Electronic Signature Laws & Regulations - France

The use of electronic signatures in electronic contracts is increasing in France, especially in the context of e-commerce. Certificate-based digital signatures, such as qualified electronic signatures (QES), are mainly reserved for specific regulated business activities such as those involving notaries, lawyers, banking institutions, and bailiffs, where the evidential nature of the signature has a significant importance.

The eIDAS Regulation impact under French law is the distinction between:

1. Notarization where most documents requiring notarization must be signed using qualified electronic signatures;
2. e-administration (including public procurement) where, at a minimum, an advanced electronic signature based on a qualified certificate is required; and
3. legal acts between private stakeholders where a simple electronic signature or an advanced electronic signature are generally sufficient.

Next to eIDAS, the French Civil Code is the main legal instrument regulating electronic signatures in France as well as the evaluation and certification of IT products, devices and systems used for creating electronic signatures.

Under French Law, only a QES benefits from a presumption of reliability meaning that the electronic signature is deemed reliable unless the party challenging the signature proves that the signature isn’t reliable. Non-qualified electronic signatures (SES and AES) remain admissible in court if the party attempting to introduce the signature is able to prove that the signature is reliable.

For a signature to be deemed reliable, it should:

1. clearly identify the person from whom it originates; and
2. be established and stored in conditions which ensure its integrity

The above conditions are fulfilled by the use of a reliable process of identification of the signatory which can certify the link between the agreement and the signature, and which certifies the integrity of the document.

Accordingly, under the French Civil Code, an electronic document has the same evidentiary value as a paper document provided that the above reliability conditions are met.

In France, the Agence nationale de la sécurité des systèmes d'information (ANSSI) publishes the Liste Nationale de Confiance as well as the Liste des produits et services qualifiés. However, the full French list of QTSPs is available at: https://webgate.ec.europa.eu/tl-browser/#/tl/FR.

Special Considerations

Transacting with public sector entities

In France, advanced electronic signatures based on a qualified certificate are generally required for e-administration matters including public procurement contracts, tax documents, digital medical files and decisions made by the judicial courts and commercial courts.

Use cases that require a QES

Under French law, a QES is required for the following electronic transactions:

1. A deed signed by a notary; and
2. Decisions ruled by judicial and commercial courts

Use cases that generally require a traditional signature

Although French law does not specify any documents or agreements that cannot be signed or executed electronically, the following documents may need to be signed using a wet signature:

1. Documents that create or transfer rights in immovable property;
2. Documents related to family and inheritance law (e.g., marriage certificates, wills, deeds etc.).
3. Documents related to personal and real guarantees (except when they are given by persons acting for purposes of trade, business or profession).

Temporary Measure in response to COVID-19

Decree No 2020-395 dated 3 April 2020 has authorized notaries to perform their acts without the physical presence of each party. This decree is set to last for the period of the health state of emergency and to extend one month after the end of the state of emergency.