Electronic signatures: what are the good practices?

Regulated in the European Union and France for over 20 years (1), electronic signatures have recently taken on a special role within companies. In an increasingly connected world, where the need to increase efficiency and speed are essential to the smooth running of businesses, electronic signatures are an essential innovation.

Before exploring the main risks associated with the use of electronic signatures, it is essential to distinguish between electronic signatures and scanned handwritten signatures:

• Electronic signature: a signature affixed digitally by means of a reliable identification process guaranteeing its link with the document to which it is attached (3).

• Scanned handwritten signature: handwritten signature whose digital image is obtained after being scanned or directly drawn digitally on documents that allow this (e.g. PDF documents) and which, according to case law, does not make it possible to establish and prove the identity and consent of the signatory to the act in question.

In this regard, a ministerial proposal of July 1, 2014 stated that a scanned handwritten signature has “no legal value”(4)/

The question of the legal value of a scanned signature was raised with the social chamber of the French Supreme Court (Cour de cassation) concerning the signature of a fixed-term contract (CDD). In a ruling dated December 14, 2022, the Court reiterated that a scanned signature is not equivalent to an electronic signature.

However, this position needs to be qualified, as the court considered that “it was not disputed that the signature in question was that of the company’s manager and perfectly enabled its author to be identified”, and that “the opposition of the digitized handwritten signature of the company’s manager did not mean that there was no signature”(5).

Such an analysis had already been accepted for :

• Acts of constraint issued by a social security organization(6) ;
• Or an amendment to a company agreement (7).

As regards the digitized signature on a letter of dismissal, there is no reason to believe that the position to date is any different from that adopted by the French Supreme Court on December 14, 2022, given that the latter had ruled in 2006 that “the irregularity that may affect the dismissal procedure, relating to the digitized signature appearing on the letter of dismissal, cannot suffice to deprive the dismissal of cause” (8).

In other words, the irregularity relating to the digitized signature appearing on the letter of dismissal may affect the dismissal procedure and give rise to a penalty capped at one month’s salary (article L.1235-2 of the French Labor Code), but it cannot be sufficient to deprive the dismissal of real and serious cause.

Finally, in a recent ruling dated March 13, 2024, the Commercial Chamber of the French Supreme Court (9) reaffirmed that the process of scanning a signature is valid, but that it cannot be equated with an electronic signature, and therefore does not benefit from the presumption of reliability that the latter does.

As a result, electronic signatures make it possible to establish the identity and consent of the person signing, unlike scanned and/or digitally affixed handwritten signatures, whose probative value is lesser and more open to challenge. Nevertheless, this process must be used correctly.

Plan:

A. Time-stamping: a guarantee of integrity that must not be disavowed

B. Handwritten and electronic signatures: a useful marriage?

C. What is the probative value of the printed copy of the electronically signed document?

D. How do you store electronically signed documents?

E. The usefulness of initials in electronically signed deeds

Time-stamping is a technical process which consists of associating a date and time with an event (e.g. time of sending, consultation, signature). This process makes a document tamper-proof by guaranteeing its integrity and authenticity.

This timestamp is evidenced by an electronic certificate issued by a trusted third-party certification authority.

This technical process thus meets the requirements relating to the evidential value of electronic documents set out in article 1366 of the French Civil Code, which states that “electronic documents have the same evidential value as paper documents, provided that the person from whom they emanate can be duly identified and that they are drawn up and stored in conditions that guarantee their integrity“(10).

However, when it comes to electronic signatures, the parties do not physically meet around a table. As a result, it is common for the signatories to sign on different dates, or not to sign the document on the day it is sent, even though it bears a specific date.

Alister Avocats’ advice: In the case of electronic signatures, it is advisable to define a signature order and configure the envelope so that the date on the document is automatically affixed when the last, previously designated, signatory signs.

This practice ensures that the date on the document corresponds to the final time stamp.

As mentioned above, the electronic signature makes it possible to guarantee :

• the identity of the signatories,
• authenticity of their signature,
• a signature date,

and, more generally, the integrity and authenticity of the signed document.

Consequently, if these two signature methods are combined, the integrity and authenticity of handwritten signatures cannot be certified.

Alister Avocats’ advice: Handwritten and electronic signatures have distinct functions and legal frameworks. It is therefore not advisable to combine these two types of signature in the same document.

Article 1379 of the Civil Code provides that “a reliable copy has the same probative value as the original, but its reliability is left to the discretion of the judge. Nevertheless, an enforceable or authentic copy of an authentic writing is deemed reliable“(11).

The copy of the electronically signed document therefore needs to be reliable, which is particularly the case in the case of certification with a unique document identification number.

In practice, copies of documents with an “advanced” electronic signature are accepted as reliable and accepted by courts and authorities such as the Trade and Companies Register (RCS), the Centre for Business Formalities (CFE) or INPI.

Since the Finance Act of 2021, the tax authorities have also accepted the possibility of registering copies of private deeds where the original is dematerialised (Article 849 of the General Tax Code)(12).

The retention of electronically signed documents is a necessity in order to cover any litigation that may arise.

Some electronic signature service providers offer a system for archiving electronically signed documents for variable retention periods. However, these retention periods do not necessarily correspond to the statutory limitation periods.

Alister Avocats’ advice: when signing a document electronically, it is essential to retain :

• the electronically signed document in a standard format (such as PDF),
• the proof (or completion) certificate, which includes the identity of the signatures, the timestamp, traceability and integrity of the elements relating to the authenticity of the document.

The initials are a handwritten sign, usually consisting of the initials of the signatory’s first and last names or signature. It is affixed at the bottom of each page of the signed document or in the margin of handwritten amendments to a document.

This practice has two main functions:

• make sure that the signatory has not just signed the last page but has read the entire document;
• avoid adding or destroying intermediate pages after the deed has been signed.

To determine the usefulness of initials in electronically signed documents, a distinction must be made between two types of document:

• private-signature deeds: if a deed is signed electronically, a single downloadable copy acts as the original. As the entire document is certified, the integrity of the document as a whole is guaranteed and the need for initialling is eliminated.
• notarial deeds: initialling is required on pain of nullity (13) except for annex pages (14). However, with electronic signatures, this requirement has been lifted, as the electronic signature process itself prevents any substitution or addition (15).

Electronic signatures have become an essential tool for businesses. However, it is essential to be aware of good practice in order to make the most of this technology, while avoiding potential pitfalls.

Would you like advice on electronic signatures and how to implement them in your company? Our team in the Company and Contract Law department will be happy to assist you and answer any questions you may have.

1. Law no. 2000-230 of 13 March 2000 adapting the law of evidence to information technologies and relating to electronic signatures

2. https://www.francenum.gouv.fr/guides-et-conseils/pilotage-de-lentreprise/dematerialisation-des-documents/la-signature

3. Article 1367 of the Civil Code

4. Ministerial reply published in the OJ on 1 July 2014 in response to written question no. 12890 published in the OJ on 11 December 2012.

5. Court of Cassation, Social Division, 14 December 2022, Appeal No. 21-19.841

6. Court of Cassation, 2nd Civil Division, 12 May 2021, Appeal No. 20-10.826

7. Court of Cassation, Social Division, 5 January 2022, Appeal No. 20-17.113

8. Court of Cassation, Social Division, 17 May 2006, Appeal No. 04-46.706

9. Court of Cassation, Civil, Commercial Division, 13 March 2024, Appeal no. 22-16.487, Unpublished

10. Article 1366 of the Civil Code

11. Article 1379 of the Civil Code

12. Article 849 of the General Tax Code

13. Decree 71-941 of 26 November 1971, article 14

14. Court of Cassation, mixed chamber, 16 November 2007, appeal no. 03-14.409

15. Decree 71-941 of 26 November 1971, article 14