Are e-signatures legal, admissible, and enforceable in France?
(1) Applicable law:
- Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS).
- Articles 1109, 1172, 1173, 1366, and 1367 of the French Civil Code:
- Pursuant to Articles 1109, 1172, and 1173 of the French Civil Code (FCC), contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically, or in a physical paper document.
- Article 1366 FCC confirms that contracts cannot be denied enforceability, merely because they are concluded electronically.
- Article 1367 FCC refers to conditions of validity of signatures as being the following: “the signature necessary for the perfection of a legal deed shall identify its author. It expresses its consent to the obligations arising from this act. When affixed by a public officer, it confers authenticity to the act”. Paragraph 2 of the aforementioned article directly refers to the possibility of choosing an electronic signature, which consists of the use of a reliable identification process guaranteeing its link with the act to which it is attached, only.
- Decree N° 2017-1416 of September 28, 2017:
- The Decree specifies the requirements of the secured electronic signature, which cover the hardware and software used to create the secured electronic signature and the content and the quality of the electronic certifications delivered by the certification service providers. These conditions should be met to ensure presumption of reliability.
Types of electronic signatures:
The eIDAS recognizes three types of electronic signature:
1) Simple e-signature (SES):
- SES can be any form of electronic message associated with a natural person (this can include typed signatures, e-mail blocks, etc.)
2) Advanced e-signature (AES):
- AES is an electronic signature uniquely associated with an individual and linked to data so that any subsequent change in the data is readily identifiable.
3) Qualified e-signature (QES).
- QES is generated by a qualified electronic signature creation device (backed by a certificate issued by a qualified trust service provider), and has the same validity as a handwritten signature.
While QES has the status of handwritten signatures, there are no documents that require use of a Qualified Electronic Signatures in France.
(2) Case law examples:
There are few case laws specifically concerning electronic signatures in France. Below are some notable examples:
- Orléans Court of Appeal, 2 May 2019 (no 18/013501)
- The Orléans Court of Appeal held that a possible irregularity in the electronic signature had no impact on a party's will to enter into a contract, as it was sufficiently characterized by the actual payment of several instalments of the price.
- Nîmes Court of Appeal, 14 March 2019 (no. 17/03531)
- The case was about an electronic signature used to conclude two financial leasing contracts (no information was provided regarding the electronic signature level). The lessor had notably added the leasing contracts, specifying that they had been subscribed to "online" and that the signature was an "electronic signature that makes it possible to identify the manager" of the tenant company.
- Under the former Article 1316-4, now Article 1367 FCC, the judges considered that the reliability of the process was "presumed until proven otherwise".
- However, under Article 1367 of the FCC and Decree No. 2017-1416 of 28 September 2017 to which it refers, only QES within the meaning of the eIDAS is recognised as presumed reliable, which was not further developed in the reasoning of the decision. Therefore such case law seems currently rather favourable to recognising the probative value of any electronic signatures. That said, please note that the Nîmes Court of Appeal is just one of the several Court of Appeals in France, and such ruling may not be followed by other courts.
- Nîmes First Instance Court (in France, similar to a District Court), judgment of 18 September 2018
- In banking matters, the Court held that the summary of the file of evidence of the transaction provided by the electronic certification service provider, attesting of the signature of the contract, makes it possible to authenticate the electronic signature appearing in the contract
Are there certain documents that cannot be e-signed in France?
French legislation has recently evolved, including since the COVID-19 crisis, to allow certain documents to be signed electronically, while this was not previously possible (e.g., divorce, notarial deeds).
To date, it is still generally considered that promissory notes (which are commercial instruments) cannot be executed electronically in France.
Does local regulation govern the use of digital IDs and/or certificates for e-signatures in France?
- There is no French regulation governing the use of digital IDs, since the French Government has not launched the deployment of any official digital IDs in France yet.
- The creation of a Digital ID for all French citizens is a project expected to be rollout by the French Government in the next summer 2021.
Certificates for e-signature
- eIDAS: According to eIDAS, which is directly applicable in France, QES can only be created using “qualified certificates for electronic signatures”, which can only be issued by qualified trust service providers (Sec. 3 no. 12, 15, 17 eIDAS). Among other things, eIDAS governs the application procedure for trust service providers to obtain the status of qualified trust service providers (Art. 22) and the requirements applicable to them (Art. 24).
- French regulation: There is no specific regulation as such. However in France, certificates are issued by the National Agency for the Security of Information Systems (ANSSI). The ANSSI has published a reference framework on "Services for issuing qualified certificates for electronic signatures, electronic stamps and website authentication" (Référentiel sur les services de délivrance de certificats qualifiés de signature électronique, de cachet électronique et d’authentification de site internet) detailing requirements for issuing qualified certificates.
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in France?
- Accreditation for trust service providers in France is provided by the ANSSI, the French certification body, which maintains a list of trust services in France here.
In this respect, it is responsible for defining the technical procedures for complying with the requirements of the regulation and the qualification of trust service providers established on French territory.
- The qualification process for trust service providers is available here.
*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