Electronic Signature Laws & Regulations - Belgium
As a European Union (EU) Member State, Belgium is governed by Regulation No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS). For more information on eIDAS, please read the Electronic Signature Laws & Regulations in the EU.
In general, the use of electronic signatures is common in Belgium, easing contracting processes in a digital environment. However, subject so some specific exceptions the use of certificate-based digital signatures is still evolving as their use is not yet mandatory under Belgian law. In Belgium, no one can be obliged to contract electronically, thus the option for a handwritten signature should always be open.
Next to the eIDAS Regulation, the most important legal instrument in the context of electronic signatures in Belgium is the law of 21 July 2016 Act, also referred to as the Digital Act.
The Belgian Civil Code and the Belgian Economic code (as adapted by the Digital Act) also govern the use of electronic signatures. The Belgian Civil Code states that “a set of electronic data attributable to a specific person and demonstrating the preservation of the integrity of the content of the document can be regarded as a legally valid signature”. The Belgian Economic Code also establishes a general rule regarding contracts concluded electronically; that when the electronic means fulfills the functional quality of any legal or regulatory form requirement for the conclusion of a contract, the electronic means (e.g. an electronic signature) can be used to conclude a contract.
In Belgium, the express or tacit requirement for a signature in an electronic environment is fulfilled when the electronic signature can be regarded as:
- a set of electronic data attributable to a specific person and demonstrating the preservation of the integrity of the content of the document; or
- a qualified electronic signature (QES)
Under current Belgian law, only employment agreements and private house/flat lease agreements need to be signed with a QES. Additionally, when a law or regulation in Belgium imposes an explicit obligation to date, send by registered mail or to retain (archive) the documents, it is best practice to sign these documents with a QES. Outside of these narrow use cases, digital signatures (such as a QES) are not yet required in Belgium. However, it is expected that this legal obligation will be introduced once there is a sufficient and competitive supply of qualified services on the market and the use of qualified services is a common and affordable practice. Once the legal obligation to use a digital signature is in force, a QES should be used when the following conditions are cumulatively met:
- the user opts for electronic means (they also retain the choice of the paper solution);
- there is an explicit legal or regulatory requirement (of archiving, timestamp or registered mail);
- there is no specific system provided for by a special law (for example as in labor law).
EU Member States have the obligation to establish, maintain and publish trusted lists of Qualified Trust Service Providers (QTSPs) and the qualified trust services provided by them. A QTSP certified in any EU Member State will be recognized as a QTSP by all other Member States. Accordingly, no EU Member State may question the qualified status once a QTSP has been added to the trusted list by the supervisory authority of another Member State. The trust list for QTSPs in Belgium is available at: https://webgate.ec.europa.eu/tl-browser/#/tl/BE.
There are no restrictions in Belgian law that prohibit the storage and processing of electronic signature data outside of Belgium. However, the EU General Data Protection Regulation (GDPR) is applicable in Belgium.
Transacting with public sector entities
In Belgium, government entities can have specific rules on the use of electronic signatures. Additionally, for contracts where the government is involved, the equivalence rule (that a handwritten or “wet” signature can be replaced by an electronic signature) does not apply to contracts for which the law requires the intervention of the authority or entity exercising a public service if there are practical obstacles to the fulfillment of a legal or regulatory requirement in the context of concluding the contract by electronic means. Thus, depending on the governmental entity at stake, the relevant regulations or laws should be consulted.
Use cases that generally require a traditional signature
The general rule in Belgium is that an electronic signature can be used so long as the electronic means fulfils any legal or regulatory form requirement for the conclusion of a contract. However, this general rule does not apply in all cases and the following contracts require a handwritten signature:
- contracts which create or transfer rights in immovable property, with the exception of rental rights;
- contracts for personal and real guarantees given by persons acting for purposes other than their trade, business or profession;
- contracts governed by family law or inheritance law;
- contracts for which the law requires the intervention of the court, government authority or profession exercising a public service mission.
Use cases that require the intervention of the court include:
- the sale of the debtor’s assets by the liquidator in the event of bankruptcy;
- judicial reorganization by means of transfer under judicial supervision;
Use cases that require the intervention of a government authority include:
- contracts that require prior authorization or a license
- contracts that must be submitted to a supervisory authority for approval
Use cases that require the intervention of a profession exercising a public service mission include:
- long-term leases (by notarial deed);
- public auction of seized goods administered by a judicial officer or a notary
A traditional signature is also required if there are practical obstacles to the fulfillment of a legal or regulatory formal requirement in the context of the conclusion of a contract by electronic means.
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