1. Definition and formal requirements of written legal statements or legal statements legally binding if the law requires written form
If written form is required by statute, the document must be signed by the issuer with his name in his own hand, or by his notarially certified initials (sec. 126 (1) German Civil Code - BGB). For contracts, the signature of both parties must be made on the same document. If more than one counterpart of the contract is created, it suffices if each party signs the document intended for the other party (sec. 126 (2) BGB). Written form may be replaced by so called electronic form in terms of sec. 126a BGB, unless statutory law requires otherwise (sec. 126 (3) BGB).
If electronic form is to replace the written form prescribed by statute, the issuer of the declaration must add his name to it and provide the electronic document with a qualified electronic signature in accordance with the eIDAS Regulation and the German Trust Services Act (Vertrauensdienstegesetz - VDG) (sec. 126a (1) BGB). In the case of a contract, the parties must each provide a counterpart with an electronic signature as described in subsection (1) (sec. 126a (2) BGB). A combination of electronic form and written form is possible (i.e. one party uses the electronic form and the other signs the contract in written form with a wet ink signature).
2. Examples for legal statements and contracts where written form is required
Lease agreements for a longer period than one year (sec. 550 BGB); consumer credit agreements (sec. 492 (1) BGB); receipts (sec. 368 BGB); termination of employment (sec. 623 BGB); declarations of surteyship (sec. 766 BGB); court statements and other procedural documents (secs. 130 No. 6, 130a Civil Procedure Act - ZPO); contracts for temporary personnel leasing (sec. 12 (1) Temporary Employment Act - AÜG), fixed-term employment contracts (14 (4) Part-Time and Limited Term Employment Act - TzBfG)
3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
Principles for the proper keeping and storage of books, records and document in electronic form and for data access (GoBD), published by the Federal Ministry of Finance. The GoBD contain statements by the tax authorities on formal requirements for the accounting and storage of tax-relevant electronic documents and data in compliance with the principles of proper accounting.
The Technical Guidelines No. 03125 and 03138 by the Federal Office for Information Security provide important information on the technical implementation of replacement scanning and the preservation of the evidential value of cryptographically signed documents.
4. Main and relevant court practices
It is insufficient to sign a variety of documents that each require a Qualified Electronic Signature (QES) with one single QES (so-called "container signature"). Each of the documents has to be signed individually with QES (Federal Supreme Court (BGH) 2019/5/15, XII ZB 576/18).
If an electronic pen is used to sign on a tablet, neither the electronic document on the tablet nor the printout on paper will meet the requirements of secs. 126a, 126 BGB. The sections also cannot be applied analogously because the legal requirements are clear and exhaustive (Higher Regional Court Munich (OLG München), 2012/6/4, 19 U 771/12).
As a replacement for the signature, sec. 130a (1) 2nd sentence ZPO allows the use of a QES. In order to be equivalent to a handwritten signature, this signature must be made by the person whose signature would satisfy the formal requirement. In the case of an electronically transmitted statement of grounds of appeal, the QES therefore must be provided by a lawyer authorised to represent the appellant before the Court of Appeal and, for example, not a paralegal (Federal Supreme Court (BGH) 2010/12/21, VI ZB 28/10).
If a monetary restriction is entered for the certificate of a QES (e.g. "monetary restriction of EUR 100"), this does not prevent the validity of the QES (Federal Finance Court (BFH) 2006/10/18, XI R 22/06).
5. In which cases are documents only with wet ink signatures accepted?
In case the electronic form in terms of sec. 126a BGB (i.e. QES) is explicitly prohibited by statute (cf. 126 (3) BGB).
Examples are terminations of employment (sec. 623 BGB), employment reference letter (sec. 630 BGB), declarations of surteyship (sec. 766 BGB), promise / acceptance of a debt (sec. 780, 781 BGB - Schuldversprechen and Schuldanerkenntnis). Another example is contracts on plots of land where a notarial record is required (sec. 311b (1) BGB).
6. List of the relevant national legislation
- EU eIDAS Regulation;
- Secs. 126, 126a BGB;
- Secs. 130a, 371a, 371b ZPO;
- Trust Services Act (Vertrauensdienstegesetz - VDG);
- Electronic Legal Transactions Ordinance (Elektronischer Rechtsverkehr-Verordnung - ERVV);
- Technical Guidelines No. 03125 and 03138 by the Federal Office for Information Security
7. Are the following use cases deemed as written legal statements / legal statements legally binding if the law requires written form in your jurisdiction?
1. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) and with a time stamp
2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp
3. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) and with a time stamp
4. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) without a time stamp
5. Electronic document signed with advanced biometric signature
6. Electronic document signed with a simple, standard electronic signature (SES)
7. Scanned electronic version of the original paper-based document with handwritten signature sent as an attachment in ordinary e-mail without an electronic signature, but with standard e-mail signature panel
8. Legal statement sent as a text of an ordinary e-mail without an electronic signature, but with a standard e-mail signature panel
9. Legal statement sent in an SMS
10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail
11. Electronic document with the typed name of the signer and sent as an e-mail attachment
12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.)
13. Electronic legal statement sent in a chat application
14. Electronic document created on an electronic platform ensured by the other party requesting the legal statement (without an electronic signature) by another party whom the operator of the platform granted access
15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES)
16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation
17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements")