SWITZERLAND Law and Practice Contributed by: Lukas Morscher, Lukas Staub and Jil Eichenberger, Lenz & Staehelin
While parties are generally free to determine contract terms, the TCA mandates that agree - ments be in writing and include key elements such as general commercial conditions, service descriptions, technical specifications and imple - mentation terms. For agreements with market- dominant providers, fees must adhere to princi - ples of non-discrimination, cost orientation and transparency. 8. Trust Services and Digital Entities 8.1 Trust Services and Electronic Signatures/Digital Identity Schemes The CO sets out the principles governing e-sig - natures and refers to the Electronic Signatures Act (the “ESA”) for the technical details, which in turn refers to its respective ordinance. An e-signature is defined as electronic data that is joined or linked logically to other electronic data and which serves to authenticate the other data. The ESA distinguishes four levels of e-signa - tures: • regular e-signatures; • advanced e-signatures; The authenticated e-signature, in combination with an authenticated time stamp, is deemed equivalent to a handwritten signature. While regulated e-signatures are not deemed equiv - alent to handwritten signatures, they may be used, for example, to evidence the authenticity of electronic invoices or to guarantee the integ - rity of electronically archived documents. Both authenticated and regulated e-signatures can only be obtained from a recognised provider of • regulated e-signatures; and • authenticated e-signatures.
certification services. A list of all of the provid - ers in Switzerland is available on the competent federal authority’s website. Authenticated e-signatures are treated like handwritten signatures. Therefore, e-signatures cannot be used where the law sets out additional formal requirements, for example, in the case of a will (which must be handwritten in its entirety) or real estate deals (requiring a public deed). Additionally, authenticated and regulated e-sig - natures are only available for natural persons, not for legal entities. However, natural persons can electronically sign on behalf of a legal entity using their personal authenticated e-signature. In addition, entities in possession of a unique business identification number may obtain a regulated electronic seal, which is essentially equivalent to a regulated e-signature. Although e-signatures were introduced more than ten years ago, their use in Switzerland is limited. To date, only a small percentage of the population has an e-signature. This may be explained by Swiss law’s freedom of form, ena - bling parties to contract without formal require - ments in most cases, as well as the relatively high cost and complicated application of e-sig - natures and the prepayment policy applied by many online businesses, shifting the risk to the customer, who needs to trust that the other party will indeed fulfil its contractual obligations. Since payment has already been received, online busi - nesses generally do not need to verify the cus - tomer’s identity. Electronic Identification After the rejection of a first proposal for an act governing electronic identification services in a popular vote in 2021, the Federal Council final - ised a new draft bill and submitted it to Parlia- ment for consideration in 2023. The new e-ID Act
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