eSignature Legality Guide
eSignature Legality in Germany
Electronic signatures are legally valid in Germany, as established by the eIDAS Regulation No. 910/2014 and the national Trust Services Act (Vertrauensdienstegesetz - VDG), which supports the use of electronic trust services in the country.
E-Signature Legality Summary
As a member of the European Union (“EU”), Germany is subject to the EU Regulation No 910/2014 of the European Parliament and Council of 23 July 2014, known as the eIDAS Regulation, which governs electronic identification and trust services for electronic transactions across the EU. The eIDAS Regulation, which replaced Directive 1999/93/EC, directly applies in Germany and regulates the use of electronic and digital signatures throughout the EU, including Germany, particularly in Chapter 3 “Trust Services” and Section 4 “Electronic Signatures.”
To support the effective application of eIDAS, Germany enacted the Trust Services Act (Vertrauensdienstegesetz or VDG), which facilitates the use of electronic trust services in Germany. This law has been in effect since 29 July 2017.
The main German legal provisions regarding form requirements are found in the German Civil Code (BGB). The BGB specifies various form requirements, especially the “written form,” which is necessary for certain actions such as terminating a rental agreement, notifying an assignment of rights, or assigning rights related to a mortgage. The BGB recognizes several types of form, including (i) “written form,” (ii) “text form,” and (iii) “agreed form.” According to the BGB, the written form can generally be replaced by the electronic form unless otherwise specified by law.
Notable Changes in E-Signature Law Since 2020
None.
Types of Permitted Electronic Signature
The eIDAS Regulation distinguishes between three categories of electronic signatures: the basic “electronic signature,” the “advanced electronic signature” (AES), and the “qualified electronic signature” (QES).
A basic “electronic signature” refers to electronic data that is attached to or logically linked with other electronic data and is used by the signer to sign (Article 3.10 eIDAS).
An “advanced electronic signature” (AES) is an electronic signature that fulfills additional criteria to provide a higher level of security and trust.
A “qualified electronic signature” (QES) is an advanced electronic signature created using a qualified electronic signature creation device and based on a qualified digital certificate for electronic signatures (Article 3.12 eIDAS). The certificate must be issued by a trust service provider listed as qualified by an EU member state, and the signature creation device must also be certified by an EU member state. The QES is the only type of electronic signature that is legally equivalent to a handwritten signature in EU member states (Article 25.2 eIDAS).
German law does not provide a separate definition of electronic signature outside of the eIDAS framework.
Documents That May be Signed Electronically
Generally, contracts in Germany do not require a specific form to be valid. Unless German law specifically prohibits the use of electronic signatures or mandates the “written form” (which requires a qualified electronic signature), non-qualified electronic signatures are acceptable. The following types of agreements typically do not require the “written form” under German law:
- HR (except for employment terminations)
- Procurement (except for installment supply contract conclusions)
- Corporate Resolutions
- NDAs
- Software Licensing
- Healthcare
- Banking
- Real Estate (except for rental contracts, assumption of mortgage debt, and notification of assignment of a claim related to a mortgage)
- Lending (except for notification of assignment of rights by the creditor to the debtor and the validity of a deed promising a benefit to the deed holder)
- Chattel Paper
- Insurance
- Education
- Life Sciences
- Technology sector
- Documents to be Recorded
- Consumer Transactions, and
- Government Filings
Further Guidance
A document signed with a qualified electronic signature is considered full proof that the declaration was made by the holder of the signature key, as long as the document itself is authentic. According to the German Code of Civil Procedure, a qualified electronic signature serves as “prima facie” evidence of authenticity. This presumption can only be challenged by presenting facts that show the declaration was not made with the intention of the signature key holder.
Non-qualified electronic signatures are protected by the non-discrimination principle, meaning their legal effect and admissibility as evidence in court cannot be denied solely because they are electronic or do not meet the requirements for a qualified electronic signature. For simple and advanced electronic signatures, there are no special rules regarding the burden of proof or evaluation of evidence. To enhance the reliability of non-qualified electronic signatures, parties may use authentication methods and maintain an audit trail.
DISCLAIMER: The content provided on this website is for general informational purposes only and does not constitute legal advice. Laws and regulations may change rapidly, and DocuSign cannot ensure that all information presented here is up to date or accurate. If you have specific legal questions regarding any information on this site, please consult a qualified attorney in your jurisdiction.
Last updated: January 20, 2023