Belgian law in brief: under what conditions is an electronic signature legally equivalent to a wet ink signature ?
Published on 7th Jul 2020
According to the applicable Belgian and EU legislation, only qualified electronic signatures are automatically equivalent to a wet ink signature. This presumption doesn't exist for an ordinary or an advanced electronic signature. If the ordinary or advanced electronic signature is challenged in court, the burden of proof will lie on the shoulders of the signatory. However, disputes regarding the probative value of an electronic signature are scarce.
A qualified electronic signature is an advanced electronic signature that is created by qualified means (e.g. card reader or USB token) and that is based on a qualified certificate. The trust services providers listed on the EU trusted list as providers of qualified certificates for electronic signatures with qualified means, can generate qualified electronic e-signatures that are recognised in all EU countries. The conditions for qualified trust service providers and the qualified trust services they provide are regulated by the eIDAS Regulation.
It is also possible to validly sign documents by means of an electronic signature other than qualified electronic signature. It can either be a standard e-signature, such as a scanned wet ink signature or a name under an email, or an advanced e-signature, which is typically based on asymmetric cryptography. These non-qualified electronic signatures could be equivalent to a wet ink signature if they allow the signatories to be identified and to confirm their consent with the content of the document, and if they guarantee the integrity of the document. A certain doctrine considers that the latter condition doesn't have to be fulfilled since a wet ink signature does not especially guarantee the integrity of the document.
As of 1st November 2020, the new Book 8 on "Evidence" of the Civil Code will enter into force. The definition of electronic signature currently set forth in Article 1322, 2° of the Civil Code will be modified in reference to the eIDAS Regulation, entailing the withdrawal of the disputed condition relating to the integrity of the document.
If parties use a qualified electronic signature, there is a presumption that the signature identifies the author of the act and express their willingness to adhere to its content. The only control that the judge could exercise, in the event of a dispute, is to check whether the electronic procedure used matches the definition of a qualified electronic signature. However, if an ordinary or advanced electronic signature is used, the judge could verify that the aforementioned conditions are met and the burden of proof will lie on the shoulder of the signatory.
Article 15 of the Code of Economic Law foresees the rule of "functional equivalents" according to which a form requirement is not defined by reference to a specific process but with regard to the functions it allows fulfilling. Moreover, pursuant to the non-discrimination principle, an e-signature cannot be deemed inadmissible because it is electronic. Thus, all contracts concluded electronically are valid. As a simple example, the Belgian Economic Code expressly foresees the possibility of concluding a consumer credit agreement electronically, through a qualified e-signature or another type of e-signature, if the aforementioned conditions are fulfilled.
The choice of the type of e-signature will depend on a risk analysis and finding a balance between the flexibility for the signatory and the level of protection and security of the signature. In addition, specific legal provisions could impose or restrict the use of a certain type of e-signature. To help you determining the appropriate e-signature, please consult our interactive guides.