eSignature Legality in The Netherlands

E-Signature Legality Summary

As the Netherlands 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 the Netherlands. The eIDAS Regulation repeals Directive 1999/93/EC.

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 the Netherlands.

The eIDAS Regulation is implemented into section 3:15a of the Dutch Civil Code (“DCC”).

Types of Electronic Signature

eIDAS makes a distinction between three types of electronic signatures: a general 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 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).

Dutch law is completely aligned with the eIDAS since it is a Regulation and does not maintain further definitions.

Documents That May be Signed Electronically

Only for a small number of agreements, or for some specific deviations from the provisions of the Dutch Civil Code (“DCC”), does the DCC require a “written agreement.”

6:227 DCC requires that if the document be in writing, it can be electronic if the following criteria are met:

• It is consultable by parties;

• The authenticity of the agreement is sufficiently guaranteed;

• The time of conclusion of the agreement can be determined with sufficient certainty; and

• The identity of the parties can be established with sufficient certainty.

Dutch contract law does not require written agreements to be signed, generally mere “consent” constitutes a valid agreement. In all situations where a signature is required or desired, such signature may be provided in electronic form.

Further Guidance

For transactions that are “complex,” greater reliability and security is required and thus, an AES or QES electronic signature may be more appropriate. Dutch law does not define “complex,” therefore, it is not clear in general terms whether a transaction is simple or more complex. Parliamentary history shows that the economic value and nature of the transaction play a role in this.

Specific prohibitions may apply in relation to documents that have execution requirements such as notarial deeds, powers of attorney for the execution of the notarial deeds, oaths, affirmations, affidavits, statutory declarations, or other enduring documents. Additional considerations may also apply in finance and real estate transactions.

Documents with QES normally constitute binding evidence in court, whereas the court may grant such value to other documents (signed electronically or not signed at all) as it desires. For documents signed with a simple electronic signature or AES (other than QES), the Dutch Supreme Court confirmed that the benchmark is that the signature must be ‘sufficiently reliable’ for the document to be classified as binding evidence. Often evidence establishing the identity of a signer, audit trail of the transaction and the tamper-evident nature of the document and electronic signature help the parties meet the sufficiently reliable standard.

Case Law

The following three cases are examples of where Dutch courts have addressed the use of electronic signatures:

• Dutch Supreme Court, 14 June 2019, ECLI:NL:HR:2019:957 (3.1.7, 3.1.8, 2.1.9);

• Court The Hague, 8 May 2018, ECLI:NL:RBDHA:2018:6370; and

• Court Zeeland-West-Brabant, 07-10-2020, ECLI:NL:RBZWB:2020:4817.