In Switzerland, electronic signatures are regularly used where written form is not explicitly required by regulations. In fact, certain types of electronic signatures have a higher probative value than handwritten signatures due to the enhanced ability to prove the signature’s authenticity. Digital signatures which require a digital certificate tend to be less common. This is likely because these signatures require the involvement of a relatively complex infrastructure with the interaction of a third-party trust service provider.
There are two main laws covering the use of electronic signatures in Switzerland.
The FAES distinguishes between four different types of electronic signatures with increasing levels of trustworthiness and evidentiary value:
Article 2(g) of the FAES specifies that a digital certificate used for a RES or QES must be issued by a certified organization that provides services in accordance with the requirements set out in the FAES and who is certified by an accredited conformity assessment body. Additionally, a qualified certificate can only be issued on behalf of a natural person and must contain an entry stating that it is valid for electronic signature only.
In Switzerland, there are currently only four certified bodies: Swisscom (Schweiz) AG, QuoVadis Trustlink Schweiz AG, SwissSign AG, and the Federal Office of Information Technology, Systems and Telecommunication.
According to the Swiss Civil Procedure Code, the providers of a RES and QES are liable to third parties for any loss or damage suffered as a result of relying on a valid regulated or qualified certificate.
Under Swiss procedural law as governed by the Swiss Civil Procedure Code, Swiss courts are free in their appraisal of the evidence presented to them, and there is no preference by law for certain forms of evidence. Thus, an electronic signature cannot be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form or that it does not meet the requirements for a QES. However, if a SES or AES is used, then it is up to the holder of the signature to demonstrate that the integrity of the content of the document was preserved. Additionally, while SES, AES, and RES may not be denied legal effect and admissibility as evidence, it does not necessarily mean that it will receive the same legal treatment as a handwritten signature. In Switzerland, only a QES combined with an authenticated stamp has the same legal effect as a handwritten signature.
In general, Swiss law does not prohibit the storage and processing of electronic signature data outside of Switzerland. However, the Swiss Federal Act on Data Protection (FADP) should be respected when processing signature data that contains personal data. The FADP outlines rules on data transfers abroad as well as general data protection principles of lawfulness, good faith, purpose limitation, proportionality and transparency.
Transacting with public sector entities
Unless qualified written form requirements are imposed by legislation, there are no restrictions on using electronic signatures with government entities.
Use cases that generally require a traditional signature
While a QES combined with an authenticated stamp has the same legal effect as a handwritten signature, a QES may not actually be sufficient to validly conclude a contract where Swiss law requires qualified written form. Swiss law provides for a number of mandatory written form requirements that may apply, depending on the scope and content of the contract in question. Thus, it is recommended to assess the need for a handwritten signature on a case-by-case basis, considering the scope and content of the documents in question. Specific use cases that generally require a traditional written signature include:
Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures. However, Adobe cannot provide legal advice. You should consult an attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Adobe provides this material on an "as-is" basis. Adobe disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.