How are digital signatures regulated? Validity of the digital signature

Where can I use my digital signature and where is it valid?

The use of the digital signature is basically free, and the validity and which legal effect is triggered can be freely agreed between two contracting parties.

There are also special legal regulations for certain areas, such as electronic invoicing or e-government. This has the advantage that the users of the digital signature do not have to agree on the validity themselves in each individual case, as it is regulated by law.

The Signature and Trust Service Act (SVG) recognizes three forms of signatures: simple, advanced and qualified. In principle, each is permissible and it is not possible to derive from the type of signature alone whether a document is legally valid or not. However, there are additional express legal regulations for advanced and qualified signatures.

The advanced signature (such as GLOBALTRUST/A-CERT ADVANCED or the official signature GLOBALTRUST/A-CERT GOVERNMENT for authorities) are recognized as sufficient to certify the integrity of a document (in the case of official notifications or electronic invoices, this has the legislature also expressly stated).

If the advanced signature is also applied to other documents, then in the event of a legal dispute that would also end up in court, they are subject to the free assessment of the evidence by the judge, who would check the integrity by an expert. Since advanced signatures are recognized procedures for ensuring integrity, there would be no problems in determining the integrity of documents signed in this way. Advanced signatures can also be assigned automatically. This is also the most important advantage over qualified signatures.

The qualified signature, which must be triggered by a person as a declaration of intent (automated signing is not permitted), not only expresses the integrity of a document, but also a declaration of intent by the signer and is equivalent to a handwritten signature. In a procedure, a signatory could therefore dispute neither the integrity nor the fact that he personally agrees with the content. In principle, a judge would have to recognize such a document as signed by hand, but in fact he will again have to obtain an expert who will check whether it is (a) a qualified signature, (b) just an advanced signature with a qualified certificate or ( c) the certificate itself is falsified and only pretends to be a qualified signature. In fact, however, in the last 10 years nobody has disputed the validity of signed documents – neither advanced signed nor qualified signed.

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Are there exceptions to the validity of the qualified signature?

There are also exceptions to the validity of the qualified signature: Documents that require a notary public, such as wills, real estate and company sales, but also family and matrimonial law matters cannot be digitally signed, but still require the written form and personal signature in front of a notary or court.

In a nutshell: If a company is concerned with audit-proof storage of documents, document management so that it can still have the status of a stable document even after its age, then a stable signature is sufficient. It has the advantage that it can be used automatically in a user-friendly manner. If it is about notarizing a contract, a declaration of intent, then a qualified signature would be required.

In general, extended signature processes in the B2B sector are on the rise throughout the EU. The reasons are varied, but primarily lie in the better (automated) integration in the business processes. The requirement for a personal declaration of intent is usually exaggerated and is required less and less frequently (e.g. invoices and invoices are not signed). It does not make sense to create and send cost estimates or invoices automatically and in between having to interrupt the process flow with a manual, individually controlled process.

Examples for the application at European level is the EU electricity market, where all participants can use an extended signature (a qualified authorization is also an alternative). In Austria they are used in official transactions (official signature) or in electronic legal transactions.

Special case of electronic invoicing

Here, the Federal Ministry of Finance decreed (December 2003, Federal Law Gazette II No. 583/2003) that invoices with “advanced electronic signatures” must be recognized as input tax deductible. This regulation is based on an EC directive 2001/115/EC. The requirements for this are met by GLOBALTRUST/A-CERT ADVANCED. Some GLOBALTRUST/A-CERT ADVANCED customers have already had tax audits and there were no complaints regarding electronic invoices signed by ADVANCED.

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