eSignature Legality in France

E-Signature Legality Summary

As France is one of the Member States of the European Union (“EU”), the provisions of the EU 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 (the eIDAS Regulation), govern and are directly applicable in France. The eIDAS Regulation repeals Directive 1999/93/EC. The eIDAS Regulation, in its Chapter 3 “Trust Services” and under Section 4 “Electronic Signatures,” governs the use of electronic and digital signatures in the whole EU, including France.

The eIDAS Regulation is supplemented by the French Civil Code, and, in particular, the Decree No 2017-1416 of 28 September 2017 on the electronic signature as well as sectorial provisions. Below are some additional sectoral provisions:

• Articles 1362, 1366, 1367,1369, and 1375 of the French Civil Code

• Article L. 110-3 of the French Commercial Code

• Decree 2009-834 of July 7, 2009, related to the creation of a service with national competence called the “National Agency for the Security of Information Systems”

• Ordinance No. 2016-131 of February 10, 2016, related to the contract law reform

• Ordinance of March 22, 2019, on the electronic signature of public procurement contracts

• Ordinance of November 20, 2020, on the electronic signature of jurisdictional decisions rendered in civil matters

Types of Permitted Electronic Signature

Under French law, the use and definitions of electronic signatures are governed by a combination of French law and the eIDAS Regulation.

Article 1367 of the French Civil Code defines both signature and electronic signature as follows:

• The signature necessary for a legal act to be valid identifies its author. It expresses its consent to obligations arising out of that act.  When affixed by a public officer, it gives authenticity to the act.

• When electronic, a signature consists of the use of a reliable identification process ensuring its link to the act to which it is attached. This process is deemed reliable, until proven the opposite, provided that the electronic signature is created, the identity of the signatory and integrity of the act ensured, within conditions set forth by decree. In France such presumption is only granted to the qualified electronic signature as detailed below.

The eIDAS Regulation makes a distinction between three types of electronic signatures: a simple “electronic signature,” an “advanced electronic signature” (AES), and a “qualified electronic signature” (QES).

A simple “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign (Article 3.10 eIDAS).

An “advanced electronic signature” is an electronic signature that meets some additional requirements so that a higher level of trustworthiness can be met (Article 3.11 and 26 eIDAS).

A “qualified electronic signature” or “digital” signature means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified digital certificate for electronic signatures (Article 3.12 eIDAS). This certificate must be issued by a trust service provider that is on a trusted list of qualified trust service providers of an EU member state and the qualified electronic signature creation device must be certified by an EU member state. A “qualified electronic signature” is the only electronic signature level to have special legal status in EU member states, being legally recognized as the equivalent of a written signature (Article 25.2 eIDAS).

Documents That May be Signed Electronically

French contract law does not generally require contracts to be in written form and/or signed, and the choice of the type of signature is mostly a question of proof. Contracts can be concluded either orally, by implicit action, or by any other means of expressing the parties' intent. However, certain types of agreements must be in writing to be valid. Where no specific form is required, any type of electronic signature is permissible provided it is “reliable.”

To be reliable under the French Civil Code, an electronic signature must comply with Article 1366 and 1367 by demonstrating that:

• The signature is uniquely linked to and identifies the person from whom it originates in a reliable manner; and

• The signed document must be stored in conditions which will guarantee its integrity.

Under French law, only a QES has the equivalent legal effect of a handwritten signature and benefits from the presumption of fulfilling the above reliability criteria. Non-qualified electronic signatures such as an SES or an AEs “only” benefit from the non-discrimination clause whereby the legal effect and admissibility of an electronic signature should not be refused as evidence in court solely because it is in electronic form or because it does not meet the requirements of a qualified electronic signature.

A specific form, in particular the written form, is only required where expressly and specifically prescribed by either (mandatory) law or by a pre-existing contractual provision between the parties.

Electronic signatures may also be used in electronic exchanges between users and administrative authorities pursuant to Article L212-3 of the Code of Relations between the Public and the Administration.

Further Guidance

In the eIDAS Regulation and under French law, no general distinction is clearly made between using electronic signatures in the context of natural persons, companies, or governmental entities. Generally, the choice of an SES or AES will depend on the importance and sensibility of the document/agreement at stake. However, in practice an AES is often required for matters of government administration.

For some acts linked to the French administration an AES or a QES is required, such as:

• Public procurements

• Medical files, including health medical data

• Decisions by judicial and commercial courts

A QES is required for the validity certain agreements in certain regulated business activities, such as those involving notaries, lawyers, banking institutions, and bailiffs, and where the evidentiary nature of the signature is of particular importance.

Seminal Court Cases

None.