Electronic & Digital Signatures in Germany

Legislation

Generally speaking, even though the usage of electronic signing is on the rise in Germany, it is still not very common. Moreover, digital signatures that carry digital certificates are also not frequently used for legal transactions, because of the costs and technical effort associated with this exercise. Even so, they are being used more frequently in the business arena.

In Germany, two key laws that regulate electronic signature usage are as follows: 

The Vertrauensdienstegesetz (VDG) or the German Trust Services Act

This implements the eIDAS Regulation and facilitates the use of electronic trust services in line with the eIDAS Regulation.

With Germany being a Member State of the European Union (EU), the provisions of both the EU Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 covering electronic identification and trust services for electronic transactions in the internal market (the eIDAS Regulation) govern and are directly applicable in Germany.

The eIDAS Regulation governs the usage of both electronic and digital signatures across the entire EU, including Germany.

In a bid to ensure that this regulation is enforced effectively, Germany adopted another law that implements eIDAS, namely its Trust Services Act (or Vertrauensdienstegesetz or VDG). This law was implemented on 29 July 2017 and aims to facilitate the usage of electronic trust services in Germany.

The Bürgerliches Gesetzbuch (BGB) or the German Civil Code

This, among other things, dictates when it is possible for the electronic form to replace the written form.

The majority of all relevant German national regulations exist in the German Civil Code or BGB. German law encompasses a number of provisions around form requirements, especially around the written form, which is required by the BGB for:

• canceling rental contracts 

• notifying an assignment of rights

• the assignment of rights 

• the assignment of rights that underlie a mortgage 

The German Civil Code carries various forms, which must contain specified types of declarations in order to be valid, such as: 

• written form 

• text form 

• agreed form

Further to this, the BGB also states that, unless the statute leads to a different outcome, the electronic form can replace the written form. The BGB doesn’t define electronic signatures independently of eIDAS. 

Considerations Regarding Electronic & Digital Signatures in Germany

In Germany, it may be required that certain types of contracts should be concluded either in the text form or in the written form. In line with the BGB, the former should be a legible declaration made on a durable medium. The person who is making the aforesaid declaration should also be named. 

However, if the written form is necessitated by the BGB, then the document should also be signed by the person who originally issued the document. This should include their name or their initials that have been notarized and certified. In the case that the law requires the written form to be used, the text form will not suffice and shouldn’t be used. 

The BGB holds a number of scenarios where a written form for certain contracts is required. The written form may be replaced by an electronic version, unless there is a prescription by a different statute to the contrary. That said, if the electronic form should replace the written form as it is noted in Section 126a, then the electronic form should remain in line with the following: 

1. The issuer of the declaration must add their name to the electronic form, providing the electronic document with a qualified electronic signature (QES).

2. In the case of a contract, the parties must each provide a counterpart signed with a QES.

In the case that there are no statutory requirements around the form type, then any type of electronic signature will suffice in concluding the contract, on the proviso that the involved parties agree to using the electronic form and no other intention is discernible.

When deciding which type of electronic signature to use, it’s important to consider that qualified electronic signatures hold higher evidentiary value than other forms of electronic signatures. In the case that a non-qualified electronic signature is used, it falls to the signee to demonstrate the integrity preservation of the document’s contents.

Electronic signatures aren’t commonly used in Germany and for this reason, local judges are not always familiar with the laws associated with them. Even so, on the basis of the law on the promotion of electronic legal transactions with the courts (‘Gesetz zur Förderung des elektronischen Rechtsverkehrs mit den Gerichten’), it is not uncommon for civil lawsuits to be filed electronically using the new infrastructure known as beA.

Documents that may be signed electronically in Germany

In general, contracts in Germany don’t have to be in any specific format in order to be valid. The exception to this is where the German law either directly or indirectly prohibits using electronic signatures or requires that the written form is used (which necessitates the use of a qualified electronic signature), then any non-qualified electronic signature can be used. 

The following types of documents or agreements usually do not carry a written form requirement under German legislation:  

• human resources (except with termination of employment relationships)

• procurement (except with conclusion of installment supply contracts)

• corporate resolutions

• NDAs

• software licensing

• healthcare

• banking

• real estate (except rental contracts, assumption of mortgage debt, and notification of assignment of a claim underlying a mortgage)

• lending (except notification of assignment of right by the creditor to the debtor and validity of a deed where the holder of the deed is promised a benefit)

• chattel paper

• insurance

• education

• life sciences

• technology sector

• documents to be recorded

• consumer transactions

• government filings

While most contracts only need a simple electronic signature, there are some restrictions to consider. Agreements that are typically related to real estate, notarized documentation, and marriage are exempt from the law. That said, the COVID-19 pandemic has forced many to partially or entirely move many of their administrative processes, including contract management, online. It is therefore likely that even restricted documents might eventually be permitted to be signed electronically.  

Documents considered valid with qualified electronic signatures (QES) in Germany

Documents that are considered valid with a qualified electronic signature in Germany are as follows: 

• temporary employment contracts of the German Act on Temporary Employment (AÜG)

• consumer loan agreements 

• shareholders’ resolutions of limited liability companies that aren’t registered with the commercial register

• non-disclosure agreements (Note: Depending on the individual case, the intended use and any agreement made by the parties)

• transfer of shares of a stock corporation (Note: It might be advisable to include an explicit reference to the QES in the purchase contract) 

• amendments to contracts that need the written form for amendments (Note: It might be advisable to include wording to the effect that the written form may be replaced by a QES) 

• receipts 

• powers of attorney (Note: Depending on the individual case, the intended use and any agreement made by the parties. If a power of attorney is presented, a revocation of such power of attorney may not be apparent for third parties. Therefore, the proper precautions should be taken.) 

• rental agreements for residential and commercial premises, termination of rental agreements, and lease agreements 

Documents that should only be signed with a wet signature in Germany 

The following documents are clearly excluded from being signed electronically by several regulations: 

• deeds

• any document requiring notarization

• termination of employment relationships

• issuing of life annuity promises to grant maintenance under family law

• issuing of guarantee declarations

• making abstract promises of debt

• making abstract acknowledgements of debt

• agreement under public law with local government per the Verwaltungsverfahrensgesetz (VwVfG) or German Administrative Procedure Act

Helpful Resources

• Allen & Overy: E-signing according to German law - Allen & Overy

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.