Switzerland: legal requirements and validity of electronic signatures

This article explores the legal landscape of electronic signatures in Switzerland, addressing key questions regarding their legality, binding status, usage and the conditions under which they are valid.

Main laws governing electronic signatures in Switzerland

The legality of electronic signatures in Switzerland is primarily governed by:

1. The Federal Act on Electronic Signatures (ZertES)
2. The Swiss Code of Obligations (CO)

These laws establish the framework for the use and recognition of electronic signatures in various contexts. You can find the full text of the CO here, and ZertES here. 

The Federal Act on Electronic Signatures (ZertES) provides the legal framework for the recognition of electronic signatures as legally equivalent to handwritten signatures under certain conditions. The Swiss Code of Obligations complements the ZertES by addressing the use of electronic signatures in contracts and other legal documents.

Key provisions of these laws include:

• Defining different types of electronic signatures.
• Establishing requirements for qualified electronic signatures.
• Outlining the responsibilities of certification service providers.

The law recognises three types of electronic signatures:

1. Simple electronic signature (SES): The most basic form, suitable for low-risk transactions but not legally equivalent to a handwritten signature. 
2. Advanced electronic signature (AES): Offers a higher level of security, ensuring the signature is uniquely linked to the signer and is capable of identifying the signer.
3. Qualified electronic signature (QES): This is the most secure type, meeting stringent requirements such as being created by a qualified electronic signature creation device and based on a qualified certificate issued by a recognised certification service provider (CSP). Under ZertES, only QES is legally considered equivalent to a handwritten signature.

Relevant standards and conditions for legally binding electronic signatures in Switzerland

For an electronic signature to be legally binding in Switzerland, certain standards and conditions must be met:

1. Intent to sign: The signatory must have the intention to sign the document electronically.
2. Consent: All parties involved must agree to use electronic signatures.
3. Identification and uniqueness: The signatory must be uniquely identifiable and the signature must be uniquely linked to the signatory. 
4. Control: The method used to create the electronic signature must be under the sole control of the signatory.
5. Integrity: The document’s content must remain unchanged after signing. Any alterations must be detectable, ensuring the integrity of the signed document.
6. Reliability: The method used for signing must be sufficiently reliable, considering the purpose and circumstances.
7. Association with the document: The electronic signature must be logically associated with the document.

Qualified signatures must meet the following additional requirements to be legally binding:

8. Qualified certificate: The electronic signature must be based on a qualified certificate issued by a certification service provider (CSP) recognised under ZertES.
9. Qualified signature creation device: The signature must be created using a device that meets the standards set out by ZertES, ensuring the signature is uniquely linked to the signatory. Additionally, the signatory must be authenticated using a secure method that complies with ZertES requirements.

These requirements ensure that the qualified electronic signature is considered legally binding and equivalent to a traditional “wet ink” signature in most legal contexts.

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Circumstances where an electronic signature may not be valid in Switzerland

While electronic signatures are widely accepted in Switzerland, there are certain circumstances where they may not be considered valid or legally binding. These include:

1. Wills and inheritance documents: Swiss law typically requires handwritten signatures for wills and other inheritance-related documents.
2. Real estate transactions: Contracts involving the transfer of real estate often require a notarized handwritten signature.
3. Government procedures: Certain official government forms or procedures may require traditional signatures.
4. Lack of consent: If the signatory did not consent to the use of an electronic signature, the signature may not be considered valid. 
5. Technical failures: If the electronic signature system fails to meet the required security standards, the signature may be deemed invalid.
6. Document alteration: Any changes made to the signed document after the signature is applied may invalidate the signature, as it compromises the document's integrity.
7. Non-compliance with legal standards: Failure to comply with legal requirements may lead to the signature being deemed invalid.
8. Absence of a qualified certificate: For qualified electronic signatures, the absence of a qualified certificate from a recognised service provider can invalidate the signature.
9. Use of insecure devices: If the signature is created using insecure devices, it may not meet the security standards required for legal recognition.

Recent court decisions on electronic signatures in Switzerland

Switzerland's courts have upheld the legality of electronic signatures in several cases, provided they meet the standards set out in ZertES. Notably, in case 5A_503/2019, the Swiss Federal Court considered the validity of an electronically submitted appeal brief and held that the electronic signature did not meet the necessary requirements for a qualified electronic signature under ZertES. As a result, the court ruled that the electronic submission was invalid. You can read the full judgement here.

This ruling reinforced the legal standing of electronic signatures in Switzerland, demonstrating that the courts are willing to uphold their validity as long as they comply with the relevant standards.

Forthcoming legislation on electronic signatures in Switzerland

As of now, there are no major legislative changes expected in Switzerland that would significantly alter the current legal framework for electronic signatures. However, the Swiss government continues to monitor developments in digital technology and may introduce updates to existing laws as needed. Ongoing technological advancements and the increasing adoption of electronic signatures may prompt future updates to the law to address emerging challenges and ensure continued security and trust in electronic transactions.

Industry-specific standards for electronic signatures in Switzerland

While the ZertES provides a general framework for electronic signatures, some industries in Switzerland have adopted specific standards:

1. Financial services: Financial institutions often require advanced or qualified electronic signatures, particularly for high-value transactions and regulatory compliance.
2. Healthcare: Electronic signatures in healthcare must comply with data protection regulations and may require additional security measures in order to protect sensitive information.
3. Government contracts: Government contracts and public procurement processes may also require qualified electronic signatures to ensure the highest level of security and legal validity. 
4. Real estate: While many real estate transactions still require handwritten signatures, there is a growing acceptance of electronic signatures for certain documents.

These industry-specific standards ensure that electronic signatures are used appropriately and securely, depending on the nature of the transaction.

Adoption of electronic signatures in Switzerland

Electronic signatures are widely adopted across various sectors in Switzerland, driven by the need for efficiency, especially in industries like banking, real estate, and legal services. Many Swiss companies have integrated electronic signatures into their business processes, using them extensively for contracts, agreements, and other formal documents.

The COVID-19 pandemic further accelerated the adoption of electronic signatures as businesses sought remote solutions for signing and executing documents. The widespread use of electronic signatures in Switzerland is a testament to the trust and reliability of the technology, supported by a robust legal framework. Key factors contributing to this widespread adoption include:

• Efficiency: Electronic signatures streamline business processes and reduce paperwork.
• Cost-effectiveness: They eliminate the need for printing, mailing, and storing physical documents.
• Environmental considerations: Many companies view electronic signatures as a more sustainable option.
• COVID-19 pandemic: The shift to remote work has accelerated the adoption of digital solutions, including electronic signatures.

Leading providers of electronic signatures in Switzerland

Several companies provide electronic signature solutions in Switzerland. These providers offer various services, ranging from simple electronic signatures to qualified electronic signatures that comply with ZertES standards. Some of the leading providers include:

1. DocuSign: A global leader in electronic signature solutions.
2. Juro: A popular contract automation platform known for its user-friendly interface and robust security features, Juro is a top choice for many businesses.
3. Adobe Sign: Part of the Adobe Document Cloud suite.
4. Yousign: A European electronic signature solution.
5. HelloSign: A Dropbox company providing electronic signature solutions.
6. SignNow: Offers a user-friendly platform for electronic signatures. 
7. SignRequest: Offers simple electronic signature solutions. 

These providers offer a range of solutions to meet the diverse needs of Swiss businesses, and compliance requirements.

FAQ: common questions about electronic signatures in Switzerland

Are electronic signatures legally binding in Switzerland?

Yes, electronic signatures are legally binding in Switzerland, provided they meet the requirements set out in the Federal Act on Electronic Signatures (ZertES) and the Swiss Code of Obligations. 

What types of electronic signatures are recognised in Switzerland?

Switzerland recognises three types of electronic signatures: qualified electronic signatures (QES), advanced electronic signatures (AES), and simple electronic signatures (SES).

Is a qualified electronic signature equivalent to a handwritten signature?

Yes, a qualified electronic signature has the same legal status as a handwritten signature in Switzerland.

Can I use an electronic signature for all types of documents?

While electronic signatures are widely accepted, some documents (like wills or certain real estate transactions) may still require handwritten signatures.

Do I need special software to create a legally valid electronic signature?

For simple electronic signatures, you may not need special software. However, for qualified or advanced electronic signatures, you'll need to use a certified provider's solution.

Are electronic signatures secure?

When implemented correctly, electronic signatures can be very secure. Qualified and advanced electronic signatures, in particular, use robust encryption and authentication methods.

Can foreign electronic signatures be used in Switzerland?

Yes, Switzerland recognises electronic signatures from other countries, particularly those from the European Union, as long as they meet equivalent standards.

Is there any upcoming legislation that will change the current electronic signature laws in Switzerland?

Currently, there are no major legislative changes expected. However, ongoing technological advancements may lead to updates in the future.

Are there industry-specific requirements for electronic signatures in Switzerland?

Yes, certain industries such as financial services and healthcare may have specific requirements for electronic signatures to ensure security and compliance.

How can I choose the right electronic signature provider in Switzerland?

Consider factors such as security features, ease of use, compliance with industry standards, integration capabilities, and customer support when choosing an electronic signature provider.

Who are the leading providers of electronic signature solutions in Switzerland?

Leading providers include Juro, DocuSign, and Adobe Sign, among others. Each offers various features tailored to the needs of different industries.

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Electronic signatures have gained significant legal recognition and widespread adoption in Switzerland. With a clear legal framework and increasing acceptance across industries, electronic signatures are becoming an integral part of business and legal transactions in the country. As technology continues to evolve, it's likely that the use and importance of electronic signatures in Switzerland will only grow.

Juro is not a law firm and this article should not be relied on as legal advice.