Austria's Legal Take On Electronic Signatures

Austria has legally recognised electronic signatures since 1999, when the Federal Signature Law was passed. As a member state of the European Union, Austria adheres to the eIDAS regulation, which standardises the use of electronic signatures across all EU countries.

Under Austrian law, contracts are generally considered valid if two competent parties reach an agreement, regardless of whether it is verbal, electronic, or on paper. However, it is important to note that if the matter goes to court, evidence will need to be presented to prove the contract's validity.

There are three types of electronic signatures recognised in Austria: Simple Electronic Signature (SES), Advanced Electronic Signature (AES), and Qualified Electronic Signature (QES). Each type varies in terms of security features and legal validity.

While electronic signatures are widely accepted in Austria, there are certain exceptions where a handwritten signature is required, such as in legal transactions under family and inheritance law, provisions in a lease agreement that are not in the tenant's favour, and legal transactions entered into by blind individuals.

Austria's recognition of electronic signatures as legally valid

Austria has recognised electronic signatures as legally valid since 1999, when the Federal Signature Law was passed. As a member state of the European Union, it is governed by Regulation No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS).

Austria operates under a civil law system, which is founded in Roman law and is based on a codified set of laws that are regularly updated. These laws are more heavily favoured than legal precedents, and around 60% of the world's countries engage in civil law systems.

The use and acceptance of electronic and certificate-based digital signatures are widespread in Austria and have increased in recent years. Electronic signatures are also being used more and more in day-to-day transactions.

There are three types of electronic signatures recognised in Austria:

• Simple electronic signature (SES): the most basic and least verifiable type. This includes checkboxes that are clicked to agree to terms of use and scanned signatures.
• Advanced electronic signature (AES): includes security features such as encryption and signer authentication. These can be uniquely linked to the signer, identify them, and control any changes to documents.
• Qualified electronic signature (QES): carries the highest level of legal validity. The requirements are the same as for AES, but QES also requires a qualified certificate and a qualified device.

A QES is treated as equivalent to a handwritten signature and is presumed authentic unless proven otherwise. It is rarely needed in Austria and is usually only required for specific documents, such as employment agreements with apprentices, agreements on employee invention ownership, and personal declarations of guarantee.

In some cases, a traditional, handwritten signature is still required. These instances include legal transactions under family and inheritance law, provisions in a lease agreement that are not in the interest of the tenant, legal transactions entered into by blind persons, non-revocable employee consent to the use of surveillance systems, employee contract amendments, and any other documents requiring formal notarisation.

It is important to note that while electronic signatures are legally valid in Austria, a person cannot be forced to contract electronically. The option to use a handwritten signature should always be available.

The three types of eSignatures in Austria

As a member state of the European Union, Austria has recognised electronic signatures as legally valid since 1999, when the Federal Signature Law was passed. This was standardised for all EU member countries in 2016 with the eIDAS regulations.

Austria, like most EU countries, recognises three types of electronic signatures:

• Simple electronic signature (SES): The most basic and least verifiable type of e-signature. This includes checkboxes that are clicked to agree to terms of use, or scanned signatures.
• Advanced electronic signature (AES): This type of e-signature comes with security features such as encryption and signer authentication. They can be uniquely linked to the signer, identify them, and also control any changes to documents. An AES must meet four criteria: 1) it must be uniquely linked to the signatory; 2) it must be capable of identifying the signatory; 3) it must be created using electronic signature creation data that the signatory can, with a high level of confidence, use solely under their control; 4) it must be linked to the signed data in such a way that any subsequent change in the data is detectable.
• Qualified electronic signature (QES): This type of e-signature carries the highest level of legal validity. The requirements are the same as for advanced electronic signatures, except that QES requires a qualified certificate and a qualified device. A QES has the same legal effect as a handwritten signature. Its authenticity is presumed unless proven otherwise and it is accepted as evidence in legal proceedings.

When a qualified electronic signature is needed

In Austria, a qualified electronic signature (QES) is rarely needed. However, there are certain instances when a QES is required.

A QES is necessary when signing employment agreements with apprentices, agreements on employee invention ownership, and personal declarations of guarantee.

QES also serves as an acceptable substitute for a handwritten signature when one is required. Instances when a handwritten signature is necessary include legal transactions under family and inheritance law, provisions in a lease agreement that are not in the tenant's interest, legal transactions entered into by blind persons, non-revocable employee consent to the use of surveillance systems, employee contract amendments (parental leave, study leave, leave of absence, reduction of work hours), and any other documents requiring formal notarization.

A QES has the same legal effect as a handwritten signature and is presumed authentic unless proven otherwise. It is accepted as evidence in legal proceedings.

The procedure for acquiring a QES involves a qualified trust service provider (QTSP) and a qualified device, such as a biometric ID card. This process is not straightforward and typically requires additional electronic devices that a regular household does not have readily available.

When handwritten signatures are required

In Austria, handwritten signatures are required on a very limited basis. However, when they are necessary, a Qualified Electronic Signature (QES) is an acceptable substitute.

The following instances require a handwritten signature:

• Legal transactions under family and inheritance law
• Provisions in a lease agreement that are not in the interest of the tenant
• Legal transactions entered into by blind persons
• Non-revocable employee consent to the use of surveillance systems
• Employee contract amendments (parental leave, study leave, leave of absence, reduction of work hours)
• Any other documents requiring formal notarization, such as:
• Agreements between spouses regarding sales, exchanges, annuities, loans, and admission of obligation
• Donation contracts without actual delivery
• Documents established by blind persons regarding legal business between living persons, except transactions of day-to-day business and common banking agreements (e.g. opening a current account)
• The drawing up of statutes, the appointment of the first supervisory board, and minutes of general meetings for the Company Register
• Various real property agreements that must be registered in the Land Register, including sale and purchase agreements and mortgage agreements

Additionally, certain documents may not be signed electronically and require the confirmation of a notary or lawyer, including:

• Matters of family or inheritance law that are subject to written or stricter form requirements (such as matters concerning child and youth welfare services, legal guardianship, and healthcare proxy)
• Sureties given by a person not acting within their commercial, business, or work-related capacity

The legal basis for electronic signatures

The eIDAS regulations state that an electronic signature is:

> "data in electronic form which is attached to other electronic data, or logically connected with it, and which a signatory uses as a signature."

The purpose of an electronic signature is to attribute a document to the signatory and ensure the document has not been forged. The eIDAS regulations also allow for national law to set requirements on the types of signatures required in different circumstances.

In Austria, the law regarding electronic signatures is also covered by the Signature and Trust Services Act (Signatur- & Vertrauensdienstegesetz or SVG), which specifies the requirements for the application and issuance of qualified certificates, trust service providers, certificate databases, and fees for the supervisory body.

The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB), section 886, states that QES fulfils the requirement of written form pursuant to Section 4 Para 1 of the SVG. Additionally, section 294 of the Austrian Code of Civil Procedure (Zivilprozessordnung or ZPO) states that documents signed by the issuer are considered full proof that the contents of the document come from the issuer. As QES are treated as equivalent to a handwritten signature, this also applies to documents signed using a QES.

It is important to note that while electronic signatures are widely accepted in Austria, there are certain exceptions. For example, some documents may require a notary deed or certification of signature, and traditional handwritten signatures are still required for some legal transactions, such as those under family and inheritance law.

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