Are e-signatures legal, admissible, and enforceable in Belgium?
- EU Regulation No 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (the “eIDAS Regulation”) which came into force for most of its provisions on 1 July 2016, is directly applicable in Belgium, and contains provisions regarding electronic signatures, the coordination of national electronic identification systems, and trust service providers;
- the Act of 21 July 2016 inserting a Title 2 into Book XII, ”Electronic Economy Law”, of the Code of Economic Law, and definitions specific to Title 2 of Book XII and the implementing provisions of the Act particular to Title 2 of Book XII into Books I, XV, and XVII of the Economic Law Code (the ”Act of 21 July 2016" - French version / Act of 21 July 2016 – Dutch version) (this Act supplements the eIDAS Regulation);
- the Act of 20 October 2000 introducing the use of telecommunications means and electronic signature in the judicial and extrajudicial procedure (the ”Act of 20 October 2000" – French version / Act of 20 October 2000 – Dutch version (this act implemented the EU Directive 1999/93/EC of 13 November 1999 on electronic signatures);
- The new Book VIII of the Belgian Civil Code of 13 April 2019 on the rules of evidence (Book VIII of the New Civil Code – French version / Book VIII of the New Civil Code – Dutch version).
Types of Electronic Signatures:
Article 8.1, 3°, of the Belgian Civil Code recognizes as signatures from a legal standpoint three types of electronic signatures (as identified in the EU 910/2014 eIDAS Regulation):
- "Simple" electronic signature (SES): data in electronic form which is attached to or logically associated with other electronic data and which is used by the signatory to sign (e.g., a scan of a handwritten signature, a signature based on any electronic certificate, a mere image of a signature, etc.);
- "Advanced" electronic signature (AES): an electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using electronic signature creation data (i.e., unique data which is used by the signatory to create an electronic signature) that the signatory can, with a high degree of confidence, use under his sole control; (d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable (e.g., a signature based on an electronic certificate or other data that are personal to – and/or controlled by – the signatory); and
- "Qualified" electronic signature (QES): as a subcategory of AES, an advanced electronic signature that is created by a qualified electronic signature creation device and which is based on a qualified certificate for electronic signatures (e.g., a signature based on a qualified electronic certificate and using a qualified electronic signature creation device, such as the signatures generated with an eID signature certificate contained on a Belgian eID card and used with a connected card reader).
Under Belgian law, each of the above digital signatures will constitute proper legal evidence between the signing parties for private deeds, meaning that even the use of SESs and AESs will provide a legally reliable basis for valid proof of contracting. A contract signed by means of one of the above electronic signatures will thus be regarded as validly signed, except where a particular type of electronic signature or other formalities are imposed by law.
For instance, contracts that must be notarized or entered into under supervision of a public servant can only be signed with a QES (Art. 8.15-8.17 of the Belgian Civil Code). The same applies to employment agreements when entered in writing.
Note that in practice, it will be easier to dispute the authenticity of or repudiate a SES than it will be for an AES or a QES, or an AES than it will be for a QES.
In case an electronic signature would not qualify as an SES, AES, or QES per the eIDAS Regulation, they will not be regarded as signatures in the legal sense under the new Civil Code. They may, however, still have limited evidentiary value as the deeds bearing them could be recognized as a ”beginning of written proof” (commencement de preuve par écrit), which should then be supplemented by other evidence (such as an associated payment). They will also be recognized as “signatures” in the legal sense, meaning that they will constitute proper evidence between the signing parties for private deeds, such as contracts.
We further note that in accordance with Article 25.2 of the eIDAS Regulation and Belgian law, only the QES shall automatically have the equivalent legal effect of a handwritten signature (without distinguishing between private and authenticated deeds). In addition, according to Article XII.25 of the Belgian Code of Economic Law, a ”qualified electronic seal” (per the eIDAS Regulation) used in the context of legal deeds executed exclusively by or between natural or legal persons domiciled or established in Belgium shall also be equivalent to the handwritten signature of the natural person who represents the legal entity that created the seal (NB: in such context, a qualified electronic seal should then only be used by a Belgian resident to sign on behalf of a Belgian legal entity).
Lastly, where the retention of documents is imposed by law or regulation, as is the case pursuant to e.g., tax, social security, and employment laws, electronically signed documents, and electronic documents in general must be archived using an internal or external qualified electronic archiving service provider.
Are there certain documents that cannot be e-signed in Belgium?
Pursuant to Article XII.16 of the Belgian Economic Law Code, Belgian judges could consider that the following four types of contracts cannot be signed electronically and require a handwritten signature in circumstances where there would be practical obstacles to the fulfilment of a formal legal or regulatory requirement in the process of entering into the contract:
- contracts that create or transfer rights in real estate, except for rental rights;
- contracts requiring by law the involvement of the courts, public authorities, or professions exercising a public authority (e.g., a notary);
- contracts of suretyship and on collateral securities furnished by persons acting for purposes outside their trade, business, or profession; and
- contracts governed by family law or by the law of succession (e.g., matrimonial contracts, deeds of adoption, (pre-) divorce agreements, etc.).
It is worth noting that, in light of the aforementioned updated rules of evidence of the Belgian Civil Code, the possibility for courts to discard electronic signatures post factum as per Article XII.16 of the Belgian Economic Law Code seems no longer relevant and should very seldom apply. In practice and absent clear case law, caution should be exercised with respect to contracts of suretyship and collateral securities subscribed by non-professionals.
In addition, we note that Article XII.25 of the Belgian Economic Law Code expressly specifies that “in the absence of legal provisions to the contrary, no one can be compelled to subscribe any deed by electronic means”.
Does local regulation govern the use of digital IDs and/or digital certificates for e-signatures in Belgium?
Belgian citizens 12 years old and older may hold a valid e-ID card, delivered by local authorities, which he/she may use to prove (electronically) his/her identity before public and non-public entities. Such electronic proof of identity is conducted through transmission of data from the electronic storage and processing medium of the national ID.
However, the e-certificate required to generate QES directly embedded in the Belgian e-ID card will only be activated when the card holder turns 18.
In practice, the e-ID card contains a contact chip which, by means of RSA Algorithm (asymmetric key algorithm), enables the holder to generate QES. Only the chip knows the private key of its holder and can therefore read it. A KPI (Public Key Infrastructure) has been put in place to manage the certificates that associate the RSA public key with the cardholder's identity. In addition, the holder must always encode his/her personal PIN code before the chip generates the electronic signature.
Other certificates for e-signatures
There are provisions under Belgian national law related to certificates for e-signatures.
The eIDAS Regulation, which is directly applicable in Belgium, provides for the general legal framework for qualified trust services. Among other things, the eIDAS Regulation governs the application procedure for trust service providers to obtain the status of a qualified trust service provider (Art. 22) and the requirements applicable to the same (Art. 24).
According to the eIDAS Regulation, qualified electronic signatures can only be created using “qualified certificates for electronic signatures” which again can only be issued by qualified trust service providers (Sec. 3 no. 12, 15, 17 eIDAS Regulation).
On the Belgian national level, the above-mentioned Act of 21 July 2016 implements the eIDAS Regulation and supplements it by enshrining provisions aimed at creating a comprehensive and coherent legal framework for electronic archiving.
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in Belgium?
The Federal Public Service of Economy, SME, Middle Classes, and Energy (Quality and Safety Department) is the designated supervisory body as required by Art. 17 eIDAS Regulation (except for matters related to security breach reporting obligations).
In this capacity, Federal Public Service of Economy, SME, Middle Classes, and Energy is responsible for, among other things, the supervision of qualified trust service providers, including the maintenance of "trusted lists" of qualified trust service providers (see Art. 22 eIDAS Regulation) and handling notifications of the intention to obtain the status as a qualified trust service provider.
*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2020