eSignature Legality Guide

According to the eIDAS Regulation, an "electronic signature" is defined as data in electronic form that is attached to or logically associated with other electronic data and used by the signatory to sign (Article 3.10 eIDAS).

The eIDAS Regulation distinguishes between three categories of electronic signatures: "simple" electronic signatures, "advanced electronic signatures" (AES), and "qualified electronic signatures" (QES).

• A "simple" electronic signature is any electronic signature that does not meet the requirements for AES or QES. For example, typing a name at the end of an email may be considered a simple electronic signature.
• An "advanced electronic signature" (AES) is an electronic signature that fulfills additional criteria to ensure a higher level of security and reliability.
• A "qualified electronic signature" (QES) is a specific type of advanced electronic signature created using a qualified electronic signature creation device and based on a qualified certificate (Article 3.12 eIDAS). The certificate must be issued by a trust service provider listed as qualified in an EU member state, and the signature creation device must be certified by an EU member state. QES is the only type of electronic signature that is legally equivalent to a handwritten signature in all EU member states (Article 25.2 eIDAS).

Dutch law fully aligns with the eIDAS Regulation and does not introduce additional definitions.

There are only a few types of agreements, or certain exceptions under the Dutch Civil Code (DCC), that require a "written agreement."

According to 6:227 DCC, a document that must be in writing may also be in electronic form if the following conditions are satisfied:

• The document can be accessed by the parties;
• The authenticity of the agreement is adequately ensured;
• The date and time of the agreement’s conclusion can be established with sufficient certainty; and
• The identities of the parties can be determined with sufficient certainty.

In Dutch contract law, written agreements do not always require a signature; generally, mutual "consent" is enough to form a valid contract. Whenever a signature is required or preferred, it may be provided electronically.

For more "complex" transactions, a higher level of reliability and security is recommended, so using an AES or QES may be advisable. The term "complex" is not specifically defined in Dutch law, but legislative history suggests that the economic value and nature of the transaction are relevant factors.

Certain documents, such as notarial deeds, powers of attorney for notarial acts, oaths, affirmations, affidavits, statutory declarations, or other enduring documents, may be subject to specific requirements that prohibit electronic execution. Additional rules may also apply to financial and real estate documents.

Documents signed with a QES are generally considered binding evidence in court. For other types of electronic signatures, or even unsigned documents, the court has discretion to determine their evidentiary value. The Dutch Supreme Court has ruled that, for non-QES electronic signatures, the key criterion is whether the signature is "sufficiently reliable" to serve as binding evidence.

Under Dutch law, statutory enforcement penalties do not automatically apply in cases of non-compliance with signature requirements. Parties may dispute the validity of an electronic signature and, as a result, the enforceability of the agreement. Since most contracts under Dutch law can be concluded in any form (electronic or paper), failure to comply with electronic signature requirements does not necessarily make an agreement unenforceable. Courts will also consider the reasonable expectations of the parties, based on their statements and conduct, when deciding if a contract was formed.

The following cases illustrate how Dutch courts have addressed electronic signatures:

• Dutch Supreme Court, 14 June 2019, ECLI:NL:HR:2019:957 (3.1.7, 3.1.8, 2.1.9);
• District Court The Hague, 8 May 2018, ECLI:NL:RBDHA:2018:6370;
• District Court Zeeland-West-Brabant, 7 October 2020, ECLI:NL:RBZWB:2020:4817;
• District Court Rotterdam, 18 March 2022, ECLI:NL:RBROT:2022:3242