Germany

Overview

What do I need to know about eSignature legislation in Germany?

As a member of the European Union, Germany complies with the Electronic Identification, Authentication, and Trust Services (eIDAS) regulation which defines the legal structure for electronic identification, signatures, seals, and documents.

Although eIDAS is enforced throughout the EU, many countries still implement their own local regulations to govern eSignatures. Germany has adopted the following local laws:

• The Vertrauensdienstegesetz (VDG), or the German Trust Services Act, which implements the eIDAS regulation and facilitates the use of electronic trust services.  
• The Bürgerliches Gesetzbuch (BGB), or the German Civil Code, which determines when an electronic signature can be used in place of a wet signature. 

The eIDAS regulation defines three types of electronic signatures:

Simple or Standard Electronic Signature (SES)
This type of signature is “data in electronic form which is attached or logically associated with other data in electronic form, and which is used by a signatory to sign.” It is an electronic form of a signature that a signer applies to a document as evidence of their intent to sign.

Advanced Electronic Signature (AES)
An Advanced Electronic Signature is a Standard Electronic Signature that meets additional requirements:

• It is uniquely linked to the signer. 
• It is capable of identifying the signer. 
• It is produced using electronic signature creation data that the signatory can, with a high level of confidence, use under their sole control. 
• It is linked to the signed data in such a way that any subsequent change in the data is detectable. 

Qualified Electronic Signature (QES)
A Qualified Electronic Signature offers the highest level of security, and unlike the other signatures, the burden of proof lies with the party that disputes the signature(s), not with the initiator. This type of signature binds the signer’s identity to its signature through a personal, qualified certificate. A qualified certificate is issued by a trust service provider (TSP) that is on the EU Trusted List (ETL). Each EU member state can add TSPs to the ETL by certifying that they meet the strict regulations outlined in the eIDAS regulation.

In Germany, a Qualified Electronic Signature is considered the equivalent to a handwritten signature, as long as all necessary laws and regulations are fulfilled.

The following documents can generally be signed electronically:

• Finance: Consent forms, broker contracts, loan applications, financial statements, tax forms, account openings, financial statements, transaction disputes, and underwriting documents

• Human Resources: Employment contracts, onboarding paperwork, non-disclosure agreements, company policies, offer letters, and severance agreements

• Sales: Order confirmations, invoices, sales agreements, quotes, proposals, service agreements, partner contracts, and terms and conditions

• Real Estate: Purchase contracts, contract addendums, agency agreements, appraisals, disclosures, rental and leasing agreements, mortgage documents, and titles and deeds

• Legal: Powers of attorney agreements, compliance documents, confidentiality agreements, client and stakeholder reports, engagement letters, and practice continuation agreements

Under German law, some transactions require a “written form,” or a wet signature. Here are some examples where this method must be used:

• Wills and codicils 
• Trusts created by wills 
• Deeds 
• Court documents 
• Divorce, adoption, and family law documents 
• Notarized documents 
• Termination of employment 

1. Electronic Identification, Authentication and Trust Services (eIDAS): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.257.01.0073.01.ENG

DISCLAIMER: This information provides general knowledge on the legal framework for electronic signatures. It should not be taken as a substitute for qualified legal counsel. As regulations constantly evolve, Nitro cannot guarantee that this information is up to date. For further advice, seek out the expertise of a qualified lawyer.