Registration of electronically signed documents: rules and precautions

Theregistration of electronically signed documents has been accepted by the tax authorities since January 1, 2021. Privately signed documents can therefore be submitted for registration in the form of a copy, subject to the exceptions provided by law.

However, this possibility does not exempt the parties from verifying the validity of the electronic signature, the specific conditions of the act concerned and compliance with any registration deadlines.

The registration of electronically signed documents is permitted

Article 157 of the Finance Law for 2021 amended Article 658 of the General Tax Code in order to draw the consequences of the development of electronic signatures.

In its current wording, Article 658 of the General Tax Code allows the formality of registration to be completed on a copy of privately signed documents signed electronically.

This provision has made permanent a practice that had grown significantly during the health crisis, when travel restrictions led businesses and legal professionals to use remote signing.

Saving a copy does not, however, mean that the original electronic document can be deleted. It remains essential to preserve the document in its original electronic format, as well as the elements that allow verification of the signatories' identities, the signing process used, and the document's integrity.

Which electronically signed documents can be registered?

The possibility provided for in Article 658 of the CGI concerns privately signed acts which must or may be subject to the formality of registration.

Depending on the nature of the operation, this may include certain related acts:

• to the transfer of equity interests;
• to the transfer of business assets;
• to operations affecting the life of a company;
• to certain leases or agreements;
• to acknowledgments of debt;
• to acts for which the parties wish to obtain a certain date with respect to third parties.

Therefore, not all electronically signed documents need to be registered. The obligation, the time frame, and the amount of fees depend on the legal and tax nature of the transaction.

This verification must be carried out before signing. A valid electronic signature cannot remedy a missed registration deadline or the failure to complete a mandatory formality.

The exception concerning certain unilateral promises of sale

Article 658 of the CGI expressly excludes unilateral promises of sale mentioned in article 1589-2 of the Civil Code.

This includes, in particular, unilateral promises relating to:

• a building or a real estate right;
• a business;
• a leasehold right covering all or part of a building;
• certain securities of companies whose assets are predominantly real estate.

Article 1589-2 stipulates that these promises must be evidenced by an authentic instrument or by a private agreement registered within ten days of their acceptance by the beneficiary. Otherwise, the promise is void.

This exclusion therefore requires particular vigilance when choosing the form of the document and its method of signature.

Electronic signature and registration: two separate controls

The tax acceptance of a copy of the document is not, in itself, sufficient to establish the validity of the electronic signature.

According to Article 1366 of the Civil Code, electronic documents have the same probative value as documents on paper, provided that:

• that the person from whom it originates can be duly identified;
• that the document be established and preserved under conditions guaranteeing its integrity.

Article 1367 of the Civil Code specifies that a signature identifies its author and signifies their consent to the obligations arising from the act. When it is electronic, it must be based on a reliable identification process guaranteeing its link to the act to which it is attached.

Therefore, a distinction must be made:

• the legal validity of the act;
• the reliability of the electronic signature process;
• the preservation of the original electronic document and its evidence;
• the completion of the tax registration formality.

The administration responsible for registration is not tasked with certifying the validity of the document or the legal reliability of the signature process used.

What are the effects of recording?

Registration primarily allows the completion of the tax formality required for certain transactions and the settlement, where applicable, of the corresponding duties.

It can also produce an evidentiary effect. Under Article 1377 of the Civil Code, a private agreement acquires a certain date with respect to third parties from the day of its registration.

However, registration does not regularize the situation:

• a lack of consent;
• the lack of authority of a signatory;
• an insufficiently reliable signature process;
• an irregularity affecting the content of the document;
• failure to comply with another legal formality.

Precautions to take before registration

Before registering an electronically signed document, it is recommended to check the following points:

1. determine whether registration is mandatory or only optional;
2. identify the relevant department and the applicable deadline;
3. verify that the document can be signed electronically;
4. use a signature process appropriate to the importance and risk of the transaction;
5. verify the identity and powers of each signatory;
6. retain the original electronic document, the signature certificate, the evidence file and the audit trail;
7. prepare the copy intended for the registration service;
8. check the amount and payment terms of any applicable fees;
9. keep proof of deposit and registration.

The printed or scanned copy of the document should not become the only copy kept. The electronic original and the data associated with the signature are essential elements in the event of a dispute.

ARST Avocats' support

Digitalization facilitates the conclusion and registration of documents, but it does not eliminate the rules of form or the applicable deadlines.

ARST Avocats' corporate law department assists companies in drafting, electronically signing and registering their legal documents, particularly in connection with corporate transactions, transfers, restructurings or the conclusion of strategic contracts.

A preliminary check makes it possible to simultaneously secure the content of the document, the powers of the signatories, the signing process and the completion of tax formalities.

Article written by Morgan Jamet