Key points to remember about qualified electronic signatures
- The eIDAS Regulation distinguishes between three levels of electronic signature: simple, advanced and qualified.
- Only a qualified electronic signature benefits from a presumption of reliability.
- Where a qualified signature is challenged, the burden of proof rests on the party disputing the signature.
- For a simple or advanced signature, the party relying on the document must demonstrate the reliability of the signature process if it is contested.
- The choice of signature level should depend on the legal significance of the document, the status of the parties and the risk of future disputes.
- Qualified timestamping and electronic seals can strengthen the evidential value of the signature file.
I. The difference in evidential treatment between electronic signature processes
A. The three levels of electronic signature under the eIDAS Regulation
Article 1367 of the French Civil Code provides that: “An electronic document has the same evidential value as a paper document, provided that the person from whom it originates can be duly identified and that it is created and preserved under conditions capable of guaranteeing its integrity.”
Regulation (EU) No 910/2014 of 23 July 2014 (the eIDAS Regulation) governs electronic identification and trust services for electronic transactions within the internal market. It was modernised by eIDAS 2.0, adopted on 11 April 2024.
The Regulation establishes three legally recognised levels of electronic signature: simple, advanced and qualified.
Simple electronic signature
A simple electronic signature encompasses all electronic signature methods that do not satisfy the requirements applicable to either an advanced or a qualified electronic signature.
Advanced electronic signature
An advanced electronic signature is a secure process that guarantees the identity of the signatory and the integrity of the document. It is based on four fundamental requirements: a unique link to the signatory, formal identification of the signatory, the use of means under the signatory’s sole control, and the impossibility of modifying the document after signature.
Qualified electronic signature
A qualified electronic signature, which represents the highest level of assurance under the eIDAS framework, is distinguished by enhanced identity verification (typically through video identification or face-to-face verification) and the use of a certified secure signature creation device.
B. Only qualified signatures benefit from a presumption of reliability
As confirmed by the Cour de cassation in its judgment of 5 March 2026, the reliability of an electronic signature process is presumed, unless proven otherwise, where that process uses a qualified electronic signature.
The presumption of reliability attached to qualified signatures
Where a qualified electronic signature has been used, the party seeking to challenge the reliability of the signature must establish that it is fraudulent.
Conversely, where a simple or advanced electronic signature is used, and the signature is challenged by the person against whom the document is relied upon, the burden falls on the party relying on the document to prove that the signature is genuine.
The procedural implications are therefore significantly different.
The error identified by the Cour de cassation
In the case at issue, the Cour de cassation criticised the Court of Appeal for failing to determine the nature of the signature process before concluding that the signature should be treated as valid because the tenant had not established that it was fraudulent.
In essence, the Court of Appeal applied the presumption of reliability and placed the burden of proving fraud on the tenant without first verifying whether the signature process used was capable of benefiting from that presumption.
II. Adapting electronic signature processes through a risk-benefit approach
A. The significance of the transaction should guide the choice of signature process
The issue is particularly important under French law, where civil procedure places considerable emphasis on evidence. The benefit of a presumption can therefore provide a decisive advantage in litigation.
Ease of use, cost and integration with existing IT systems should not result in the level of certification being treated as a secondary consideration when selecting an electronic signature solution.
The choice should instead be guided by the importance of the agreement being executed, the nature of the contracting parties and the likelihood of future disputes, while keeping in mind the applicable evidential framework.
Assessing the risk of challenge according to the status of the parties
Where both parties are commercial entities, and therefore benefit in most cases from a relatively flexible evidential framework, the use of a qualified signature may be less significant than where the counterparty is an individual signing a document exceeding €1,500 in value, which under Article 1359 of the French Civil Code generally requires written evidence.
Reserving qualified signatures for the most exposed transactions
The solution is not, of course, to require qualified signatures for every transaction. Such an approach would create excessive administrative burdens and costs.
Instead, organisations should anticipate risk and develop a coherent internal policy.
This involves conducting an audit and mapping documents according to their legal significance, enabling qualified signatures to be reserved for agreements most likely to be challenged, while documenting the rationale for selecting other signature levels where appropriate.
B. Strengthening evidential value through qualified timestamping
Paradoxically, electronic signatures can sometimes lead courts to apply a greater level of scrutiny than they would to a handwritten signature.
The technical evidence file as a key factor in judicial assessment
The evidential value of a qualified electronic signature may be disregarded by the courts where the associated technical evidence file is incomplete or deficient.
Some courts have demonstrated a willingness to examine the technical construction of the evidence file in considerable detail when assessing its reliability.[1]
The role of qualified timestamping in the evidential file
Qualified timestamping is one of the tangible elements that may be taken into account by a court when assessing the evidential reliability of an electronic signature file.
Defined in Articles 41 and 42 of the eIDAS Regulation, qualified timestamping associates a legally recognised date and time with a digital file, ensuring recognition throughout the European Union.
The benefits of a controlled evidential process
Organisations may even develop proprietary electronic systems designed to control integration with specific IT processes or to manage the user experience more closely, thereby further strengthening evidential value.
For example, the addition of a qualified timestamp token issued by a Qualified Trust Service Provider (QTSP) may provide an effective means of achieving a high evidential standard.
Similarly, adding an electronic seal to the evidential file, with the aim of sealing technical records and guaranteeing their authenticity, can further strengthen the admissibility and reliability of electronic signatures.
Conclusion: developing an electronic signature policy aligned with evidential risk
In conclusion, organisations should establish a coherent electronic signature policy that aligns the choice of signature solution with the actual evidential risk involved. Associating the selected solution with qualified timestamping also represents a recommended practice.
These measures can help avoid discovering, at a later stage, that the organisation is unable to rely on the presumption of reliability that accompanies a qualified electronic signature.
References
[1] CA Rouen, n°24/01774, 10/04/2025 ; CA Paris, n°23/19316, 03/04/2025 ; CA Douai, n°22/05040 & n°22/05041, 27/03/2025.
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