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Digitalisation is crucial for undertakings and organisations. The call for it has been around for a while but was brought even more prominently onto the agenda during and after the COVID-19 crisis. The latter raised questions such as: how can we sign electronically whilst preserving, to the greatest extent possible, equivalence with a wet ink signature? And can documents be maintained in electronic format only?
Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market, also known as the “eIDAS Regulation”, provides answers to these questions. It remains one of the most underestimated EU regulations, which is somewhat surprising given its importance in ensuring that electronic transactions can take place with legal certainty.
From eIDAS 1.0 …
The first version of the eIDAS updated the rules on electronic signatures, building upon a framework already established in a 1999 EU Directive, and introduced – harmonised at EU level – the following key elements:
- the introduction of an eID (electronic identification), enabling access to online public services;
- rules on website authentication;
- a range of additional electronic trust services beyond the electronic signatures, such as electronic seals (which demonstrate the integrity and the origin of electronic documents), electronic registered delivery services and electronic time stamping.
Those electronic trust services all correspond to features that exist in a non-electronic form, for example, electronic signatures versus wet ink signatures.
Under the eIDAS Regulation, electronic trust services are generally divided into three levels of assurance: basic, advanced, and qualified.
At the “basic” level, the principle of non-discrimination applies: an electronic version of the service cannot be rejected solely on the grounds that it is electronic.
However, in practice, such a basic level often has lacunae when it comes to demonstrating authenticity and integrity. For example, a scanned signature inserted into a Word document can easily have its probative value challenged.
This is less of an issue at the “advanced” trust level. For each of the eIDAS electronic trust service, specific conditions are laid down to ensure sufficient authenticity and integrity to make them legally equivalent to their non-electronic counterparts. For example, an advanced electronic signature is considered equivalent to a wet ink signature if:
- it is uniquely linked to the signatory,
- the signatory can be identified,
- it is created using signature creation data under the sole control of the signatory,
- it is linked to the signed data in such a way that any subsequent modification of the data can be detectable.
The “qualified” trust level requires certification by a qualified service provider. Returning to the example of electronic signatures: a qualified electronic signature, backed by a qualified service provider, benefits from a legal presumption of equivalence with a handwritten signature. While the conditions for equivalence are largely similar to those at the advanced level, involving a qualified service provider relieves the relying party from having to prove that these conditions have been met.
It remains surprising that so many organisations are still reluctant to rely on electronic trust services, some of which offer even greater legal certainty than their non-electronic equivalents. For instance, electronic registered delivery not only provides certainty that data was sent, but also secures the content and integrity of the data itself. This stands in contrast to physical registered mail, which only confirms the sending and receipt of documents but says nothing about their actual content.
Finally, eIDAS has established a high degree of mutual recognition across the EU: qualified services provided in one Member State must also be accepted in the others. A list of these qualified service providers is available on the European Commission’s website (click here).
… towards a smart implementation in Belgium …
The eIDAS Regulation serves as a toolbox, establishing rules of equivalence and providing guarantees of integrity, authenticity, and accuracy for various electronic trust services. However, it does not mandate their use. It remains the responsibility of EU Member States to determine the circumstances under which a signature or seal is required, as well as when the qualified trust level must be applied.
Belgium has made several pragmatic adjustments to its legal framework, particularly in the Code of Economic Law and the Civil Code. For example, a new definition of “signature” has been introduced in Book 8 on Evidence, aligning with the criteria for an advanced electronic signature. Belgium has also abolished the requirement to produce as many originals as there are parties, provided a valid electronic signature is used.
In cases where a qualified electronic seal is applied to legal deeds executed by persons domiciled or established in Belgium, Belgian law treats it as equivalent to the handwritten signature of the natural person representing the legal entity that created the seal.
Another notable development is the obligation to use qualified electronic time-stamping services whenever legislation requires data or documents to be dated.
Additionally, Belgium has introduced specific rules on electronic archiving — a type of electronic trust service not originally addressed in eIDAS 1.0. These rules provide for both advanced and qualified trust levels. By engaging a qualified service provider, organisations can dematerialise physical documents and preserve them electronically, with the electronic version benefiting from a presumption of equivalence with the original. Where legal archiving obligations apply, organisations are even required to use a qualified archiving service provider if they wish to maintain documents in an electronic format.
… anticipating some features of eIDAS 2.0
By introducing legislation on electronic archiving, Belgium addressed a gap that eIDAS 1.0 had left open. The 2024 revision — commonly referred to as eIDAS 2.0 — now provides for EU-wide harmonisation of electronic archiving rules, which are largely consistent with the existing Belgian framework.
However, eIDAS 2.0 goes much further. It introduces new trust services, such as electronic ledger services — a sequential, chronological recording of data entries that ensures both the integrity of the individual records and the accuracy of their ordering — and electronic attestation of attributes (EAA). EAAs are electronic attestations allowing attributes to be verified, for example by a public authority managing an authentic source (such as a driving licence database).
Most significantly, eIDAS 2.0 paves the way for the creation of an EU Digital Identity Wallet — a secure digital platform designed to enable citizens and businesses to verify identities, store credentials (such as diplomas, driving licences, etc.), access services across Member States using strong authentication, and apply electronic signatures and seals. It also simplifies data sharing. Once fully operational, this wallet is expected to give digitalisation in the EU a substantial boost.
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