Electronic signature law in commercial contracts in Austria

§ 886 of the Austrian Civil Code ("ABGB") stipulates the written form requirement and reads as follows: "A contract, which the law or the intention of the parties requires to be in writing, is concluded by the signature of the parties or, if they are illiterate or not able to write due to a physical disability, by adding their sign notarized by court or a notary public or adding their sign in front of two witnesses, one of whom adds the name of the party. The written conclusion of a contract is replaced by notarization by the court or a notary public. A facsimile of the personal signature in a mechanical form is only sufficient to the extent it is common use in commercial transactions".

Wherever the law requires written form, the parties must provide a signature. This can - with a few exceptions - also be done via qualified e-signature.

Guarantee contracts according to § 1346 ABGB; Condominium contracts pursuant to § 2 (2) (1) Austrian Condominium Act ("WEG"); Property development contracts pursuant to § 5 (4) of the Austrian Property Development Contracts Act ("BTVG"); bank guarantee contract according to § 1346 ABGB (analogous); fixed-term rental agreements pursuant to § 29 (1) (3) Austrian Act on Tenancy Law ("MRG"); Consumer credit agreements or current account agreements according to §§ 33f Austrian Banking Act.

The provisions which are relevant to proper accounting and storage of electronic documents can be found in both the Austrian Commercial Code ("UGB") and the Federal Fiscal Code ("BAO").

According to § 190 (5) UGB, entrepreneurs may use data carriers, provided that the following provisions are fulfilled at any time up to the expiry of the statutory retention period:

• Identical, complete and orderly reproduction; 
• Authentic reproduction for documents according to § 212 Abs 1 UGB; and
• Legibility of electronically transmitted documents.

An exception exists for documents under § 212 (1)  of the UGB which are only available for  data carriers (e.g. e-invoice in the form of an e-mail). In these cases, the original document is not reproduced faithfully. The e-mail can be deleted if it does not contain any invoice features and does not have to be kept. Authentic reproduction means that written or printed reverse sides of the documents must also be scanned. Colour fidelity is only required if information or context would otherwise be lost due to the colour design.

Further specific legal provisions are laid down in various material laws. For example, pursuant to § 40 (3) BWG, credit and financial institutions are required to retain all documents that serve to identify a customer, as well as the receipts and records relating to individual transactions. The retention period shall be at least five years after termination of the business relationship with the customer.

Via the Electronic Legal Transactions of the Justice System ("ERV"), all initial and subsequent entries (lawsuits, responses to lawsuits, applications, written pleadings, appeals, filing of claims, etc.) including enclosures can be transmitted and received electronically and securely to the Austrian courts and public prosecutor's offices (initial entries only).

All those documents for which notarial certification (e.g. contracts on real estate transactions) or a notarial act (e.g. assignment contracts of shares) are required by law, these must be signed with a wet ink signature. 

In addition to the eIDAS regulation, the following laws are relevant in Austria regarding e-signatures:

• Signature and Trust Services Act ("SigG")
• E-Government Act ("E-GovG")
• Signature and Trust Services Regulation ("SVV")

As mentioned above, there are also certain material laws which provide for certain special provisions concerning the storage of documents.

7.1 Remarks/Comments to use cases (if yes/no answer is not sufficient)

In Austria, whenever a handwritten signature is required by law, the qualified electronic signature in terms of the eIDAS Regulation is needed.

Please note also that the legal consequences of disregarding the requirement of written form may vary depending on the type of legal transaction.