Overview of electronic signature law and its legality in The Netherlands
Electronic signatures have been legally recognized in The Netherlands since 2003. These regulations were standardized across Europe in 2016 with the passing of eIDAS Regulation (Electronic Identification and Authentication and Trust Services).
Understanding The Netherland’s legal model
Civil Law systems
The Netherlands operates under a Civil Law system, which is a comprehensive system that is easily accessible to all citizens. Civil Law systems are based on a written constitution that supports certain rights and duties. Roughly 60% of the world’s legal systems are Civil Law systems.
An overview of Civil Law systems:
- An orderly system favoring cooperation and order.
- Originates from Roman law.
- The system is adaptable and avoids excessive detail.
- Legislative action is the only binding legal action.
- There is room available for the judiciary to adjust certain rules as seen fit.
The electronic signature law in The Netherlands
Electronic signature legality
According to Dutch law, contracts are valid if both legal parties can come to an agreement. This is true whether the agreement is verbal, written, or electronically produced. Specifically, Article 3:15a Dutch civil code states that contracts cannot be denied because they are agreed to electronically.
To prove that a contract is valid, both parties must appear in court and present evidence to make their case. This can be difficult with verbal agreements and electronic agreements that were produced over email. Electronic signature solutions can be used to sign electronic records and are admissible in court due to Article 152(1) Dutch Civil Procedure Act.
The eIDAS Regulation
The eIDAS Regulation took effect on July 1, 2016. This established a consistent legal framework across the entire European Union regarding electronic signatures.
This regulation defines three different types of electronic signatures:
- SES (Standard Electronic Signatures);
- AES (Advanced Electronic Signatures);
- QES (Qualified Electronic Signatures).
What is a QES?
A qualified electronic signature comes with a qualified certificate and is legally valid. Companies offering this must be listed as a Trusted Service Provider in the Netherlands. According to Article 25(2) and (3), a QES has the same legal effect as that of a handwritten signature.
However, according to Article 25(1) of the eIDAS Regulation, electronic signatures cannot be held inadmissible in court simply for failing to meet the guidelines of QES.
If a QES is legally recognized in one Member State of the EU it must be recognized in all Member States. Though Recital 49 allows national law to decide which type of electronic signature is required in any given circumstance.
Under what circumstances are eSignatures allowed?
Electronic signatures can be used in the following situations:
- Human Resources Documents – This includes employee paperwork and onboarding documents for new employees.
- Insurance Policies – This includes life insurance, health insurance, disability insurance, auto insurance, and any supplemental policies. A QES is required in this situation.
- Home Sales or Other Transactions – This includes the sale of a home or other real estate property. A leasing agreement would also qualify. A QES is required in this situation.
- Commercial Agreements – This includes non-disclosure agreements and sales agreements.
- Wills – A QES is required when signing a will or codicil.
Are there any exceptions?
Electronic signatures are not appropriate in certain situations and a handwritten signature can be required instead. This typically only applies to circumstances where notarization is required, such as property transfers and copyright or patent assignments.
Most businesses have a number of contracts they need to be signed throughout their workday. Electronic signature software streamlines this process by allowing you to collect these signatures within minutes. This allows you to automate your sales process and close deals faster.