In accordance with Art. 14 para 2bis Code of Obligations, only qualified electronic signatures associated with a qualified time stamp are deemed equivalent to a handwritten signature in terms of legal effects.
What is considered a qualified electronic signature is governed by the Federal Act of 18 March 2016 on Electronic Signatures (ESigA, SR 943.03). The ESigA also governs other types of signatures: the regulated electronic signature and the regulated electronic seal, for which slightly lower requirements apply than for qualified signatures. All these signatures governed by the ESigA must be based on corresponding certificates issued by certification service providers recognised in Switzerland.
Qualified signatures with qualified time stamps are absolutely necessary only to conclude legal transactions for which at least simple written form is required by law (assignment, apprenticeship contract, non-competition agreement, acknowledgement of debt, etc.). In private law, formulations such as "...in writing...", "...in written form...", "...signed...", "...provided with a signature..." and the like are indications that simple written form or, accordingly, a qualified signature in electronic form is required.
Simple written form means that the content of the agreement is written down permanently, as a rule on paper or on a form, and then signed by hand. The identity of the signatory must be ascertainable. In the case of qualified written form, certain additional elements are required in addition to the signature with the signatory's own hand, such as that the content must have been written by the signatory's own hand, indication of the place and date (last will and testament), instruction on legal remedies, etc.
In all cases in which neither simple nor qualified written form or public authentication are prescribed, a legal transaction may be concluded without a formal requirement. In terms of serving as a condition of validity for a legal transaction, qualified signatures therefore are significant only in cases where the legal transaction cannot be concluded without a formal requirement. However, qualified electronic signatures enjoy the highest level of trust as evidence and are recommended on grounds of security.
Only qualified electronic signatures and regulated electronic seals are signatures governed by the Swiss ESigA and thus comply with a precisely defined quality standard (ESTI standard) applicable to Switzerland and the EU with regard to the highest level of technical security, protection from misuse, and security as to the identity of the signatories.
Advanced signatures are available at many different technical security levels and with different identification processes when issued. They are therefore not standardised with regard to technical security and the credibility of the holder's identification. Where advanced certificates are used for signing, they should at least be issued by recognised Swiss certification service providers and employ a secure identification process (upon presentation of a passport or ID), as is the case e.g. for signature certificate class B on the smart card of employees of the Federal Administration. Otherwise, it could be possible to fake the identity of the signatory or for the signatory to deny that they knew and signed a document. All the more, this means that attention must be paid to the quality of the electronic signature and certificate.
Certificates issued by providers recognised in the EU, the EEA, or third countries are at best regarded in Switzerland as advanced certificates (which are at least still classified as secure) and thus not as qualified or regulated, and vice versa. This therefore does not fulfil the formal requirement of simple written form. For this to be otherwise, Switzerland would have to conclude international agreements with the EU and third countries that have trustworthy providers. Such an international agreement could be concluded with the EU without any technical obstacles, given that the ESigA is compatible with the corresponding eIDAS Regulation of the EU.
Certificates and the type of electronic signatures are governed by the worldwide standard ETSI EN 419241-1 (limited harmonisation).
