accordance with the terms of the Luxembourg law of 14 August 2000 on electronic commerce, as amended (the e-Commerce Law). The e-Commerce Law further defines the electronic signature as a cryptographic process which consists in a set of data, inseparably linked to the act, which guarantees its integrity.1
Regulation (EU) 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) recognises three categories of electronic signatures (classified in decreasing order of probative value):
- “qualified” electronic signature – electronic signature created by a qualified electronic creation device and based on a qualified certificate (which allows the identification of the signatory) issued by an qualified/accredited trust services provider (prestataires de service de confiance) (TSP).
- “advanced” electronic signature – advanced electronic signatures are (i) uniquely linked to the signatory, (ii) capable of identifying the signatory, (iii) created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and (iv) linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
- “simple” electronic signature (e.g. the electronic (scanned) copy of a handwritten signature placed on a document).
“Qualified” electronic signatures - full legal effect equivalent to handwritten signatures
“Qualified” electronic signatures are automatically deemed to have the same legal and probative value as handwritten signatures. As such, just as handwritten signatures, “qualified” electronic signatures could only be contested following the formal repudiation by the signatory, following which a court-ordered verification can be carried out in accordance with the Luxembourg Civil Code.
With respect to the “advanced” and “simple” electronic signatures, the eIDAS Regulation provides for a principle of non-discrimination whereby an electronic signature cannot be denied legal effect solely on the basis that it is in electronic format and that it does not satisfy the requirements of a “qualified” electronic signature. In practice, this means that the person who contests the validity of an electronic signature (which is not a “qualified” electronic signature) has the burden of proof and must evidence that the electronic signature does not provide for sufficient guarantees in terms of authenticity and integrity. An “advanced” eletronic signature does not benefit from the presumption of equivalence to handwritten signature and is not binding upon a Luxembourg court, which has a wider margin of discretion whether to accept such signature as evidence, based on the facts and circumstance of the case. When a “simple” electronic signature has been used, the hardcopy of the documents signed by hand and subsequently sent by electronic means could be produced in court as evidence, if required.
Luxembourg TSPs and recognition of “qualified” certificates issued by EU Member States and third party countries TSPs
In accordance with the Commission Decision (EU) 2015/1505 of 8 September 2015, each Member State must draw up a “trusted list” of qualified TSPs. The Luxembourg Institute for Standardisation, Accreditation, Safety and Quality of Products and Services (ILNAS) is in charge of managing this “trusted list” in Luxembourg. This list currently includes only two TSPs as qualified trust service providers: LuxTrust S.A. and BE INVEST International S.A..
The eIDAS Regulation requires that “qualified” electronic signatures based on a qualified certificate issued in one EU Member State shall be recognised as a “qualified” electronic signature in all other EU Member States. Therefore, if an electronic signature is based on a qualified certificate issued by a TSP that has been recognised as “qualified” by a EU Member State (i.e. by a qualified TSP listed on the “trusted list” of that EU Member State), such signature will be automatically recognised as having full legal effect equivalent to a handwritten signature.
The list of TSPs accredited by EU Member States can be consulted here.
The E-commerce Law and the eIDAS Regulation both provide for recognition, subject to certain conditions, of “qualified” certificates issued by third party TSPs. However, in practice, there is no clear recognition of any third country TSP yet – neither at a Luxembourg nor at a European level.
A pragmatic approach
Most professionals in Luxembourg have aligned their practice to the eIDAS Regulation and recognise the validity of “qualified” electronic signatures, such as signatures via DocuSign France, a TSP recognised as a being “qualified” by France.
The possibility to use electronic signatures should however always be confirmed in advance as legal restrictions apply to certain operations, such as contracts requiring by law a formal notarial process, a legalisation process or requiring signature in the presence of a public officer.
We can assist you in ascertaining the compatibility with electronic signature and provide legal advice with respect to related issues.
Professionals have taken exceptional measures to guarantee the continuity of business in Luxembourg. We maintain close contact with all the professionals in Luxembourg, in order to adapt our practice accordingly and ensure the continuity of our and your business.
1 Art. 6 of the e-Commerce Law / article 1322-1 of the Luxembourg Civil Code: “La signature nécessaire à la perfection d’un acte sous seing privé identifie celui qui l’appose et manifeste son adhésion au contenu de l’acte.
Elle peut être manuscrite ou électronique.
La signature électronique consiste en un ensemble de données, liées de façon indissociable à l’acte, qui en garantit l’intégrité et satisfait aux conditions posées à l’alinéa premier du présent article.”
Frédéric FranckxPartner Attorney at law / Avocat à la Cour
Frédéric Franckx, partner, heads the Corporate / M&A Practice Group in our Luxembourg office. Frédéric focuses mainly on private equity and mergers and acquisitions. He is an active member of our Region Teams US, Canada and Latin America.T: +352 466 230 301 M: +352 691 919 614 E: [email protected]
Madeleine Marques, associate, is a member of the Corporate practice group in our Luxembourg office and a member of the Restructuring Team. She focuses on private equity transactions, mergers and acquisitions and distressed debt restructurings.T: +352 466 230 211 E: [email protected]