As a European Union (EU) Member State, Austria 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.
The use and acceptance of electronic and certificate-based digital signatures is widespread in Austria and has increased in recent years. Certain professionals, such as lawyers and notaries, are required to make submissions to courts electronically, which entails electronic authentication. Electronic signatures are also being used increasingly in day-to-day transactions. However, it should be noted that, in Austria, a person cannot be forced to contract electronically; the option to make use of a handwritten signature should always be open.
Next to eIDAS, the Signature and Trust Services Act (Signatur- & Vertrauensdienstegesetz or SVG) is the most important source of law regarding electronic signatures in Austria. On the basis of the SVG, the Federal Minister of Economic Affairs and the Federal Minister of Justice issued the Signature and Trust Services Ordinance (Signatur- & Vertrauensdienseteverordnung), which specifies the requirements for: (i) the application and issuance of qualified certificates; (ii) trust service providers; (iii) certificate databases; and (iv) fees for the supervisory body.
The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB), section 886 states that qualified electronic signatures (QES) fulfills the requirement of written form pursuant to Section 4 Para 1 of the SVG. Additionally, section 294 of the Austrian Code of Civil Procedure (Zivilprozessordnung or ZPO) states that documents that are signed by the issuer provide full proof that the contents of the document stem from the issuer. Since QES are treated as equivalent to a handwritten signature, this section also applies to qualified electronic signatures. Accordingly, any party contesting the authenticity of such a document carries the burden of proof in Austria.
Section 5 of the SVG provides that signatories and creators of seals must securely store signatory data that relates to QES and qualified seals and prevent access to or transfer of such data by unauthorized parties. In case of a loss of signatory data or suspicion that the data may have been compromised, the signatory is obliged to request a revocation of the qualified certificate.
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 list of trust service providers for Austria (in English) is available at: https://www.signatur.rtr.at/en/vd/Anbieter.
In general, there is no restriction in Austrian law that would prohibit the storage and processing of electronic signature data outside of Austria. The SVG specifies that data connected to a signature should be stored in accordance with state-of-the-art safety measures. However, the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) is applicable in Austria
Transacting with public sector entities
Government entities use an administrative signature (an advanced electronic signature, according to eIDAS Regulation designations) when issuing official documents. A document carrying said signature is regarded as official and caries the corresponding level of authenticity. The administrative signature is used by the government, courts and administrative authorities.
There is a certain obligation to use electronic means of communications in public procurement procedures. The transmission of tender documents, competition documents, offers and the like must be attached with a qualified electronic signature, a qualified electronic seal, an administrative signature or another form with comparable reliability. The use of a basic or advanced electronic signature would not suffice in this context.
The Federal Minister of Justice may, in accordance with the Federal Minister of Finance as well as the State Government, designate a specific electronic communication platform that must be used by the contracting entity.
Use cases that generally require a traditional signature
The SVG provides that certain documents may not be signed electronically including:
- Last wills;
- The following declarations of intent that are only valid if the document is accompanied by the confirmation of a notary or lawyer:
- matters of family or inheritance law that are subject to written or stricter form requirements (such as matters concerning child and youth welfare services, legal guardianship and healthcare proxy)
- Sureties, given by a person not acting within their commercial, business or work-related capacity.
A number of documents require a notary deed or notary certification of signature. An amendment to the Act on the Notary Profession (Notariatsordnung, or NO) provides that a notary deed may be issued electronically where permitted by statutory law. In such cases, all concerning parties must be either physically present alongside the notary or connected via a real-time visual and audio two-way connection. Even with the presence of the NO Amendment, The Act on Notary Deeds expressly requires handwritten notary deeds for:
- marriage contracts;
- agreements among spouses regarding sales, exchanges, annuity, loans, admission of obligation;
- donation contracts without actual delivery; and
- documents established by blind persons regarding legal business between living persons, except:
- transactions of day-to-day business and common banking agreements, specifically opening of current accounts; and
- other transactions, except declarations of surety, if the blind person has expressly waived this formal requirement vis-á-vis the other party.
Additionally, the incorporation into the land register generally requires a public deed or a private document wherein the signatures of the parties are certified by a court or a notary. This constitutes a special form requirement that cannot be replaced by a qualified electronic signature. This requirement concerns various real property agreements which must be registered in the land register for full validity, including sale and purchase agreements and mortgage agreements.
The Company Register (or companies listed therein) may require that certain documents be accompanied by a notary certification or a notary deed, which cannot be replaced by a qualified electronic signature. These documents include the drawing up of the statutes, the appointment of the first supervisory board and minutes of general meetings.
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