Classification of Law
Luxembourg's legal system is a mixture of Roman civil law and Anglo-American common law systems. Civil law operates in areas such as family relations, property, succession, contract, and criminal law, while statutes and principles of common law origin are evident in such areas as constitutional law, procedure, corporations law, taxation, insurance, labour relations, banking and currency.
Civil law systems are based on concepts derived from old Roman law, distinguishable by their reliance on having a comprehensive set of rules and principles codified and easily accessible to both citizens and legal professionals. Codified laws are regularly revised to reflect the current environment, and have stronger emphasis in civil law countries than any precedent set by earlier court cases. Civil law countries cover more than 65% of world’s legal system, including the majority of continental Europe, Central and South America, the Middle East, Asia and Africa.
E-Signature Legality Summary
As Luxembourg 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 and repealing Directive 1999/93/EC, also known as the eIDAS Regulation, are directly applicable in Luxembourg. This 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 Luxembourg.
The Luxembourg law on electronic commerce of 14 August 2000 (the “E-Commerce Act”) transposed the EU Directive 2000/31/CE on E-commerce into Luxembourg law. It constitutes the core of the Luxembourg E-commerce framework and sets out the main rules governing, among other things, the use of electronic signatures, the activity of the providers of electronic signature solutions and their supervision.
Types of Electronic Signature
eIDAS 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” (AES) is an electronic signature that meets some additional requirements so that a higher level of trustworthiness can be met.
A “qualified electronic signature” (QES) 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 digital 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, namely, that it is legally recognized as the equivalent of a written signature (Article 25.2 eIDAS).
Article 1322-1 of the Civil Code provides the general definition of an electronic signature under Luxembourg law:
“The signature necessary for the perfection of a private deed shall identify the person who appends it and shall indicate his/her agreement with the content of the document.
It may be handwritten or electronic.
The electronic signature consists of a set of data, inseparably linked to the deed, which guarantees its integrity and satisfies the conditions laid down in the first paragraph of this article”
Documents That May be Signed Electronically
The following categories of transactions typically do not have specific formal statutory requirements under Luxembourg law requiring that a signature be used; therefore, any form of electronic signature that meets the definitions under eIDAS may be used:
- Corporate Resolutions (if the use of electronic signature is not restricted in the constitutional documents of the company)
- Software Licensing
- Life Sciences
- Chattel Paper
- Technology sector
- Consumer Transactions.
While the use of electronic or digital signatures is not prohibited for the following transaction types, caution should be exercised before using such signatures for the listed transactions:
- Electronic Filing of Documents with Certain Luxembourg Government Entities
- Documents to be Recorded
Under eIDAS, only a qualified electronic signature has the equivalent legal effect of a handwritten signature. Non-qualified electronic signatures “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.
In the event of a dispute, the probative value of electronic signatures is slightly different from what is provided for in the eIDAS Regulation. Indeed, in Luxembourg the probative value of electronic signatures may be summarized as follows:
- For a simple electronic signature, the burden of proof of authenticity will lie upon the party claiming the validity of the electronic signature.
- Contracts signed with a QES or an AES are presumed by Luxembourg law to be the equivalent of a contract with a handwritten signature and qualify as an original, unless a challenger provides evidence otherwise (Article 25 eIDAS Regulation, and Articles 1322-1 and 1322-2 of the Civil Code).
DISCLAIMER: The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so DocuSign cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a licensed attorney in your area.
Last updated: September 07, 2021