eSignature Legality Guide

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The eIDAS Regulation is technology-neutral and broadly defines an electronic signature as data in electronic form that is attached to or logically associated with other electronic data and used by a signatory to sign. The regulation recognizes three types of electronic signatures: SES, AES, and QES.

• A Simple Electronic Signature (SES) is an electronic signature that does not meet the criteria for higher levels such as AES or QES. For example, typing a name at the end of an email may qualify as an SES.
• An Advanced Electronic Signature (AES) is an electronic signature that: (i) is uniquely linked to the signatory; (ii) can identify the signatory; (iii) is created using signature creation data that the signatory can use with a high degree of confidence under their sole control; and (iv) is connected to the signed data so that any changes are detectable.
• A Qualified Electronic Signature (QES) is a type of AES that is created by a qualified electronic signature creation device and is based on a qualified certificate. Sweden, as an EU member, follows ETSI (European Telecommunications Standards Institute) standards for QES technical requirements. In accordance with EU Regulation 910/2014/EU, Sweden maintains a public list of supervisory authorities for qualified certificate providers, together with other EU countries.

Article 25(1) states that an electronic signature cannot be denied legal effect or admissibility as evidence in legal proceedings solely because it is in electronic form or does not meet QES requirements. Articles 25(2) and (3) grant QES the same legal status as handwritten signatures and ensure that a QES recognized in one EU member state is recognized in all others. Recital 49 allows national laws to specify which type of electronic signature is required in particular situations.

Examples of transactions where an SES is generally suitable include:

• HR documents (excluding termination notices), such as standard employment contracts, NDAs, employee invention agreements, privacy notices, benefits forms, and other onboarding paperwork
• Commercial contracts between companies, including NDAs, purchase orders, order confirmations, invoices, procurement documents, sales agreements, distribution agreements, and service contracts
• Consumer contracts, such as consumer credit agreements, new account opening forms, sales and service terms, software licenses, purchase orders, order confirmations, invoices, shipping documents, user manuals, and policies
• Residential and commercial lease agreements
• Software license agreements
• Intellectual property licenses, including patents, copyrights, and trademarks
• Transfers of intangible property (e.g., patent and copyright assignments)

Transactions that may require a form of electronic signature other than SES include:

• AES or QES – annual reports prepared electronically (Ch. 2 Sec. 7 of the Annual Reports Act, Sw. Årsredovisningslagen)
• AES or QES – documents that must be signed under the Companies Act, unless otherwise specified (Ch. 1 Sec. 13, Sw. Aktiebolagslagen)
• AES or QES – certificates created electronically (Ch. 1 Sec. 5a of the Banking and Financing Business Regulation, Sw. Förordning om bank- och finansieringsrörelse)
• AES – electronic offers if required by the procuring entity (Ch. 10 Sec. 3 of the Act on Procurement in the Defence and Security Sector, Sw. Lag om upphandling på försvars- och säkerhetsområdet)
• AES – electronic revenue records (Sec. 26 of the Act on Transparency in the Financing of Political Parties, Sw. Lag om insyn i finansiering av partier)
• AES – electronic offers if required by the procuring entity (Ch. 9 Sec. 3 of the Act on Procurement within the Sectors Water, Energy, Transportation and Postal Services, Sw. Lag om upphandling inom områdena vatten, energi, transporter och posttjänster)
• AES – electronic offers if required by the procuring entity (Ch. 12 Sec. 7 of the Act on Public Procurement, Sw. Lag om offentlig upphandling)
• AES – documents that must be signed under the Act on Economic Associations, unless otherwise specified (Ch. 1 Sec. 15, Sw. Lag om ekonomiska föreningar)
• AES or QES – documents required by the Auditing Act (Sec. 2a, Sw. Revisionslag)
• AES or QES – documents needed for sellers to apply to the Debt Enforcement Authority for repossession of goods (Sec. 43 of the Consumer Credit Act, Sw. Konsumentkreditlagen)
• AES or QES – documents that must be signed under the Act on Membership Banks, unless otherwise specified (Ch. 1 Sec. 7, Sw. Lag om medlemsbanker)
• AES or QES – documents required by the Foundation Act (Ch. 1 Sec. 9, Sw. Stiftelselag)
• AES or QES – documents that must be signed under the Savings-bank Act, unless otherwise specified (Ch. 1 Sec. 4, Sw. Sparbankslag)
• AES or QES – documents needed for sellers to apply to the Debt Enforcement Authority for repossession of goods (Sec. 11 of the Credit Sales Between Undertakings Act, Sw. Lag om avbetalningsköp mellan näringsidkare m.fl.)
• QES – contracts for the purchase or transfer of real estate (Ch. 4 Sec. 1 Swedish Land Code, Sw. Jordabalken)
• QES – contracts for the purchase or transfer of owner-occupied apartments (Ch. 6 Sec. 4 Tenant-Owner’s Rights Act, Sw. Bostadsrättslag); note that AES is specifically excluded. Other deeds under this Act may be signed with AES unless otherwise specified (Ch. 1 Sec. 9).
• QES – contracts for the purchase or transfer of site leasehold rights (Ch. 13 Sec. 7 Swedish Land Code)
• QES – summons applications in civil cases (Ch. 42 Sec. 2 Swedish Code of Judicial Procedure, Sw. Rättegångsbalken)
• QES – certain family law contracts, such as marriage and cohabitation agreements (Ch. 7 Sec. 3 Marriage Code, Sw. Äktenskapsbalken, and Sec. 9 Cohabitees Act, Sw. Sambolagen)

The following types of transactions are either specifically excluded from digital or electronic processes, or require handwritten (wet ink) signatures or formal notarial procedures, which are generally not compatible with electronic signatures:

• Handwritten – signing of share certificates (Ch. 6 Sec. 3 Companies Act)
• Handwritten – signing of issue certificates, convertible instruments in the form of debentures, and warrant certificates (Ch. 11 Sec. 6 Companies Act)
• Paper or registered letter – employment termination notices must be delivered to the employee in paper form or by registered mail. The law does not specify the required signature type, so an electronic signature is generally acceptable as long as a physical copy of the notice is provided (Sec. 10, 20, and 38 Employment Protection Act, Sw. Lag om anställningsskydd)
• Handwritten/witness – testamentary documents (Ch. 10 Sec. 1 Inheritance Act, Sw. Ärvdabalken)
• Handwritten – certain corporate documents, including share certificates, issue certificates, and convertible instruments in the form of debenture or warrant certificates (Companies Act, Sw. Aktiebolagslagen)

It should be noted that, although the eIDAS Regulation equates QES with handwritten signatures, Swedish courts have not yet ruled on the practical interchangeability of wet-ink signatures and QES, so their equivalence remains uncertain in practice.

There are no explicit penalties for non-compliance stated in the law. However, failure to comply may result in electronically signed documents being considered invalid or unenforceable in court, or may lead to penalties under the laws governing the underlying transaction. Additionally, non-compliance could mean that documents are not accepted by government agencies such as the Companies Registration Office (Sw. Bolagsverket), which could cause delays or other consequences depending on the document type (for example, delays in company applications or filings).

The Swedish Supreme Court addressed electronic signatures in case NJA 2021 s 1017, where the main issue was whether sharing eID passcodes with another person constituted granting power of attorney. The Court confirmed that it did, and further clarified the scope of such power of attorney, including when third parties can rely on electronic signatures using eIDs (such as Swedish BankID) as if signed by the eID holder.

Lower courts in Sweden have also considered cases involving electronic signatures, mainly concerning consumer loans and allegations of fraud. In these cases, the courts have applied the burden of proof principle established by the Supreme Court in NJA 2017 s 1105, which requires the lender to prove that an alleged AES was used. If so, the signature holder must demonstrate that the use was unauthorized.