Germany

In Germany, the legal framework surrounding eSignatures is primarily regulated by two primary laws: the eIDAS Regulation (Electronic Identification, Authentication, and Trust Services Regulation) and the German Civil Code (BGB). These laws set out the rules and requirements for electronic signatures’ validity, enforceability, and usage in different transactions.

Understanding E-Signature Laws in Germany

In Germany, the legality of eSignatures is supported by both EU regulations and national legislation, creating a robust legal framework for electronic transactions.

The EU Regulation, known as eIDAS (EU No 910/2014), governs electronic identification and trust services across the EU. Germany adheres to this regulation as a member state, establishing a unified legal structure for eSignatures throughout the EU. Under eIDAS, electronic signatures are recognized as legally valid within the EU. This regulation, which replaced the earlier Directive 1999/93/EC, categorizes electronic signatures into three levels: Simple, Advanced, and Qualified (QES), with QES holding the same legal standing as handwritten signatures.

To support the domestic implementation of eIDAS, Germany enacted the Trust Services Act (Vertrauensdienstegesetz—VDG) on July 29, 2017. The VDG facilitates the use of electronic trust services, including electronic signatures, within Germany’s legal framework.

Germany’s national regulations on form requirements are found in the German Civil Code (BGB), which outlines the conditions for different forms of documentation. The “Written Form” (Schriftform) traditionally applies to significant legal documents like mortgage assignments, rental contract cancellations, and assignment notifications. However, eSignatures that meet QES standards can substitute for this written form. Additionally, the “Text Form” (Textform) and “Agreed Form” (Vereinbarte Form) permit electronic signatures for specific declarations without the need for the formal written form, provided there are no statutory exceptions. The BGB generally allows written forms to be replaced by electronic forms, maintaining flexibility for digital transactions unless specified otherwise by law.

Documents that Require E-Signatures

In Germany, certain documents are legally permitted or even required to use electronic signatures, provided they meet specific standards. Here are key categories of documents that commonly require or allow e-signatures:

• Commercial Contracts and Agreements: Most commercial contracts, including purchase orders, non-disclosure agreements (NDAs), employment contracts, and vendor agreements, can be signed electronically. However, specific contracts, like real estate transactions or notarial deeds, may still require traditional notarization or qualified electronic signatures (QES).
• Consumer Contracts: Consumer agreements, such as subscription services, loan agreements, or terms and conditions, often use advanced electronic signatures (AES) or qualified electronic signatures (QES) to ensure validity and legal binding. In some cases, particularly with sensitive financial agreements, QES may be required.
• Insurance Documents: Insurance companies can use electronic signatures for documents like policy applications, renewals, and claim forms. The German insurance sector often employs QES for the highest legal recognition, especially for contracts or transactions involving large sums.
• Government and Public Sector Documents: Germany allows electronic signatures for various government and public sector forms, such as tax declarations, permit applications, and other administrative documents. These often require QES to verify identity and adhere to strict legal standards.
• Banking and Financial Documents: Banks and financial institutions frequently use electronic signatures for loan applications, credit agreements, and other banking contracts. Since these documents are sensitive, advanced or qualified e-signatures are commonly used to meet regulatory standards.
• HR and Employment Documents: Employment contracts, onboarding documents, employee handbooks, and leave applications can be signed electronically. QES may be recommended, particularly for employment contracts or termination agreements, as they involve binding obligations.
• Healthcare and Medical Documents: While Germany has specific data protection requirements for healthcare documents, e-signatures are increasingly used for patient consent forms, treatment records, and healthcare contracts. These may require AES or QES for enhanced security and compliance with German privacy laws.

Exceptions to E-Signature Use

There are exceptions where eSignatures are either restricted or not legally accepted due to the need for higher levels of formal verification, such as notarization or traditional handwritten signatures. Here are the key exceptions:

• Real Estate Transactions: Transactions involving the transfer of property ownership or the creation of mortgages require notarization in Germany. Such documents cannot be completed using eSignatures alone and must be formally notarized in person.
• Marriage and Divorce Agreements: Marriage contracts and divorce settlements require in-person notarization to confirm consent and legal intent. The legal framework prioritizes physical presence and personal validation, so these documents are not eligible for eSignatures.
• Inheritance and Wills: German law mandates that wills and inheritance-related documents be handwritten or notarized. Electronic signatures are not accepted for these documents due to the need for high levels of authentication and to reduce the risk of fraud or disputes.
• Notarial Deeds and Certifications: Documents that require a notary’s attestation, such as power of attorney documents, corporate deeds (e.g., company incorporations), and other formal certifications, must be executed in person with the notary’s presence and signature.
• Documents Requiring Handwritten Signatures by Law: Specific legal documents may mandate a handwritten signature by statute, regardless of the level of electronic security offered by eSignatures. Certain judicial documents and government filings fall under this category.
• Employment Termination Agreements: Although employment contracts can use Qualified Electronic Signatures (QES), termination agreements are generally required to be signed in person, with handwritten signatures, to ensure acknowledgment and acceptance by both parties.
• Family Law Documents: Besides marriage and divorce agreements, other family law documents—such as child custody agreements or adoption papers—often require traditional signatures and in-person verification to meet legal standards.
• Certain Court Filings and Legal Proceedings: While some aspects of legal proceedings can incorporate electronic filing, specific filings or submissions, especially those requiring court approvals, may still need traditional handwritten signatures to comply with legal protocol.

These exceptions underscore that while electronic signatures are broadly accepted in Germany, certain high-stakes or sensitive documents still require traditional, notarized, or handwritten signatures to provide an extra layer of verification and formality.

Seminal Case Law

AG Erfurt, 28 C 2354/01

FG Münster 11 K 990/05

Kammergericht Berlin, 12 U 34/7 30 August 2007

LG Konstanz, 2 0 141/01 A

OLG Köln, 19 U 16/02

XI ZB 40/06, NJW 2006

XI ZR 210/03, BGHZ 160, 308-321