Droit des sociétés | Covid-19 et vie des affaires : focus sur la signature électronique

With the limitation of physical meetings imposed by the fight against the propagation of the virus that causes COVID-19, electronic signatures are turning out to be an essential tool for the remote signing of contracts as well as any other official business document.

The legal value of the electronic signature was recognised 20 years ago by the French legislator who defined it as “the use of a reliable procedure of identification guaranteeing its link with the official document it is related to. The procedure is presumed reliable until proven otherwise when the electronic signature is created, the identity of the signatory is ensured, and the integrity of the official document is guaranteed according to the conditions established by a decree of the Council of State“. (article 1367 of the Civil Code, previously article 1316-4 of the Civil Code).

European regulation n° 910/2014 of 23 July 2014, known as the eIDAS regulation, then identified several types of electronic signature, depending on their level of reliability.

1. The simple electronic signature

This may be the simple digitisation of a handwritten signature, a box to be ticked, or any other procedure having requirements that are inferior to those provided for by the “advanced” signature or “qualified” signature as mentioned here below.

This signature does not provide any guarantee as to the identity of the signatory. It is, therefore, not very reliable, and if produced before a court of law would need to be corroborated by other elements of proof in order to be considered as having probative value.

2. The advanced electronic seal

This type of signature must satisfy the following requirements:

– be unequivocally linked to the signatory;
– allow for the signatory’s identification;
– have been created using electronic signature creation data that the signatory can, with a high level of trust, use under his exclusive control; and
– be linked to data associated with this signature in such a way that any ulterior modification of the data can be detected.

The “advanced” signature implies the endorsement by a certification organism of the signatory’s identity and the integrity of the document signed.

This is the type of signature that is most often used in business as it presents a certain level of securitisation whilst its implementation is not overly restrictive.

Thus, decree n° 2019-1118 of 31 October 2019, which, as of 4 November 2019, authorised all businesses and entrepreneurs to establish or certify by electronic signature minutes of decisions by associates and certain social bodies as well as the electronic records on which they are kept, requires a minima the used of an “advanced” electronic signature.

3. The electronic signature with a qualified certificate

This type of signature provides a higher level of securitisation compared to the advanced signature and must respect the requirements contained in Annex I of the eIDAS regulation, i.e. in particular:

– the digital certificate process requires that the signatory’s identity be verified face to face between the future certificate holder and the trust service;

– the signature is created using a highly secure device, a QSCD (Qualified Signature Creation Device). The signatory’s qualified electronic signature is contained within this device.

The “qualified” signature is differentiated as it is the only one to present the advantage of reversing the burden of proof and it, therefore, falls to the person contesting its validity to prove that it is incorrect.

However, this type of signature is rarely used because of the complexity inherent to its process.

In conclusion, the choice of the type of signature depends on the type of document to be signed, the risk of dispute of the document signed, the business or financial stakes, and the ease of implementation of the process for signatories.

For official business documents that require a certain level of security but also speed and flexibility, the use of an advanced electronic signature is preferred.

Furthermore, it can be useful for any company using regular signatories to establish qualified signatures upstream in order to avoid signature verifications for each official document.

In the case where a “simple” electronic signature is used, it is recommended that the official document should be ratified a posteriori with a handwritten signature.

For any questions relative to the most suitable choice of electronic signature for your requirements, please do not hesitate to contact our Corporate team.

Photo by Kelly Sikkema on Unsplash
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