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1. Legal Framework: Electronic Signatures and Art. 3bis Employment Contracts Act
Since the Law of June 3, 2007 (integrated into the Employment Contracts Act of July 3, 1978 via Article 3bis), employment contracts can be legally concluded electronically. Article 3bis stipulates that electronic employment contracts are treated the same as paper contracts, provided certain conditions are met:
- Qualified Electronic Signature (QES):
An employment contract must be signed using a qualified electronic signature under the eIDAS regulation (EU) 910/2014. Examples include the Belgian eID and itsme®. This signature holds the same legal value as a handwritten signature. - Free Choice of Parties:
Both the employee and employer must agree to sign electronically. Neither party can be forced into this method. - Written Form Requirement:
For contracts that must be in writing by law, the electronic form is considered valid, provided the conditions of Article 3bis Employment Contracts Act are followed.
2. Electronic Archiving: Quality Requirements for Archiving
In addition to the electronic signature, archiving is a critical requirement:
- Archiving Obligation:
Every electronically signed employment contract must be archived with a qualified electronic archiving service (QeA). - Definition:
A QeA is defined in the Code of Economic Law, Article I.18, points 17° and 18°. It refers to a trust service that guarantees the integrity, authenticity, durability, and accessibility of documents. - Execution:
Archiving can be done by a recognized QeA service provider under governmental oversight, or by the organization itself if it operates a QeA and complies with all legal norms. - Practical Obligations for Employers:
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- The workplace regulations must specify which QeA is used and how employees can access their contracts (even after leaving the company).
- Employees must have free and permanent access.
- Contracts must remain accessible for at least five years after the end of the employment relationship.
3. Common Misconceptions about Digital Contracts and QeA
Misconception 1: “It’s not mandatory yet.”
Although for many years no QeAs existed and the government applied a policy of tolerance, the legal obligation was always in place. Now that recognized QeAs exist, one can no longer rely on deferral.
Clarification: The previous tolerance framework did not provide absolute legal coverage; it only prevented formal sanctions. For evidentiary purposes, QeA remains essential. Without QeA, an employer risks having a contract declared invalid due to the lack of guarantees around integrity and authenticity.
Misconception 2: “We can certify our own archive.”
Many organizations think they can easily qualify their internal DMS or file system as a QeA.
Clarification: This can only be done if the internal system meets all requirements of Book XII Code of Economic Law and is formally certified. This includes audit trails, timestamps, fixity controls, and strict security. While this can be less stringent in contractual terms for internal use, the technical and organizational requirements remain identical. Without formal certification, an internal system does not qualify as a QeA.
Misconception 3: “Our provider is qualified (without proof).”
Some vendors claim they are qualified without official recognition.
Clarification: Only QeAs officially recognized by the competent supervisory authority (FPS Economy) and listed on the Belgian Trust List (tsl.belgium.be) are valid. Never rely solely on marketing claims; always ask for proof of qualification.
Misconception 4: “One-time certification is enough.”
Many believe a QeA remains compliant after initial certification.
Clarification: QeAs are subject to continuous supervision and periodic audits (biennially for third-party services, triennially for internal services). Technological and regulatory changes require ongoing monitoring. An old certification without follow-up is worthless.
Misconception 5: “Our DMS is enough for archiving.”
Many assume their Document Management System (DMS) is equivalent to a digital archive.
Clarification: A DMS manages operational documents but does not guarantee integrity, evidentiary value, or long-term preservation. A DMS can integrate with a QeA, but it cannot replace it.
Misconception 6: “The eIDAS revision will change everything.”
Some think eIDAS 2.0 will render Belgian obligations obsolete.
Clarification: eIDAS 2.0 reinforces the role of QeAs as a European trust service. Belgian obligations remain in effect, and existing ETSI standards (EN 319 511 and EN 319 512) remain unchanged. QeA will therefore become even more crucial.
Misconception 7: “We already use legal archiving.”
The term “legal archiving” is often circulated in commercial communication.
Clarification: This term has no legal basis and does not appear in any law. It usually refers to fiscal archiving (e.g., AOIF 16/2008 regarding invoices), but this is not the same as QeA. Only archiving via a QeA offers the required legal guarantees.
4. Conclusion
Digitally signing employment contracts is entirely feasible in Belgium, but only with a QES and proper archiving in a QeA. Misconceptions like “it’s not mandatory” or “our DMS suffices” can lead to false security and risks. For HR professionals, legal counsel, and compliance officers, the message is clear: QeA is not an optional luxury but a legal necessity to ensure evidentiary value and legal certainty.
References:
- Employment Contracts Act of July 3, 1978, Article 3bis (introduced by the Act of June 3, 2007).
- Economic Law Code, Article I.18, 17° and 18°.
- Regulation (EU) No. 910/2014 (eIDAS) and Regulation (EU) 2024/1183.
- ETSI EN 319 511 and ETSI EN 319 512.
