The eIDAS Regulation and the German Trust Services Act establish the framework for electronic signatures. However, not every digital signature carries the same legal effect. We explain the three levels of electronic signatures and show when each form is sufficient.
Digital Signatures in Legal Transactions: Which Signature Applies When?
The digitalisation of legal transactions continues to advance, yet considerable uncertainty persists in practice regarding when an electronic signature is legally binding. Many companies already use electronic signatures in their day-to-day business without being aware of the legal limitations. Others avoid their use even where it would be permissible and efficient. This article provides a legal classification of the various signature levels and offers practical guidance.
The European Legal Framework: eIDAS Regulation
The foundation for electronic signatures in the EU is Regulation (EU) No 910/2014 on electronic identification and trust services, better known as the eIDAS Regulation. It applies directly in all EU Member States and takes precedence over national law. The eIDAS Regulation defines three levels of electronic signatures and sets out requirements for trust service providers.
In Germany, the eIDAS Regulation is supplemented by the Vertrauensdienstegesetz (VDG), which regulates national supervision of trust service providers and designates the Bundesnetzagentur as the competent supervisory authority.
The Three Levels of Electronic Signatures
The eIDAS Regulation distinguishes three levels that differ in security and legal effect:
Simple Electronic Signature
The simple electronic signature is the lowest level. It encompasses any form of electronic data that is attached to or logically associated with other electronic data and is used for authentication. Examples:
- Scanned handwritten signature as an image file
- Name at the bottom of an email
- Checkbox confirmation in an online form
- Basic signature function in PDF software
The simple electronic signature has the lowest evidentiary value. It may be used as an indication in legal proceedings but does not establish a presumption of authenticity. Nevertheless, it is sufficient for many business transactions where no particular form is prescribed.
Advanced Electronic Signature
The advanced electronic signature must meet four requirements under Art. 26 of the eIDAS Regulation:
- It is uniquely linked to the signatory.
- It is capable of identifying the signatory.
- It is created using electronic signature creation data that the signatory can use under their sole control.
- It is linked to the signed data in such a way that any subsequent alteration of the data is detectable.
Typical examples are cryptographic signatures created via specialised software or platforms (e.g. DocuSign, Adobe Sign). The advanced signature offers higher evidentiary value than the simple signature, as the integrity of the document and the attribution to the signatory are technically verifiable.
Qualified Electronic Signature (QES)
The qualified electronic signature represents the highest level and is the only one that is legally equivalent to a handwritten signature (Art. 25(2) eIDAS Regulation). It must:
- be based on a qualified certificate issued by a qualified trust service provider,
- be created with a qualified electronic signature creation device (QSCD).
The identity of the signatory is personally verified before the certificate is issued (e.g. via video identification or in-person attendance). The qualified electronic signature enjoys the presumption of authenticity under Art. 25(2) of the eIDAS Regulation and has the same legal effect as a handwritten signature in all EU Member States.
Form Requirements under German Law: BGB §§ 125-129
German civil law provides for various form requirements that must be considered when choosing the type of signature:
Freedom of Form (General Principle)
Pursuant to § 125 BGB, freedom of form applies as a general principle. Most contracts can be concluded without any particular form, i.e. orally, by email, or with a simple electronic signature. Examples: purchase contracts for movable goods, service contracts, many advisory contracts.
Text Form (§ 126b BGB)
Text form requires a legible declaration naming the declarant. An email, a PDF, or a message in a messaging app satisfies text form. No signature is required. Text form suffices, for example, for:
- Withdrawal instructions
- Terminations under recent legislation (e.g. fitness studio contracts)
- Certain notices in tenancy law
Written Form (§ 126 BGB)
Written form requires a handwritten signature on the document. It may be replaced by electronic form pursuant to § 126a BGB, unless the law provides otherwise. Electronic form requires a qualified electronic signature.
Written form is required, inter alia, for:
- Surety declarations by natural persons (§ 766 BGB)
- Residential tenancy agreements with a term exceeding one year (§ 550 BGB)
- Fixed-term employment contracts (§ 14 Abs. 4 TzBfG)
- Employment references (§ 109 GewO)
- Terminations of employment relationships (§ 623 BGB)
Note: For the termination of employment relationships, electronic form is expressly excluded under § 623 BGB. A handwritten signature on paper is mandatory.
Notarial Authentication (§ 128 BGB)
Notarial authentication is the strictest form. It cannot be replaced by an electronic signature. The notary must personally participate, read out the document, and identify the parties. Notarial authentication is required, inter alia, for:
- Real estate purchase contracts (§ 311b BGB)
- GmbH articles of association and amendments (§ 2 GmbHG)
- Transfer of GmbH shares (§ 15 GmbHG)
- Prenuptial agreements (§ 1410 BGB)
- Inheritance contracts (§ 2276 BGB)
However, there has been progress in the digitalisation of notarial procedures. Since 2022, certain notarial procedures (in particular certifications) can be conducted via a video communication system (§ 16a ff. BNotO). Full authentication via online proceedings is currently still limited to certain transactions.
Practical Application Areas in Business
Contract Management
For most commercial contracts (supply agreements, framework agreements, NDAs), a simple or advanced electronic signature is sufficient, provided no special form is prescribed. The use of platforms such as DocuSign or Adobe Sign is legally unproblematic and significantly accelerates contract execution.
Human Resources
Particular caution is required in HR:
- Employment contract (permanent): Form-free, simple signature suffices. However: since the Nachweisgesetz 2022, a written record of the essential contractual terms must be provided in text form (since 2025).
- Fixed-term clause: Written form pursuant to § 14 Abs. 4 TzBfG, i.e. at least a qualified electronic signature.
- Termination: Exclusively handwritten signature, no electronic form.
- Written warning: Form-free, may be sent by email.
Accounting
Electronic invoices have become increasingly standard since the e-invoicing legislation. An electronic signature is not required for the tax recognition of an invoice. What matters is ensuring authenticity, integrity, and readability, which can also be achieved through an internal control procedure.
Qualified Trust Service Providers in Germany
Anyone wishing to use qualified electronic signatures needs a qualified certificate from an approved provider. In Germany, the following providers are among those qualified:
- D-Trust GmbH (subsidiary of Bundesdruckerei)
- sign-me (D-Trust)
- Governikus
- Swisscom Trust Services
The Bundesnetzagentur maintains a trusted list of all approved qualified trust service providers, which is available on its website.
Implementation Tips for Companies
- Inventory: Identify all document types and the applicable form requirements for each.
- Risk assessment: For form-free transactions, a simple or advanced signature suffices. For written form requirements, a QES or paper signature is necessary.
- Platform selection: Choose a provider that supports all three signature levels and offers seamless integration with your existing systems.
- Training: Sensitise your employees to the different signature levels and their application areas.
- Archiving: Ensure that signed documents are archived in an audit-proof and long-term accessible manner.
Conclusion
Electronic signatures can significantly accelerate and simplify business transactions. The crucial factor, however, is choosing the right signature level for the respective use case. Those who understand the form requirements of the BGB and the eIDAS Regulation can deploy digital signatures securely and efficiently. The team at compleneo is pleased to advise you on analysing your business processes and implementing a legally compliant signature strategy.
