Electronic signature: overview of the 2024 case law
A rather favorable reception of the electronic signature
Judges are rather favorable to the electronic signature in appeal, but their motivations in fact vary greatly from one jurisdiction to another. For some, the subject is addressed in a succinct way and the simple production of the evidence file is enough to convince them of the validity of the signature. For others, motivations are more fleshed out but most of the time they are ill-founded. Very often, confusion is made with the qualified electronic signature presumed to be reliable, which is currently not used in B to C relationships. We believe that this misunderstanding stems from the distortion between law and practice. In law, the presumed reliable signature of Art. 1367 Al.2 of the Civil Code is the qualified signature of the eIDAS Regulation, composed of two elements: a qualified electronic signature certificate and a qualified electronic signature creation device, whose specifications set by the eIDAS Regulation are purely functional and do not refer to any standard or technical specification. In practice, it is based on compliance with precise standards that the quality of qualified service is granted. Knowledge of these standards is of paramount importance, but it is difficult to access for the lawyer unfamiliar with the field.
This confusion is nevertheless worrying because one may wonder how judges will react when it is a "real" qualified signature that has been implemented by the professional, in the hope of an undisputed judicial recognition of his electronic signature which will not occur since the judges already think that they are dealing with qualified signatures...
Some rejections
In some cases, the judge rejects the electronic signature of the deed, and this is most of the time the direct consequence of a poor presentation of the process by the professional. But it is sometimes also for legitimate reasons: obvious cases of identity theft, or manifest failure to identify the signatories, for example.
A stabilization of what judges expect
What is expected by the judges in support of the demonstration of the reliability of the electronic signature process is now classic: the evidence file (“Fichier de preuve”) associated with the signed contract, any omission in this regard being sanctioned. The file must be legible, significant of the operation, and include a common reference with the signed document because the judges see in it the "link" mentioned in Art. 1367 (2) of the Civil Code; the certificates of compliance to standards applicable to the process implemented; documents attesting to the identification of the signatory; and, if possible, a generic explanatory guide to the process implemented. And the production of extrinsic elements tending to corroborate the signing of the deed is a significant security if the judge is not convinced by the rest.
See our full article : « Signature électronique – panorama de jurisprudence 2024 » in EXPERTISES Janvier 2025, p.16
