Within the European Union, an electronic signature cannot be dismissed solely on the grounds of its format. In the case of the qualified electronic signature, its legal value is equivalent to that of a handwritten signature. However, in case of litigation, it is possible to dispute the validity of this type of e-signature. It will then be necessary to provide proof that it was created through fraudulent means.
The burden of proof in case of dispute of an electronic signature
If the e-signature is qualified, it is commonly acknowledge that it has the legal equivalent of a handwritten signature. It will therefore be up to the party who challenges the signature to prove that it cannot be assimilated to a handwritten signature in a specific case.
On the other hand, if the electronic signature is advanced, the electronic signature is not a priori assimilated to a handwritten signature. So, it will be up to the party who invokes the validity of the electronic signature to prove that the signature electronic has been made in such a way that it can have the legal value of a handwritten signature.
Thus, the user of a device allowing him to electronically sign documents at the qualified level will be in a better position in case a co-contractor in an EU country challenges his electronic signature.
How to obtain evidence in the event of a dispute
Support in the event of a dispute will depend on your chosen service provider and the level of signature you used.
If you are a LuxTrust customer or the dispute is related to the use of a LuxTrust signature certificate, you can contact our customer service who can provide the competent authorities with the audit trail related to the use of your certificate. It remains the user's responsibility not to share the elements of his LuxTrust digital identity (UserID, password, OTP or PIN code in the case of chip-based products) with a third party.