Electronic Signature Act

Since May 21, 2003, Dutch legislation on electronic signatures has been laid down in Article 3:15a of the Civil Code, as far as the public sector is concerned in Article 2:16 of the General Administrative Law Act.

As of July 1, 2016, the new Regulation 910/2014 applies, from this date the changes resulting from this new European regulation have been implemented in the relevant places in Dutch law, especially (but not only) in the aforementioned articles.

In addition, case law also plays an important role in practice. The question is often which type of digital signature should be used. For example, in the context of an employment contract, where the text of the law contains a written form requirement. Meanwhile, the court has interpreted this requirement in such a way that written form is also fulfilled in the case of an (advanced) digital signature, provided it is applied correctly. The same applies in the public sector, for example, to court rulings where an advanced signature may also be used.

Article 3:15a of the Civil Code lays down the following requirements for an electronic signature, whereby paragraphs 2e and 2f only apply unconditionally to qualified electronic signatures.

• 2a. it is uniquely linked to the signatory
• 2b. it allows for the identification of the signatory
• 2c. it is achieved by means that the signatory can maintain under its sole control
• 2d. it is linked to the electronic file to which it relates in such a way that any subsequent change of the data is detectable
• 2e. it is based on a qualified certificate as referred to in Article 1.1, part ss, of the Telecommunications Act (Article 1.1, part ss, of the Telecommunications Act states: 'certificate: electronic confirmation which links data for the verification of an electronic signature with a certain person and confirms the identity of this person')
• 2f. it is generated by a secure electronic signature-creation device as referred to in Article 1.1, part vv, of the Telecommunications Act (Article 1.1, part vv, of the Telecommunications Act states: 'electronic signature-creation device: configured software or hardware used to implement the electronic signature-creation data').