The advent of digital technology has profoundly transformed many sectors, including construction. BIM, CAD, site monitoring software, information sharing platforms… the applications are numerous.

Among the most notable innovations, electronic signatures have become an increasingly popular tool, thanks to the efficiency and security they offer. This article aims to explain to professionals the various formats and subtleties of electronic signatures.

  1. The practical and legal definition of an electronic signature

Electronic signature is a process that enables a person to sign a document electronically. It involves the use of cryptographic techniques to guarantee the authenticity and integrity of the signed document. In practice, it can take various forms, such as entering a PIN code, biometric signature (such as fingerprint recognition), or the use of digital certificates to encrypt the signed document and authenticate the identity of the signatory. An electronic signature consists of a set of data, inseparably linked to the document, which guarantees its integrity and satisfies the conditions laid down in the first paragraph of this article.

Article 1322-1 of the Civil Code defines it as “a set of data, inseparably linked to the deed, which guarantees its integrity” and which “identifies the person who affixes it and manifests his agreement with the content of the deed.”

Article 1322-2 of the Civil Code states that “An electronic document signed under private seal is deemed to be an original when it shows reliable guarantees of the maintenance of its integrity from the moment when it was first created in its definitive form.”

  1. The digital revolution and the eIDAS Regulation

European Regulation No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market, commonly called the eIDAS Regulation, established the European legal framework for electronic signatures. The regulation differentiates between three types of electronic signatures: simple, advanced and qualified:

  • Simple Electronic Signature (SES) An SES is the lowest level of electronic signature. In practice, this type of electronic signature is often symbolized by a box or button on which the user can click to accept general conditions or validate an order, for example. It does not authenticate with certainty the identity of the signatory. Although it offers a degree of simplicity and speed, it does have its limitations. Its use is therefore suited to less sensitive documents, such as internal validation of certain documents.
  • Advanced Electronic Signature (AES) An AES offers an intermediate level of security through identification of the signatory. Unlike an SES, the AES requires the signatory to identify him or herself, notably by first submitting an identity document and entering a unique code transmitted to the signatory via sms or email. This signature is frequently used for contracts or documents requiring formal validation of the signatory’s identity.

However, the SES and AES do not have the same legal value as a handwritten signature. Thus, in the event of a dispute, a judge must examine them and determine whether there is sufficient evidence to recognize the document as validly signed.

  • Qualified Electronic Signature (QES) A QES offers the highest level of security and authenticity. Like the advanced electronic signature, authentication of the qualified electronic signature requires identification of the signatory but offers an additional level of security because this identification is carried out with human intervention organized by a “Qualified Trusted Service Provider”, or QTSP. Equivalent to a handwritten signature in terms of legal value, it is recommended for important documents such as major contracts between remote operators.
  1. Signature on PDF documents or through digitised means

A frequently asked question concerns the validity of a signature on a document subsequently digitised and transmitted in PDF format or added as an image to a PDF document. Although technically possible, this method may not offer the required level of security and authentication, particularly for important documents, and is not considered an electronic signature in the strict sense of the term. In reality, it can only be used as prima facie written evidence. Article 1341 of the Civil Code, which requires literal proof for any contract exceeding the value of 2,500 euros, is thus granted the exception provided under Article 1347 of the Civil Code where there is prima facie written evidence when, i.e. “any written deed emanating from the person against whom the claim is made, or from the person he represents, and which renders the alleged fact likely”. However, this situation will require additional proof.

Digitized signatures, i.e. images of the signature copied onto a Word or PDF document, are not recommended, as they create risks of misuse and problems of identification of the signatory.

It is therefore advisable to use an electronic signature instead.

  1. Identification of the type of signature used

It is essential to check the information provided by the service provider on its electronic signature offer in order to determine the level of security offered. First and foremost, you should refer to an ECSP and not to an unapproved service provider. If you receive a document from an external source, it is advisable to examine its properties, metadata and digital certificate to identify the provider and the authentication method. Some software packages also provide information on the level of signature when the document is opened, or by clicking on the signature.

  1. The Law of 7 July 2023 on Authentic Electronic Deeds

This law, which came into force last August, extends the use of qualified electronic signatures to all deeds and authentic instruments, with the exception of wills. However, this new alternative for notaries remains optional. It is therefore up to the notary to decide whether or not to offer the option of signing notarial deeds electronically.

  1. Conclusion

Proper understanding of the use of electronic signatures is crucial. Appropriate and compliant adoption can facilitate signature processes while guaranteeing the legal security of transactions.

Mario DI STEFANO, Managing Partner – Avocat à la Cour, DSM Avocats à la Cour.