Are e-signatures legal, admissible, and enforceable in Switzerland?
- Federal Law on Certification Services in the Area of Electronic Signature (ZertES, SR 943.03).
Types of electronic signatures:
Swiss law recognizes four types of electronic signature: (i) simple e-signature (SES), (ii) advanced e-signature (AES), (iii) regulated e-signature (RES), and (iv) qualified e-signature (QES). SES can be any form of electronic message associated with a natural person (this can include typed signatures, e-mail blocks, etc.). 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. QES is generated by a qualified electronic signature creation device (backed by a certificate issued by a qualified trust service provider), and, if provided with a qualified electronic timestamp, has the same validity as a handwritten signature. RES is similar to QES, having to comply with less stringent technical requirements than QES. The regulated certificates associated with RES may also support electronic signatures for legal entities. RES does not have the same validity as a handwritten signature.
Swiss statutory law provides that a written form requirement established by statutory law can be fulfilled by the "electronic form", unless stated otherwise (Art. 14 para. 2bis of the Swiss Code of Obligations (CO), see question 2 below for those instruments that cannot replace the written form of signatures with the electronic form).
Where the electronic form of signature is to replace a written form that is required by statutory law, the issuer of the declaration must add his/her name to it and provide the electronic document with a qualified electronic signature (as defined in Art. 2(e) of the ZertES) with a qualified electronic time stamp. In the case of a contract, each of the parties must electronically sign, using a qualified electronic signature.
- According to Art. 16 para. 2 in conjunction with Art. 14 para. 2bis of the CO, a written form requirement agreed upon by parties to a legal transaction may be replaced by the electronic form.
In the above case (i.e., in the absence of a statutory form requirement), where an electronic form requirement has been contractually agreed upon by parties to a legal transaction, an electronic signature other than a qualified electronic signature (such as SES or AES) also suffices, unless a different intention of the parties is demonstrated.
- Preparatory pleadings, written submissions, and other documents in legal proceedings can, in general, be submitted to the courts as electronic documents. In this case, the document must be electronically signed using a qualified electronic signature of the responsible person (see Art. 130 para. 2 of the Civil Procedure Code, Zivilprozessordnung, ZPO)
Are there certain documents that cannot be e-signed in Switzerland?
Declarations and contracts that require notarization cannot be e-signed. A notarization is required in, among others, the following cases:
- Contracts by which one party agrees to transfer or acquire ownership of a plot of land;
- Transfer of the ownership of a plot of land, the encumbrance of a plot of land with a right, and the transfer or encumbrance of such a right; and
- Certain declarations and contracts under family law and under laws of succession.
Does local regulation govern the use of digital IDs and/or certificates for e-signatures in Switzerland?
In 2019, the Swiss Parliament approved a new Federal law, laying the legal basis for a digital ID (E-ID). The E-ID would not be an equivalent to an electronic identification document or passport. Rather, the E-ID would facilitate the identification of individuals on private websites for online transactions as well as to access electronic services provided by public authorities (e-government). The E-ID would be issued by private providers, supervised by the government and based on statutory requirements. Because of private parties assuming a function currently reserved to the state, Swiss citizens introduced a referendum against the new law. A public vote must therefore be held, presumably in Spring 2021.
Certificates for e-signatures
There are provisions in Swiss Federal law related to certificates for e-signatures.
The ZertES provides for the general legal framework for recognized trust services. Among other things, the ZertES governs the application procedure for trust service providers to obtain the status of a recognized trust service provider and the requirements applicable to the same (Art. 3).
According to the ZertES, qualified electronic signatures can only be created using “qualified certificates for electronic signatures”, which again can only be issued by recognized trust service providers (Art. 9 in conjunction with Art. 13 of the ZertES).
The ZertES also governs responsibilities (see below at question 4) and civil liability of the trust service providers.
Does local law provide certification bodies / trust services that users of e-signatures should be aware of in Switzerland?
The trust service providers can be recognized by bodies accredited by the Swiss Accreditation Service (SAS). Today, KPMG AG is the only accredited body recognizing trust service providers in Switzerland (Art. 16 of the ZertES).
Further information can be found on the website of the Federal Office of Communication (in German; list of recognized trust service providers available in English).
*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