Electronic signature laws and validity in Germany

German eSignature laws are nuanced, but the country largely follows the EU's lead when it comes to confirming their validity.

You can read all about Germany's approach to eSignatures, and when they can be used, in this guide.

Are electronic signatures legal in Germany?

As a general rule, electronic signatures are accepted as legal and valid in Germany, meaning they carry the same weight as wet ink signatures in most scenarios. 

This validity is confirmed by European Union regulations and German national laws, which we’ll explore in more detail now. 

Which laws govern the use of eSignatures in Germany?

In short: there are a few main laws that govern the use of electronic signatures and support their validity: the EU’s eIDAS Regulation, the German Trust Services Act and the German Civil Code (BGB). 

The eIDAS Regulation

The eIDAS Regulation is the overarching EU law that standardizes electronic identification and trust services across EU member states, including Germany. 

It was created by the EU with the intention to harmonize the laws across the EU member states. By doing this, it ensures that electronic signatures from other EU countries are legally recognized in Germany, and vice versa. 

The regulation establishes three levels of electronic signatures that you’ll want to be aware of:

• Simple Electronic Signature (SES): The most basic form of electronic signature. It could be something as simple as typing your name at the end of an email, checking a box on a form, or signing on a digital device.
• Advanced Electronic Signature (AES): A more secure electronic signature. It's designed so that it is clearly connected to the person signing (i.e., the signer’s identity can be verified), and any changes to the signed document will be detectable.
• Qualified Electronic Signature (QES): The most secure and legally recognized type of electronic signature. It’s essentially the digital equivalent of a handwritten signature in most cases, and is often required for high-risk or highly regulated transactions, like real estate purchases, notarial acts, or government documents.

German Trust Services Act

The German Trust Services Act (Vertrauensdienstegesetz) is a national law that transposes the eIDAS Regulation into German law and governs the application of electronic signatures and trust services within the country.

It does not introduce new or conflicting categories of electronic signatures (SES, AES, QES), as these are already established by eIDAS, but it ensures that the rules are applied properly across Germany’s trust service providers and users.

Specifically, the German Trust Services Act (VDG) provides more specific rules on how Qualified Trust Service Providers (QTSPs) in Germany must operate, following the guidelines set by eIDAS.

These providers are responsible for issuing Qualified Electronic Signatures (QES) and must adhere to strict security and operational standards.

German Civil Code (BGB)

The German Civil Code (Bürgerliches Gesetzbuch or BGB) outlines the requirements for the legality and validity of electronic signatures in contracts and legal transactions. 

While the eIDAS Regulation sets the general framework for electronic signatures in the EU, the BGB clarifies how electronic signatures can replace handwritten signatures in specific legal contexts within Germany.

Under this German law, most contracts can be concluded informally unless a specific form (such as a written form) is required by law. This means that Simple Electronic Signatures (SES) or Advanced Electronic Signatures (AES) will be sufficient for many contracts if both parties agree to use them.

But when German law does require a written form (Schriftform), the document must be signed personally with a handwritten signature, or, in some cases, a Qualified Electronic Signature (QES).

This is because a QES is the only type of electronic signature legally equivalent to a handwritten signature under the German Civil Code. These rules apply to a handful of contract types, so it’s best to check first.

Which contracts have stricter eSigning requirements or rules in Germany?

Under the German Civil Code, certain contracts in Germany require stricter form requirements and cannot be concluded without a handwritten signature or a QES:

• Real estate contracts: For property sales or mortgage agreements, German law requires notarization, which typically means that a QES must be used if an electronic signature is involved.
• Employment contracts: Some employment-related documents, like notices of termination, require a written form and, therefore, a handwritten signature or QES to be valid.
• Consumer loan agreements: According to the BGB, consumer loan agreements must also adhere to the written form requirement, which can be fulfilled by a QES.

“The termination of an employment relationship by notice of termination or termination agreement cannot be legally effective in electronic form - not even by means of a QES” - Osborne Clarke, Law Firm

What have German courts ruled on the use of electronic signatures?

While there is no extensive body of German case law specifically addressing the legality and validity of electronic signatures, some relevant rulings have emerged as German courts interpret the application of eIDAS, the German Civil Code (BGB), and other relevant statutes. 

These cases illustrate how courts enforce the use of electronic signatures, particularly Qualified Electronic Signatures (QES), in various legal contexts. The main takeaways are as follows: 

• Advanced and Simple Electronic Signatures (AES and SES): Courts have confirmed that these signatures are valid for contracts and documents that do not require the written form (Schriftform) as per BGB. They can be used in routine business agreements, provided there is no legal requirement for a formal signature.
• Qualified Electronic Signature (QES): German courts consistently uphold the QES as legally equivalent to a handwritten signature, making it mandatory for transactions that require the written form, such as employment contract terminations, real estate transactions, and notarial acts.
• Context matters: The legality of an eSignature largely depends on the specific legal context. If a written form is required by law, only a QES can fulfil this requirement. For more general contracts, SES or AES may suffice.

German case law on eSignatures

OLG München (Higher Regional Court of Munich), Case No. 19 U 771/17 (2017)

This particular case involved the validity of an electronic signature in a commercial contract.

• Key point: The court ruled that an Advanced Electronic Signature (AES) was valid in this instance because the contract did not require a written form under Section 126 of the BGB.
• Outcome: The decision affirmed that for contracts not subject to the strict written form requirement (Schriftform), an AES was legally sufficient.
• Implication: This case demonstrates the enforceability of an AES in general business contracts where no specific formal requirements exist.

LAG Berlin-Brandenburg (Regional Labor Court of Berlin-Brandenburg), Case No. 21 Sa 936/19 (2019)

The case dealt with a dispute over the termination of an employment contract and whether the termination notice, issued with a Simple Electronic Signature (SES), was valid.

• Key point: The court ruled that the termination of an employment contract must meet the written form requirement (Schriftform) as per Section 623 of the BGB, which cannot be fulfilled by an SES or even an AES.
• Outcome: Since the termination was made without a handwritten signature or a Qualified Electronic Signature (QES), the termination was deemed invalid.
• Implication: This case highlighted the need for a QES in specific legal scenarios like the termination of employment contracts, where a written form is required by law.

BGH (Federal Court of Justice), Case No. V ZB 103/18 (2018)

This case involved a legal dispute over the validity of electronic submissions in real estate transactions, particularly around the notarization of certain documents using digital signatures.

• Key point: The court reaffirmed that real estate transactions in Germany generally require notarization and a written form, which can only be replaced by a QES under Section 126a of the BGB.
• Outcome: The court upheld that unless a QES is used, electronic signatures do not meet the requirements for property transactions, thus voiding any electronically signed submissions.
• Implication: The decision reinforces that QES is mandatory for high-stakes legal transactions like property sales and notarial acts in Germany.

OLG Dresden (Higher Regional Court of Dresden), Case No. 6 U 275/20 (2020)

The case involved a dispute over the validity of a power of attorney that was signed electronically using a Qualified Electronic Signature (QES).

• Key point: The court confirmed that a QES has the same legal standing as a handwritten signature and fulfills the formal written requirement under Section 126 of the BGB.
• Outcome: The court ruled in favor of the validity of the electronically signed power of attorney, as it met all legal requirements.
• Implication: This case clearly demonstrates that a QES is fully recognized and legally binding for documents requiring written form under German law.

FAQs

Can electronic signatures replace handwritten signatures in Germany?

Yes, electronic signatures can replace handwritten signatures, but only if they meet the legal requirements. In cases where a handwritten signature is required by law, only a QES can fully replace it. For less formal agreements, SES or AES may be sufficient.

Are electronic signatures enforceable in German courts?

Yes. Electronic signatures are enforceable in German courts if they meet the applicable legal requirements. Qualified Electronic Signatures (QES) are presumed to be legally equivalent to handwritten signatures and are fully enforceable. However, the enforceability of SES and AES depends on the circumstances and the specific contract requirements.

Do all contracts in Germany require a Qualified Electronic Signature (QES)?

No. Not all contracts require a QES. A QES is only required for contracts that legally require a written form, such as property sales, employment terminations, or loan agreements. For everyday contracts like service agreements or sales contracts, SES or AES may suffice if both parties agree.

What is a Qualified Trust Service Provider (QTSP)?

A Qualified Trust Service Provider (QTSP) is a certified organization that issues Qualified Electronic Signatures (QES) in compliance with eIDAS. These providers ensure the security and validity of the signatures they issue. In Germany, QTSPs are supervised by the Federal Network Agency (Bundesnetzagentur).

Can a Simple Electronic Signature (SES) be used for legally binding contracts in Germany?

Yes, a Simple Electronic Signature (SES) can be used for legally binding contracts in Germany, provided the contract does not require a written form by law. SES is suitable for low-risk transactions or informal agreements but may not hold up well in legal disputes if identity or document integrity becomes an issue.

What happens if a required Qualified Electronic Signature (QES) is not used?

If a QES is required but not used (e.g., for real estate transactions or employment contract terminations), the document may be considered legally invalid or unenforceable in court. The use of a lower-level signature (SES or AES) in such cases does not meet the legal form requirements.

How can I ensure that an electronic signature is valid in Germany?

To ensure that an electronic signature is valid in Germany:

• Use a Qualified Electronic Signature (QES) if the transaction requires a written form under German law.
• Ensure the signature is issued by a Qualified Trust Service Provider (QTSP), which guarantees compliance with eIDAS.
• Confirm that both parties agree to the use of an electronic signature for lower-risk transactions where SES or AES may be appropriate.