03 May 2021

Why does MME recommend the Qualified Electronic Signature when it comes to digital signing?

  • Articles
  • Legal
  • Data / Technology / IP

In Switzerland, there is a lot of confusion and uncertainty in the area of digital signing processes. What are suitable technical solutions for digitizing existing paper-based processes with customers, suppliers, and employees in a legally secure way?

In Switzerland, there is a lot of confusion and uncertainty in the area of digital signing. What are suitable technical solutions for digitizing existing paper-based processes with customers, suppliers, and employees in a legally secure way?

First, digital signing does not mean that a ""signature"" (replica of a handwritten signature) is added to a digital document. Rather, an electronic signature is used to digitally modify a document (PDF) in such a way that subsequent changes to the document can be easily detected and the person signing the document can be identified.

The Federal Law on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates (ZertES) provides for different types of digital signatures: (i) simple electronic signature, (ii) advanced electronic signature (AES), (iii) qualified electronic signature (QES), (iv) regulated electronic seal. This diversity often leads to uncertainties in practice.

Attention: Only the QES is equated with the handwritten signature (Art. 14 para. 2bis CO). There is therefore a risk of formal errors if the written form is required by law or based on the agreement between the parties. If the parties have provided for the written form, a QES is required for the contract or subsequent changes to be legally valid (Art. 16 in conjunction with Art. 14 para. 2bis CO).

MME recommends using only the Qualified Electronic Signature (and not FES solutions):

Legal security:
  • no need for legal clarifications regarding the validity of electronic signatures
  • minimization of the risk of formal errors
  • highest evidential value in civil procedures
  • data protection compliant
  • Efficient: 1 Standard process
  • Fast and location-independent: elimination of complicated paper processes
  • Cost-saving: Elimination of postal and courier costs (QES is still more expensive than FES today, however)

With the Digital Concierge service, MME offers a legal and technical carefree package. As a leading digital consulting firm in the areas of legal, tax and compliance, MME, as a Registration Authority Agency for Swisscom, takes over the implementation of the identification process that natural persons must go through before they can have qualified electronic signatures. Together with our partner Swisscom, we developed a technical solution that is based on secure technology and uses data storage in Switzerland. This allows contracts to be conveniently signed electronically by using a cell phone.

 
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