New Belgian legislation enables notaries to work on remote by using qualified electronic signatures.

Qualified electronic signature

The current Corona crisis is impacting just about every sector. Also the notarial profession was hit. For example, notaries have been instructed to only execute urgent notarial deeds. Because the notary is an essential link in many matters – both private and professional – an urgent search was made in several countries for a trustworthy solution to safely execute deeds remotely. They found a solution in qualified electronic signing, the most trustworthy way to sign documents electronically in accordance with the European eIDAS Regulation. This trend is visible in Belgium, France and several other European countries.

In this blog post, we provide an overview of what qualified electronic signing means, and which initiatives have been taken to make sure notarial deeds can proceed on a remote basis.

 

Qualified Electronic Signature

The European eIDAS Regulation makes a clear distinction between three different types of electronic signatures. For a comprehensive overview and description of the different types of electronic signatures, we refer to one of our previous blogposts, however, a qualified electronic signature must meet the following conditions (Article 3 §12 of the eIDAS Regulation):

  • uniquely linked to the signer,
  • capable to identify the signer,
  • created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control,
  • linked to the data signed in such a way that any subsequent change to the data can be detected, and
  • created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures

 

Digital power of attorney

The European trend we are currently seeing is the use of the so-called (authentic) digital power of attorney. It is not the notarial deed itself (for example, the purchase-sale deed, or deed of incorporation of a company) that is signed electronically, but an (authentic) power of attorney.

By way of that document, the party involved gives (notarial) power of attorney to, for example, an employee of the notary to sign the actual deed itself in his or her name.This means the parties involved no longer have to go to the notary, which in addition to contributing to social distancing also means time savings.

The use of an authentic power of attorney has long been established in the operation of the notary, but the possibility of granting it remotely is now a new and major leap forward in the digitisation of the notarial profession.

 

New legislation

In Belgium, the first legislative initiative was launched at the beginning of April with the “Wetsvoorstel houdende diverse bepalingen inzake justitie in het kader van de strijd tegen de verspreiding van het coronavirus COVID-19” [Bill containing various provisions on justice in the context of the fight against the spread of the coronavirus, COVID-19].

The Bill changes the existing Law dated 16 March 1803 concerning the notary’s office, and provides the possibility for powers of attorney (including care proxies (so-called “zorgvolmacht”) – which must be executed in authentic form by law – to be granted both electronically and remotely. However, when such power of attorney is given remotely, additional conditions apply (non-exhaustive list):

  • All parties involved must appear before the notary via video conference;
  • Parties must identify themselves and sign the power of attorney electronically by means of the electronic identity card (.beID) or via itsme®;
  • The notary signs the deed with his or her electronic identity card;

The Bill explicitly mentions that, during the COVID-19 crisis, no extra costs may be charged.

The Bill was adopted on 23 April 2020. We are currently awaiting further publication of the new law in the Belgian Official Gazette. Entry into force is foreseen from the publication date.

 

  Nathan Schryvers – Legal Counsel, Connective

 

Connective eSignatures

Connective offers via Connective eSignatures Simple (Basic), Advanced and Qualified signing methods. An overview of the available methods is provided below.

 The goodThe betterThe best
What?Basic Electronic SignatureAdvanced Electronic SignatureQualified Electronic Signature
Why?- Quick & easy
- Easy to use on mobile
- Visually the same as on paper
- Linked to signer
- Provides more legally binding proof
- More thrustworthy than basic signature
- Highest level of security
- Personal link to signer
- Digital equivalent of wet signature
- Legal obligation
Use cases- Signing when receiving a package
- Simple approval
- Client onboarding*
- Credit loan*
- ...

*depending on local legislation or risk
- Client onboarding*
- Credit loan*
- ...

*depending on local legislation or risk
- Signing insurance documents
- Public administration procedures
Connective solution- SMS OTP
- Mail OTP
- Manual signature
- SMS OTP
- Mail OTP
- Biometric signature
- .beID
- LuxID
- itsme® sign

 

Are you looking for more information? Don’t hesitate to contact us. We are more than happy to help you find your way into the digital future.