eSignature Legality in Sweden

E-Signature Legality Summary

Under Swedish law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Chapter 35 Section 1 of the Swedish Code of Judicial Procedure, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 27 member countries of the European Union.

Notable Changes in E-Signature Law Since 2020

None.

Types of Permitted Electronic Signature

The eIDAS Regulation is technology neutral and defines an electronic signature generally as  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. The eIDAS Regulation recognizes three forms of electronic signature - SES, AES, and QES. 

• An SES is a "simple electronic signature," a type of electronic signature that does not meet the definition requirements for higher levels of electronic signature, i.e., AES or QES. Thus, typing one´s name at the bottom of an email might constitute a simple electronic signature.

• An AES is an “advanced electronic signature,” a type of electronic signature that meets the following requirements: (i) is uniquely linked to the signatory; (ii) capable of identifying the signatory; (iii) is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and (iv) is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

• A QES is a "qualified electronic signature," a type of advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures. Sweden, as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In compliance with the EU Regulation 910/2014/EU, Sweden maintains a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.

Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances. 

Documents That May be Signed Electronically

Transactions where an SES is typically appropriate include:

• HR documents (except termination notices), such as regular employment contracts, non-disclosure agreements, employee invention agreements, privacy notices, benefits paperwork and other new employee onboarding processes

• Commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements

• Consumer agreements, including consumer credit agreements, new retail account opening documents, sales terms, services terms, software licenses, purchase orders, order confirmations, invoices, shipment documentation, user manuals and policies

• Residential and commercial lease agreements

• Software license agreements

• Licenses of intellectual property, including patent, copyright and trademark

• Intangible property transfers (e.g., patent and copyright assignments)

Transactions where an electronic signature other than SES may be required include:

• AES or QES - an annual report that is prepared in an electronic form (Pursuant to Ch. 2 Sec. 7 of the Annual Reports Act) (Sw. Årsredovisningslagen)

• AES or QES– a document which must be signed pursuant to the act may, unless otherwise stated (Pursuant to Ch. 1 Sec. 13 of the Companies Act) (Sw. Aktiebolagslagen)

• AES or QES - a certificate created in electronic form (Pursuant to Ch. 1 Sec. 5a of the Banking and Financing Business Regulation) (Sw. Förordning om bank- och finansieringsrörelse)

• AES – electronic offers if demanded by the procuring entity (Pursuant to Ch. 10 Sec. 3 of the Act on Procurement in the Defence and Security Sector) (Sw. Lag om upphandling på försvars- och säkerhetsområdet)

• AES - a record of revenues that is created electronically (Pursuant to Sec. 26 of the Act on Transparency in the Financing of Political Parties) (Sw. Lag om insyn i finansiering av partier)

• AES – electronic offers if demanded by the procuring entity (Pursuant to Ch. 9 Sec. 3 of the Act on Procurement within the Sectors Water, Energy, Transportation and Postal Services) (Sw. Lag om upphandling inom områdena vatten, energi, transporter och posttjänster)

• AES – electronic offers if demanded by the procuring entity (Pursuant to Ch. 12 Sec. 7 of the Act on Public Procurement) (Sw. Lag om offentlig upphandling)

• AES - a document which must be signed pursuant to the act may, unless otherwise stated (Pursuant to Ch. 1 Sec. 15 of the Act on Economic Associations (Sw. Lag om ekonomiska föreningar)

• AES or QES - a document which must be signed pursuant to the Auditing Act (Sec. 2a of the Auditing Act) (Sw. Revisionslag)

• AES or QES - a document which is required in order for the seller to apply to the Debt Enforcement Authority for repossession of goods (Pursuant to Sec. 43 of the Consumer Credit Act) (Sw. Konsumentkreditlagen)

• AES or QES - a document which must be signed pursuant to the Act on Membership Banks may, unless otherwise stated (Ch. 1 Sec. 7 of the Act on Membership Banks) (Sw. Lag om medlemsbanker)

• AES or QES – a document that must be signed pursuant to the Foundation Act (Ch. 1 Sec. 9 of the Foundation Act) (Sw. Stiftelselag)

• AES or QES - a document which must be signed pursuant to the Savings-bank Act, unless otherwise stated (Ch. 1 Sec. 4 of the Savings-bank Act) (Sw. Sparbankslag)

• AES or QES - a document which is required in order for the seller to apply to the Debt Enforcement Authority for repossession of goods (Pursuant to Sec. 11 of the Credit Sales Between Undertakings Act (Sw. Lag om avbetalningsköp mellan näringsidkare m.fl.)

• QES - contracts to purchase or transfer real property (Ch. 4 Sec. 1 Swedish Land Code) (Sw. Jordabalken)

• QES - contracts to purchase or transfer of owner occupied apartments (Ch. 6 Sec. 4 Tenant-Owner’s Rights Act) (Sw. Bostadsrättslag), note AES specifically excluded from application. Other deeds under the Tenant-Owner's Rights Act can be signed through AES unless otherwise specified, Ch. 1 Sec. 9. 

• QES - contracts to purchase of transfer site leasehold rights (Ch. 13 Sec. 7 Swedish Land Code)

• QES - summons applications in civil cases (Ch. 42 Sec. 2 Swedish Code of Judicial Procedure) (Sw. Rättegångsbalken)

• QES - certain contracts governed by family law, such as marriage contracts and cohabitant contract (Ch. 7 Sec. 3 Marriage Code (Sw. Äktenskapsbalken) and Sec. 9 Cohabitees Act (Sw. Sambolagen)

Further Guidance

The following transaction types are some of those that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (i.e., wet ink) signatures or formal notarial process, that are not usually compatible with electronic signatures:

• Handwritten - signing of share certificates (Ch. 6 Sec. 3 Companies Act)

• Handwritten - signing of issue certificates, convertible instruments issued in the form of debentures and warrant certificates (Ch. 11 Sec. 6 Companies Act)

• Paper or registered letter - employment termination notices must be delivered to the employee on paper or sent to the employee by registered letter.  However, the law does not specify which type of signature is required. Therefore, an electronic signature would generally be sufficient, as long as a physical copy of the notice of termination is delivered to the employee (Sec. 10, 20 and 38 Employment Protection Act (Sw. Lag om anställningsskydd))

• Handwritten/witness - testamentary documents (Ch. 10 Sec. 1 Inheritance Act (Sw. Ärvdabalken))

• Handwritten – certain corporate documents, including share certificates, issue certificates and convertible instruments in the form of debenture or warrant certificates (Companies Act) (Sw. Aktiebolagslagen)

It is worth noting that, even though the eIDAS regulation does equalize wet-ink signatures and QESs, this has yet to be tried in courts in Sweden and the exchangeability between a wet-ink signature and a QES is thus uncertain in practice. 

Enforcement Penalties for Non-Compliance

There are no stated penalties for non-compliance in the law. However, failing to comply may result in the electronically signed documents not being valid or not being enforced in the court and/or may result in penalties under the law applicable to the underlying transaction. Further, non-compliance may result in the document not being accepted as received by government bodies such as the Companies Registration Office (Sw. Bolagsverket) which may have further consequences depending on the document type in question (such as a company being delayed with applications and other deeds). 

Seminal Case Law

The Supreme Court in Sweden has touched upon the topic of electronic signatures in the case NJA 2021 s 1017, however the main and primary question in the case regarded whether the holder of an eID had granted a power of attorney by sharing the eID passcodes with another person, to which the Supreme Court answered yes. Further the Supreme Court considered the scope of such power of attorney and established in which instances third parties can and should be able to rely on electronic signatures utilizing eIDs (such as the Swedish BankID) as if they were signed by the holder of the eID . 

The Swedish lower courts have had some e-signing cases, mainly related to consumer loans and fraud allegations, where the courts use the burden of proof mechanism set out by the Supreme Court in the case NJA 2017 s 1105 where the Supreme Court ruled that it is the lender who must show that an alleged AES has been used. If so, the holder of the signature must make it likely that the use of the signature was unauthorized.

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• Regulation (EU) No 910/2014 

• Companies registration office information about utilization of e-signatures under the Companies Act