Since 2007 employment contracts can be signed electronically. Moreover, it is also possible to send and archive various social documents electronically.
Under the currently applicable provisions, an employment contract signed electronically has the same effect as a hand-signed one provided that (1°) the signature is created by the electronic identity card (eID) or (2°) that the signature meets the "same security conditions as those of the eID". According to the law, a Royal Decree can determine "the security conditions" in question. However, no regulation in that regard has been issued. As a consequence, currently the only way of signing an e-employment contract is by using the electronic identity card.
Since 2007, many developments have occurred at the European level, in particular since the adoption of the EU Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ("the eIDAS regulation"). The purpose of this Regulation is to create confidence in electronic transactions. According to the eIDAS regulation, a qualified electronic signature has the same legal effect as a handwritten signature. Moreover, the eIDAS regulation also provides that other non-qualified electronic signatures cannot be dismissed only due to the fact that it is an electronic signature or because this signature does not meet the requirements for qualified electronic signatures. The legal effect resulting from such signatures shall be set by national laws.
The applicable legislation in Belgium concerning e-employment contract is not adapted to this EU regulation. The purpose of the new law is, thus, to ensure that Belgian legislation complies with the eIDAS regulation and, as a consequence, to increase the options to sign employment contracts electronically without jeopardizing the security and the protection of the parties to the employment contract (and in particular of the employee).
In a nutshell:
- The new act provides that an electronic employment contract is considered a handwritten document in the following cases:
- qualified electronic signature or qualified electronic seal in the sense of the EU regulation
- or any other electronic signature which safeguards the identity of the parties, their consent on the contract’s content and which maintains the integrity of the contact
- Neither the employer or the employee can be forced to conclude an employment contract electronically
- The e-employment contracts must be stored by a digital archiving service provider offering guarantees with regards to confidentiality, security, impartiality, transparency and financial stability (or by the employer providing such a service on his own account). This archiving cost needs to be borne by the employer and not by the employee. The employee must have access to the stored e-employment contract at any time, until the expiry of a 5-year period following the termination of the employment contract and without cost. After this 5-year period, this e-employment contract must be transferred to SIGeDIS
In this framework, the new act also provides some new stipulations to adapt the applicable legislation to send and archive various social documents electronically .
The new stipulations will enter into force immediately, at the same date as those which will be set by Royal Decree for the entry into force of article XII.25, § 5, 3, of the Code of Economic Law (concerning digital archiving service provider).
*The legal reforms discussed in this publication are not definitively approved by Parliament yet, and may be subject to change.