Adopt the Electronic Signature in French Corporate Law
In France, it has been more than 20 years since the electronic signature was enshrined in Law No. 2000-230 of 13 March 2000 (Article 1367 of the French Civil Code), which defines it as "the use of a reliable identification process guaranteeing its link with the document to which it is attached".
In corporate law, this development was completed by the recent Decree No. 2019-1118 of 31 October 2019, which now allows commercial (and civil) companies to draw up or certify by electronic signature the minutes of the decisions of their shareholders and certain corporate bodies, as well as the digital keeping of the company registers in which the minutes are stored.
The COVID-19 epidemic provides an ideal opportunity to digitise corporate law documents, and to do so in a sustainable and secure way (see our previous Client Briefing in April related to the digitisation of corporate governance "from start to finish", including corporate books).
ELECTRONIC SIGNATURE IN CORPORATE LAW
|Corporate law reform: the Decree of 31 October 2019||
Until the end of 2019, the regulatory provisions of the French Commercial Code still required that the minutes of the decisions of shareholders and corporate bodies (and the registers on which they are stored) be drawn up on paper, except for the corporate form SAS for which the articles of association could provide that they be recorded and signed in electronic form.Decree No. 2019-1118 of 31 October 2019, which came into force on 4 November 2019, extends this possibility to the other commercial (and civil) companies by authorising the drawing up or certification by electronic signature of the minutes of the decisions of their shareholders and certain corporate bodies, as well as the digital keeping of the company registers in which the minutes are stored.
|The legal basis: the legislation on evidence||
Article 1367 of the French Civil Code defines the electronic signature as "the use of a reliable identification process guaranteeing its link with the document to which it is attached".
Article 1366 of the same Code establishes the principle that electronic documents have the same probative 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".Article 1367 of said Code establishes a presumption solely in favour of the so-called "qualified" electronic signature as defined below: " the reliability of an electronic signature process is presumed, until proven otherwise, where that process uses a qualified electronic signature".
|The different levels of security of electronic signatures||
The European Regulation No. 910/2014 of 23 July 2014, known as the eIDAS Regulation (the "eIDAS Regulation"), only deals with electronic signatures at the technical level by defining 3 levels of security, presented below. French legislation on evidence does however not recognize the first level, the "simple" electronic signature.
1) The so-called "simple" electronic signature
The term "electronic signature" generally means "data in electronic form which are attached to or logically associated with other data in electronic form".
In practice, an electronic signature is considered "simple" if it does not meet the conditions of security level 2 ("advanced") or 3 ("qualified") specifically provided for in the eIDAS Regulation (see below).
A "simple" electronic signature may be a simple scan of a handwritten signature or any other process offered by an electronic signature service provider whose requirements for the identification of the signatory and/or the integrity of the signed document do not meet the requirements for levels 2 and 3 as indicated below.
2) The so-called "advanced" electronic signature"
This level of security is based on the use of techniques verifying the signatory's identity, the security of the creation of the electronic signature (including time stamping), and the preservation of the integrity of the signed document.
The following conditions must be cumulatively met (Article 26 of the eIDAS Regulation):
3) The so-called "qualified" electronic signature
This is the highest level of security that must meet the requirements of Articles 28 and 29 of the eIDAS Regulation, as specified in Annexes I and II of said Regulation.
It is an "advanced" electronic signature (see above), but strongly reinforced by an additional level of security. In particular, security is enhanced with regards to the "creation device" of the signature, the securing of the documents and their encryption, and the addition of a specific certificate known as a "qualified certificate" issued by a service provider authorised by the competent national authority (the Agence Nationale de la Sécurité des Systèmes d'Information (ANSSI) in France).
The national lists and the European list of providers of qualified electronic signatures can be consulted at the following address:
|In practice: what level of electronic signature for corporate documents?||
For the drawing up or certification of the minutes of shareholder decisions and decisions of certain corporate bodies, as well as for the digital keeping of the company registers on which they are stored, the aforementioned Decree of 31 October 2019 requires at least an advanced electronic signature.
Documents drawn up or certified by electronic signature must be electronically dated by means of a time stamp that provides a guarantee of proof.
|Documents concerned for the corporate form SA||
|Documents concerned for the corporate form SAS||
|Risk of Evidence & Recommendations||
The probative value of a written document depends on the probative value of its signature.
While the "qualified" electronic signature benefits from a presumption of reliability, it remains rarely used in practice because of its complexity (and this presumption remains, in any case, rebuttable).
The "advanced" electronic signature is sufficient to constitute evidence generally admitted in Court. Administrations such as the Commercial Registry, the Courts or the INPI (French National Institute of Industrial Property), have long admitted it. The tax authorities have also just admitted it.
Recommendations to enhance the security of a legal document signed by electronic signature:
For more information, please contact:
T +33 (0)1 44 94 31 55
E aline.poncelet @hfw.com
Of Counsel, Paris
T +33 (0)1 44 94 31 70
T +33 (0)1 44 94 31 92