Electronic Signature Laws & Regulations - Switzerland

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.

• Swiss Federal Act on Electronic Signatures (FAES) – which defines four types of electronic signatures, regulates the conditions under which service providers may use certification services with electronic signatures, and provides a framework outlining the provider’s obligations and rights applicable to the provision of certification services.
• The Swiss Code of Obligations (CO) - which generally considers a certificate-based digital signature to be equivalent to a handwritten signature if it is based on an authenticated digital certificate issued by an accredited provider of certification services in Switzerland.

The FAES distinguishes between four different types of electronic signatures with increasing levels of trustworthiness and evidentiary value:

1. Simple electronic signature (SES) – data in electronic form, which is attached to, or logically associated with, other data in electronic form and which aims at authenticating such data.
2. Advanced electronic signature (AES) – a SES that is also:
   1. uniquely linked to its holder;
   2. capable of identifying its holder;
   3. created with means which the holder can use under his or her sole control; and
   4. linked to the associated data in such a way that any subsequent change in the data is detectable.
3. Regulated electronic signature (RES) – an AES that is created by a secure electronic signature creation device under the FAES and is based on a regulated certificate.
4. Qualified electronic signature (QES): - a RES that is based on a qualified certificate.

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.

Special Considerations

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:

• Consumer-related documents relating to tenancy and employment law for apprenticeships
• Entire documents that must be written by hand, such as a contract of surety or holographic wills
• Documents requiring notarization or public certification such as:
  • Marriage and inheritance contracts
  • Real estate transactions
  • Establishment of legal entities, corporations, or foundations (as well as the amendment of their statutes)
  • Assignment of claims, bankruptcy