Legal value of electronic signatures: what article 1367 of the French Civil Code says

In a ruling handed down on March 13, 2024, the French Supreme Court (Cour de cassation) ruled that the affixing of a signature in the form of a digitized image (scanned signature) could not benefit from the same legal regime as an electronic signature within the meaning of article 1367 of the French Civil Code.

Discussed in a dedicated article, this case law is the perfect opportunity to review the legal framework for electronic signatures, and to dissect the texts that make it up...

Because, admittedly, between the paragraphs here and the decrees there, it's easy to get lost.

In this article, we'll show you how to read between the lines ofart 1367 of the French Civil Code, understand how it relates to European law and (therefore) choose the right electronic signature solution. 

 

French law and art 1367: key points to remember

• Electronic documents have the same probative value as paper documents 

This article 1366 which stipulates that it must be possible to duly identify the person from whom it emanates, and that it must be drawn up and preserved under conditions that guarantee its integrity.

Under the terms of this article, therefore, an electronic signature is legally admissible in the same way as a signature on paper. However, its legal value, and therefore its reliability, depends on the level of electronic signature.

The level of electronic signature refers to the distinction between simple, advanced and qualified signatures, as set out in the eIDAS regulation (the legal reference at European level). The three levels of signature (legal and/or financial) implied by the document in question.

Article 1367, when referring to electronic signatures, sets out the prerequisite of applying to an electronic writing, which must satisfy the conditions of article 1366. This article specifies that an electronic document has the same probative value as a paper document, provided that the person from whom it emanates can be duly identified, and that it is drawn up and stored in conditions that guarantee its integrity.

Moreover, article 1367 defines an electronic signature as "the use of a reliable identification process guaranteeing its link with the act to which it is attached".

This definition seems to meet the requirements of article 26 of the eIDAS regulation defining advanced signatures. However, this does not mean that the simple signature is not acceptable for the civil code.

 

• Only qualified electronic signatures are presumed reliable

This alternative to handwritten signatures makes it possible to authenticate the identity of the signatory and guarantee the integrity of the associated documents... provided certain conditions are met.

This is what the article specifies as follows: " The reliability of this process is presumed, in the absence of proof to the contrary, when the electronic signature is created, the identity of the signatory is assured and the integrity of the document is guaranteed, under conditions laid down by decree in the Conseil d'Etat. "

According to the same decree, and in line with the eIDAS regulation, only the highest level (qualified electronic signature) benefits from this presumption of reliability. In other words, if a dispute arises, it is the person challenging the signature who will have to prove that it is invalid. By its very nature, it will be considered reliable.

Conversely, for the other types of electronic signature (i.e. simple and advanced), it is up to the person claiming the reliability of the signature to prove that the integrity of the document is guaranteed and that the device used guarantees the identification of the signatory as well as the link between the signature and the document to which it is attached.

 

The role of the evidence file

Whatever the signature level used, the generation of a proof file guarantees the integrity and authenticity of signed documents.

It contains all the information collected during the signature process, the identity of the Signatory and the way in which he/she authenticated himself/herself. In the event of a dispute, this is essential.

So, if you choose a trusted service provider to help you implement electronic signatures, make sure they can provide you with a detailed, secure proof file(like us, for example...) for all signature levels.

 

• A more demanding definition of the electronic signature than the eIDAS regulation

The European eIDAS regulation provides a more flexible definition of an electronic signature: while Article 1367 of the French Civil Code defines it as the use of a reliable identification process guaranteeing its link with the document to which it relates, the regulation describes it as " data in electronic form, which is attached to or logically associated with other data in electronic form, and which the signatory uses to sign"..

This is what led to the case law described above and detailed in this article.

 

?Art 1367 of the French Civil Code and the eIDAS Regulation: how do you know which text applies in the event of a dispute?

The jurist Hans Kelsen highlighted the hierarchy of norms in a constitutional state in the form of a pyramid. In France, Kelsen's pyramid places the French Constitution at the top, followed by treaty law.

Conventional law comprises all the international treaties signed by France, as well as European Union law. As article 1367 of the French Civil Code is located at the level of the "bloc légalité" and the eIDAS regulation at the level of the "bloc conventionnel", this pyramid places the eIDAS regulation above article 1367. 

In this case, even if article 1367 is more restrictive in its wording, it is not contrary to the eIDAS regulation.

 

Adopt and integrate an electronic signature tool that complies with regulations 

In a context of widespread digitalization, electronic signature platforms are essential to streamline your document exchanges and protect you from litigation. 

A solution like Lex Enterprise allows you to : 

• Select the right level of security for your business needs
• Manage the 3 signature levels and avoid duplicating tools
• Generate detailed, highly secure proof files (thanks to a time-stamping and sealing system. This prevents falsification of the file itself), whatever the signature level chosen.
• Ensure easy integration of the tool with your existing information system, business processes and applications, thanks to our free API
• Choose a tool that is constantly on the lookout for new regulations and has labels and certifications confirming its reliability

 

Conclusion

Even though we've tried to be as educational as possible in this article, we're well aware of what's at stake: it's not easy to embark on the road to electronic signatures with equanimity, at a time when regulations are evolving (hello eIDAS V2) and legal subtleties continue to be refined by case law.

So to set up an electronic signature compliant electronic signature solutionThere's nothing like an expert, certified, trusted service provider... and peace of mind for you.

 

? Find out all about our electronic signature platform.