As a European Union (EU) Member State, the Netherlands are 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 and certificate-based digital signatures is common in the Netherlands, easing contracting processes in a digital environment. Dutch contract law does not require written agreements to be signed, instead for most use cases mere ‘consent’ constitutes a valid agreement. Also, in most situations where a signature is required, such signature may be provided in electronic form.
Next to eIDAS, the Dutch Civil Code and the Law of 21 December 2016 Act, also referred to as the Implementation Act EU-Regulation electronic identification and trust services, are the most important legal instrument in the context of electronic signatures in the Netherlands.
Article 15a, book 3 of the Dutch Civil Code states that “an electronic signature has the same legal consequences as a handwritten signature, if the method of signature used for the electronic signature is sufficiently reliable, having regard to the purpose for which the electronic signature is used and all other circumstances of the case”.
Additionally, Articles 227a, 227b and 227c, book 6 on “Contracts concluded electronically” establishes the general rule is that if an agreement is only valid in written form, this requirement is also met if the agreement has been concluded electronically if:
Under Dutch law, documents signed with a qualified electronic signature (QES) normally constitute binding evidence in court. Binding evidence means that the content of the document is regarded true, unless the contrary is proved. For documents signed with a non-qualified electronic signature, the Dutch Supreme Court confirmed that the signature must be ‘sufficiently reliable’ for the document to be classified as binding evidence. If the documents are not classified as binding evidence, additional evidence may be required to demonstrate the authenticity of the electronic signature.
Since signatures are seldom required in the Netherlands, simple electronic signatures are commonly used. In this context, an electronic signature may be anything from a signed and scanned document, an 'accept' button, a 'real' signature on an iPad or other device or typing in a PIN pincode. More complex transactions that require more reliability and security generally require an advanced or qualified electronic signature. Whether a transaction is simple or more complex is not clearly set forth, but parliamentary history shows that the economic value and nature of the transaction often play a role.
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 QTSP providers for the Netherlands is https://webgate.ec.europa.eu/tl-browser/#/tl/NL.
There are no restrictions in Dutch law that prohibit storage or processing of electronic signature data outside of the Netherlands. However, the EU General Data Protection Regulation (GDPR) is applicable in The Netherlands.
Transacting with public sector entities
There are no specific regulations regarding transacting with public sector entities. However, for contracts which require the intervention of the court, authority or profession exercising a public service mission, there is no automatic equivalency between a wet signature and an electronic signature. In this case, electronic signatures are not allowed if there are practical obstacles to fulfilling a legal or regulatory requirement in the context of the conclusion of a contract by electronic means.
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