Electronic Signature Laws & Regulations - Germany

In general, the use of electronic signatures is not very common in Germany but is increasing. Certificate-based digital signatures are not commonly used in legal transactions due to the high costs and technical effort involved, however, their use is increasing in the business community.

The key laws in Germany that regulate the use of electronic signatures include:

1. The Vertrauensdienstegesetz (VDG) or the German Trust Services Act which implements the eIDAS Regulation and facilitates the use of electronic trust services per the eIDAS Regulation.
2. The Bürgerliches Gesetzbuch (BGB) or the German Civil Code which, among other things, dictates when the written form can be replaced by electronic form.

In Germany, statutes may require that certain contracts be concluded by either the text form or the written form. According to the BGB, the text form of a contract is a readable declaration that is made on a durable medium and in which the person making the declaration is named. In contrast, if written form is required by the BGB, the document must also be signed by the issuer using their name or their notarized and certified initials. Where German law requires the written form, the text form is not sufficient.

The BGB contains many provisions which require a written form for certain contracts. According to the BGB Section 126, the written form may be replaced by an electronic form, unless otherwise prescribed by a different statue. However, if electronic form is to replace the written form as stipulated in Section 126a, the electronic form must adhere to the following:

1. The issuer of the declaration must add his or her name to the electronic form and provide the electronic document with a qualified electronic signature (QES).
2. In the case of a contract, the parties must each provide a counterpart signed with a QES.

Simple electronic signatures and advanced electronic signatures (AdES) cannot be used when the written form for a contract is required, however they can be used to conclude a contract when the text form is required.

If there is no statutory form requirement then any type of electronic signature is sufficient to conclude a contract provided that all parties have agreed to use an electronic form and no other intention is discernible. When determining the type of electronic signature to use, it should be noted that a QES has higher evidentiary value than a non-qualified electronic signature. If a non-QES is used, it is up to the holder of the signature to demonstrate the preservation of the integrity of the content of the document.

Due to the fact that electronic signatures are not commonly used in Germany, judges are not generally very familiar with the laws surrounding them. However, on the basis of the German law on the promotion of electronic legal transactions with the courts (“Gesetz zur Förderung des elektronischen Rechtsverkehrs mit den Gerichten”), it is common for civil lawsuits to be filed electronically using the new infrastructure known as beA.

Special Considerations

Transacting with public sector entities

In Germany, contracts with the government (“public law contracts”) require a written form. Additionally, the Vergabeverordnung or German Public Procurement Regulation includes further provisions on the use of electronic signatures with government entities. One such provision allows the government, where necessary, to require that specific types of electronic signatures be used for expressions of interest, confirmations of interest, requests to participate and tenders.

Use cases that generally require a traditional signature

In Germany, the following types of documents are expressly excluded by several regulations from being signed electronically:

1. deeds
2. any document requiring notarization
3. termination of employment relationships
4. issuing of life annuity promises to grant maintenance under family law
5. issuing of guarantee declarations
6. making abstract promises of debt
7. making abstract acknowledgements of debt
8. agreement under public law with local government per the Verwaltungsverfahrensgesetz (VwVfG) or German Administrative Procedure Act