Contributor: Arnecke Sibeth Dabelstein, Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB

Author: Christine Kranich, LL.M., Katja Brecke, LL.M., Ulrich Steppler, LL.M

1. Is there specific legislation in Germany ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?

Currently, there is no specific legislation in Germany ruling the using of documents executed with the use of digital platforms or any electronic signatures by the German Civil Aviation Authority (in German, “Luftfahrt-Bundesamt” or abbreviated “LBA”). However, submitting documents that are executed with electronic signatures will be accepted by the LBA if the document has been signed via DocuSign. Signatures created with DocuSign allow the specification of an ID code on the signature page. These ID codes can be traced back to DocuSign and provide proof of the authenticity of the signature.

If any person wants to submit a document to the LBA with an electronic signature not signed via DocuSign, the person should first check with the LBA whether that would be acceptable. The legal department of the LBA would, in such case, check whether such an electronic signature application is credible and the authenticity of the signatures secured.

In any event, it is not a way to submit documents that need to be provided in notarized (and if the notarization comes from a foreign notary also apostilled) form. This is in the particular case with the German Aircraft Mortgage Register, which is not at the LBA but at the Local Court Braunschweig and has much stricter rules in relation to the form of documents that need to be submitted to it in order to register a mortgage on an aircraft.

Furthermore, the official website of the LBA recommends submitting documents by using the postal service due to unencrypted communication via e-mail or fax, especially in the perspective of submitting inquiries containing personal data. The LBA further recommends submitting applications and documents by mail in their original form, especially when it comes to contracts, in order to ensure safety due to several hacker attacks in connection with the current war of Russia against Ukraine.

2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?

Not applicable; see statement to 1) above.

3. Does the Aviation Authority in Germany use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?

The LBA does not have a digital register for Aircraft Documents and Aircraft Lease Documents. However, the LBA is currently

developing one, but solely for internal purposes. Aircraft LeaseAgreementsareanywaynotregisteredinGermany,but a copy of each Lease Agreement (which could have electronic signatures) has to be submitted to the LBA.

The German Aircraft Mortgage Register is not yet electronic either. Moreover, whereas the aircraft registry with the LBA cannot be freely searched due to data protection laws, the Mortgage Register is searchable by third parties. However, until recently, a search request had to be sent by fax. Since this year, such requests may be submitted by e-mail. However, the results will still be sent by the Mortgage Register by fax and mail and not electronically. For registration and cancellation of an aircraft mortgage, most documents have to be submitted to the German Aircraft Mortgage Register in original (wet ink) form, and some even notarized and apostilled.

4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in Germany?

Not applicable. See statement number three above.

5. Do the courts of Germany consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?

Based on the eIDAS Regulation of 23 July 2014 on the harmonised electronic use and identification of e-signatures, digital signatures are generally recognised among the member states of EU. According to that Regulation, simple electronic signatures (SES) and advanced electronic signatures (AES) may not be denied legal effect and admissibility as evidence in legal proceedings solely because they are available only in electronic form.

Qualified electronic signatures (QES) have the same legal effect as handwritten signatures. If they are recognized in one EU Member State, they are also recognised as QES in all other Member States (Art. 25 eIDAS). However, in some instances, the local laws are more demanding.

If, in Germany, the law requires notarization of a document/ agreement, an electronic signature would not suffice (section 128 “Bürgerliches Gesetzbuch” or abbreviated “BGB”).

As soon as the law legally regulates the written form, a handwritten signature is required (section 126 BGB). However, this can be replaced by the parties with a QES (section 126a BGB). In doing so, each party to the contract must provide an identical document with its QES. An AES or SES, on the other hand, does not satisfy the written form requirement (see also answer to question 8).

6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Germany?

Since 1 January 2022, the use of the German digital platform (in German: “Besonderes elektronisches Anwaltspostfach” and abbreviated “beA”) is mandatory for lawyers as well as for courts as that courts have to accept documents sent by lawyers via beA. However, courts are not yet obligated by law to communicate with lawyers via beA; thus, courts may still send documents by regular mail. By using beA, a lawyer is able to transmit legal documents such as lawsuits, pleadings and other procedural documents digitally to all courts in Germany, except to the Federal Constitutional Court (Bundesverfassungsgericht). In addition, the courts use the beA as well in order to process documents for the lawyers involved.

7. Do the courts of Germany accept procedural documents executed digitally? Is there any specific certification required? Does Germany make any distinction between official digital signatures and private digital signatures?

Legal documents must be executed digitally and submitted via beA, which is the only way to submit documents to the court or opposing lawyers. The beA signature card must be set up by the Federal Bar Association (in German, “Bundesrechtsanwaltskammer” or abbreviated “BRAK”) for every lawyer admitted to practice in Germany. It ensures the authenticity of the participants in this transmission channel through a secure directory service. P.O. box address and access authorisation are only assigned by the BRAK once the lawyer’s admission has been verified. Therefore, a password and chip card are required.

8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?

In general, all contracts can be concluded electronically unless the German Civil Code (in German “Bürgerliches Gesetzbuch” or abbreviated “BGB”) requires a written form, as section 126 para. 3 BGB stated: the written form may be replaced by electronic form unless the statute leads to a different conclusion. If a written form is prescribed by statute, the document must be signed by the issuer with its name in its own hand or by its notarial certified mark (section 126 para. 1 BGB). Notarial recording replaces the written form (section 126 para. 4 BGB).

If the electronic form is to replace the written form prescribed by statute, the issuer of the declaration must add its name to it and provide the electronic document with a qualified electronic signature (section 126a para. 1 BGB). In the case of a contract, the parties must each provide a counterpart with such an electronic signature as described in the preceding sentence (section 126a para. 2 BGB).

Thus, the legislation distinguishes between so-called simple electronic signatures (SES), advanced electronic signatures (AES) and qualified electronic signatures (QES).

For the creation of a simple electronic signature, it is sufficient if the signature is inserted digitally into the document or if the name is reproduced at the end of the text. The signature must be decipherable and assignable to a specific person; e.g., the indication “lawyer” is not sufficient due to the lack of a name. The signature must ensure that the person identified by the secure means of transmission is identical to the person who assumes responsibility for the content of the electronic document with the reproduced signature. Since they do not have to be forgery-proof or firmly linked to the other data, they have no security value. This includes, for example, a scanned signature, which can be forged or removed at any time, but also, in the case of e-mail, the name data in the address field or the mere mentioning of a name in the text.

An advanced electronic signature requires the following:

The signature is uniquely attributable to the signatory. The identification of the signatory is possible. The signature is created using electronic signature creation data that the signatory can use with a high degree of confidence under its sole control. The subsequent modification of the data can be detected because the document is encrypted due to using a secret private key (cf. Art. 26 eIDAS Regulation).

The electronic form is based on a cryptographic encryption process, which is characterised by the use of two different keys, namely the secret private key and the public key, which is accessible to everyone. Both keys are contiguous, but the public key cannot be used to calculate the private one.

The process is as follows: The so-called hash value is calculated from the text of the document to be encrypted according to a known algorithm, which compresses the message. The calculated hash value is now encrypted with the private key of the signer. The unencrypted text is transmitted together with the encrypted hash value to the recipient, who can open the encrypted, compressed text with the signature verification key. The recipient receives the matching verification key either from the sender or from trust service providers, where this key is kept retrievable. The recipient can now decode the encrypted hash value with this public key and is then able to calculate the hash value from the unencrypted text using the known algorithm and compare this value with the decoded hash value transmitted to it. If these values match, the text has not been subsequently changed because otherwise, the hash value would also have changed.

A qualified electronic signature has all the characteristics of an advanced electronic signature and some additional requirements, which are explained below.

It is defined as “an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures” (Art. 3 No. 12 eIDAS Regulation).

Only trust service providers may issue the aforementioned qualified certificates, which additionally fulfil the requirements of the eIDAS Regulation (cf. Art. 3 No. 19 eIDAS Regulation). The certificates are electronic attestations that link the public signature verification key to the natural person and confirm the identity of a person. Trust service providers often require state recognition. Pursuant to § 126a paragraph 1 of the BGB, a declaration is required from the issuer that the electronic document is to be provided with a qualified electronic signature. For a signature to meet the requirements of Section 126a Para. 1 BGB, it is necessary on the one hand that the signature is based on a valid qualified certificate. On the other hand, the signature must be created with a secure signature creation device. The necessary security is ensured by the fact that the signature key can only be applied after the holder has identified itself, for example, by means of a smart card and a password or by means of a smart card and one or more biometric features.

Qualified electronic signatures for which a qualified certificate of a Member State of the EU is available are recognised as qualified electronic signatures in all other Member States; such signatures are thus equivalent to domestic qualified signatures (Art. 25 (3) eIDAS Regulation).

In contrast to the simple signature, creating a qualified signature, such as with beA, is much more demanding. There is a need for specific technical equipment as well as some effort to set up the card, in particular, the authorization process.

Furthermore, for the effectiveness of signing electronically, the parties also need to fulfill the following requirements:

The parties must declare that they sign the document electronically. The parties are aware of the undersigning content. The party that has drawn up the agreement must keep a record of the signing process.

In summary, the effectiveness of electronic signatures depends on the respective contract/document that will be signed and the German law requirements provided it is a contract/document governed by German law.

9. Can foreign entities not located in Germany execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Germany? Are there any other formalities required?

Aircraft Lease Agreements may be submitted to the LBA with electronic signatures if that is permitted according to the applicable law of the lease agreement.

In relation to aircraft mortgage documents, please see our answer to number three above.

10. Does the Aviation Industry in Germany usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?

The use of blockchain technology is currently in development; e.g., Lufthansa Industry Solutions has launched the initiative “Blockchain for Aviation” (BC4A). The idea is to create a documentation system, especially for the maintenance area as well as for substituting printed-paper documents. The use of Aircraft Documents in electronic form has become more and more popular; however, there are still certain documents, in particular the on-board documents, which are needed in paper form.

11. Are there any Notary or Apostille requirements in Germany? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?

According to section 128 of the BGB, there are some declarations that must be notarized, such as contracts in real estate law and in the law of succession. An electronic execution instead of a notarial one would lead to ineffectiveness; thus, documents and declarations that have to be notarized according to German law cannot be executed electronically.

As stated before, certain documents that need to be provided to the Aircraft Mortgage Register in a notarized (and apostilled, as applicable) form cannot be executed electronically by the parties.

a. Has Germany implemented the e-Apostille program?

Germany has still not introduced the e-Apostille program due to security concerns.

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