Electronic signatures play a fundamental role in the digital transformation of companies today. Between savings, time gains, and increased productivity, they revolutionize the daily lives of professionals in many fields of activity. Commercial exchanges are thus streamlined and secured, and the company can focus on high-value tasks.

However, if its benefits are numerous, the electronic signature is difficult to democratize and there is still mistrust concerning its legality and legal value. Indeed, its legislative framework remains largely unknown to the public.

A closer look at the legal framework surrounding electronic signatures!

What is an electronic signature? 

An electronic signature is a cryptographic process (sequence of numbers) that authenticates the signer and guarantees the integrity of the document, on equal footing with its handwritten counterpart.

The digital signature must therefore allow the recipient of a document to identify the individual or organization that has affixed the signature and ensure that the document has not been modified between the time of signing and the time of reading.

Thus, the electronic signature must be:

• Authentic, the signature must allow the signer to be identified with certainty;
• Unforgeable, the device must prevent any falsification of the document;
• Non-reusable, the affixed signature is unique and inseparable from the document on which it appears;
• Unalterable and irrevocable, the system must not allow the signed document to be modified.

What legal framework?

French law has recognised the legality of electronic signatures since the 2000s. However, it is truly the European eIDAS Regulation, which came into force on 1 July 2016, that establishes a clear and uniform legal framework around digital signatures.

This regulation aims to simplify and harmonise the use of digital identification and authentication services, to guarantee their legal security and to strengthen digital trust.

Article 25.1 of the European regulation establishes the principle of non-discrimination, according to which "the legal effect and admissibility of an electronic signature as evidence in court cannot be denied solely on the grounds that this signature is in electronic form or that it does not meet the requirements of the qualified electronic signature." The European regulation thus consecrates the legal value and evidentiary value of the electronic signature within the European Union.

The regulation is directly applicable in all EU member countries, so that the electronic signature is a legally valid process in France.

Beyond the eIDAS Regulation, French law recognises and specifically regulates the legality of the electronic signature:

• Article 1366 of the Civil Code: "The electronic document has the same evidential weight as the document on paper, provided that the person from whom it originates can be duly identified and that it is established and kept in conditions that guarantee its integrity."
• Article 1367 of the Civil Code: "The signature necessary for the perfection of a legal act identifies its author. It manifests his consent to the obligations arising from this act. When it is affixed by a public officer, it confers authenticity on the act. When it is electronic, it consists in the use of a reliable identification process guaranteeing its link with the act to which it is attached. The reliability of this process is presumed, until proven otherwise, when the electronic signature is created, the identity of the signatory ensured and the integrity of the act guaranteed, under conditions set by decree in the Council of State."

Consequently, the legal value of an electronic signature is equivalent to that of a handwritten signature in the eyes of the French legislator.

Note: the Decree of 28 September 2017 specifies the technical conditions of the electronic signature.

Electronic Signature: For What Types of Contracts? 

With a few exceptions, all documents can now be signed using the electronic signature device:

• All contracts and business documents (invoice, service contract, confidentiality agreement, non-competition agreement, financial securities subscription form, shareholders' agreement...);
• All work contracts and HR documents (amendment, pay slip, letter of allocation of BSPCE and other employee share ownership titles...).

The only restrictions concern private deeds, in accordance with Article 1175 of the Civil Code:

• Acts relating to family law and successions (will, undivided agreement, PACS agreement...);
• Acts relating to personal or real securities, of a civil or commercial nature (guarantee, pledge...).

What Are the Different Categories of Electronic Signatures? 

Under European law, there are 3 types of electronic signatures. The level of security and reliability as well as the conditions of use of the signatures vary from one category to another.

1. Simple Electronic Signature

The simple electronic signature is defined by European regulation as "data in electronic form, which are attached or logically associated with other data in electronic form and which the signatory uses to sign".

There are no particular requirements for this category of signature, so it is the least reliable signing procedure. Indeed, it does not require the implementation of a process to verify the identity of the signatory.

Although its level of security is limited, the simple electronic signature is the most commonly used type of signature as its use is easy and quick.

Practical cases: low legal risk documents (delivery receipt, terms and conditions of a website...).

The simple signature process can however be strengthened and become more reliable through the implementation of an evidence file to counter any challenge to the signature. This evidence file can be made up of elements such as the signatory's email address, the IP address of the computer used to sign the document...

2. Advanced Electronic Signature

Under the eIDAS regulation, the electronic signature is advanced when it meets the requirements of Article 26:

• Be uniquely linked to the signatory (certain);
• Allow the signatory to be identified (authentication);
• Have been created using electronic signature creation data that is accessible and controllable only by the signatory;
• Be linked to the data associated with this signature so that any subsequent change can be detected (integrity of the signed document).

The advanced signature thus relies on a more reliable identification system to enhance its security. More concretely, this can be manifested by the transmission of an ID on the platform which allows the provider to check the accuracy of the information provided and authenticate the signature.

This can also be done through the addition of an authentication step using an SMS code received by the signatory and necessary for the validation of the signature.

Practical cases: commercial, legal and administrative documents (employment contract, quote, invoice, sale agreement, minutes of governance bodies...).

3. Qualified Electronic Signature

The qualified electronic signature is the signature format offering the highest level of legal and technical security. It relies on a more complex device:

• Prior verification of the signatory's identity by a certification authority;
• Issuing a qualified electronic signature certificate allowing the signatory to sign.

Use cases: documents for which the signatory's authentication is necessary (authentic deeds, acts concluded with public bodies...).

At Equify, we offer you secure electronic signature processes that comply with European and French regulations for the management of your legal corporate.

Employee share ownership, fundraising or governance events: customize your documents on Equify thanks to our mail merge feature and send them for signature to the stakeholders in a few clicks.

Would you like to learn more about the features offered by Equify? Don't hesitate to ask us for a demo by clicking here.