Until mid-2016, the use of electronic signatures in the European Union was governed by Directive 1999/93 on a Community framework for electronic signatures (E-Signature Directive) as transposed into the national laws of 28 member states of the European Union. In Belgium, the E-Signature Directive was implemented by the Act of July 9, 2001 laying down a legal framework for electronic signatures and certification services.
The Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS Regulation) was adopted in July 2014, and has been effective as of July 1, 2016. The eIDAS Regulation aims to provide more predictable regulatory environment and is directly applicable in all member states of the European Union without having to be transposed in national legislation.
The eIDAS Regulation has a 2-tier approach. This means that all electronic signatures – that is, "data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign" receive some legal recognition – but only so-called "qualified" electronic signatures are automatically assimilated with handwritten signatures. Thus, in case of a dispute, it will be up to the competent court to decide whether a "non-qualified" electronic signature can be assimilated with a handwritten signature. The eIDAS Regulation does not preclude member states from deciding that, in certain circumstances, only specific types of electronic signatures, such as qualified electronic signatures, can be used.
Under Belgian law for example, an employment contract can only be signed electronically by using a specific type of qualified electronic signature. In any event, both the employer and employee retain the right to conclude an employment contract by using a handwritten signature.
The approval of Book VIII of the new Belgian Civil Code, which entered into force on November 1, 2020, introduces new rules on evidence and specified the position of electronic signatures with regard to evidence. Book VIII now expressly includes an electronic signature within the definition of “signature”, by stating that a signature is “a sign or a sequence of signs, applied by hand, electronically or by any other process, through which a person identifies himself and from which his will is shown”. For the definition of an electronic signature, Book VIII of the new Belgian Civil Code directly refers to the definitions given under the eIDAS Regulation.
On June 3, 2021, the EU Commission published its proposal on the revision of the eIDAS Regulation, which constitutes a complete overhaul of the European digital identification framework. The proposal is currently in the preparatory phase in the European Parliament following the ordinary legislative procedure and may thus still be amended.