Switzerland: Framework for Electronic Signatures Now in Place

By András Gurovits Marco Weber

A new Code on Electronic Signatures will become effective on January 1 2005. The draft of the relevant implementing ordinance is now open for public consultation and comments from interested parties.

On April 12 2000 the Swiss government enacted an ordinance with the aim of establishing an interim regulation on the basis of which electronic signatures can be used and certified until new legislation regulating their use is in force. This ordinance is not mandatory and interested parties can choose whether to observe its provisions. However, signatures which comply with its rules enjoy greater credibility.

The new law was duly adopted by the Swiss Parliament in December 2003, and a Code on Electronic Signatures will become effective on January 1 2005. The revised draft of the implementing ordinance is now open for public consultation and comments from interested parties, in order to ensure that the final solution is tailored to meet the needs of daily practice.

The main rules set out in the draft ordinance are as follows:

• A central administration authority will be responsible for accrediting the bodies that may authorize electronic certification service providers;
• Certification service providers may only be authorized upon presentation of either (i) valid insurance coverage or (ii) a guarantee of either Sfr10 million per year or Sfr2.5 million per insurance case;
• The certified signature keys of certification service providers must fulfil certain minimum requirements and be based on recognized algorithms, as further defined by the authorities and set out in the implementing ordinance; and
• Certification service providers must not store key copies, but should keep records of their certification activities for a period of at least 11 years.

Amendments to several other codes - such as the Swiss Code of Obligations, the Civil Code and the Trademarks and Patent Codes - are also necessary. In particular, amendments to the Swiss Code of Obligations which also take effect on January 1 2005 provide that: (i) electronic signatures bearing a qualified certificate from a recognized certification service provider will be treated identically to handwritten signatures (Article 14); and (ii) the owner of a valid key certificate will be held responsible for damages caused to third parties who relied in good faith on that certificate, provided the owner cannot excuse itself by demonstrating that it applied all necessary precautionary measures (Article 59(a)).

The new rules are expected to provide a framework which will increase the use of electronic signatures and ensure the installation of practical electronic certification systems. However, given the speed at which technological improvements and solutions evolve, the Swiss legislation will have to follow such developments closely, with a view to keeping the relevant codes and ordinances up to date.

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