As already discussed, the principle of informality in administrative pro- cedures only applies when there are no specific statutes which order otherwise. Similar to private law, administrative procedure often re- quires a written form for many legally binding activities. The most im- portant characteristic of written form is the necessity of a handwritten signature by the person who is to be legally affected by the document.73 This especially applies to those cases which have a special effect on the participants. Written form requirements tend to have several functions in these cases:74 on the one hand they are meant to ensure that a state- ment originated from the signatory (authenticity function), on the other hand they facilitate the unequivocal identification of a signatory (identi- fication function). Also, they are intended to permanently embody and guarantee its legibility (perpetuation function) and facilitate proving le- gal relations (evidence function). Furthermore, they are meant to secure a distinction between legally binding declarations and mere drafts (dis- tinguishing function) and advert the parties as to the legally binding ef- fect of the declaration (warning function).
If the written form is to be replaced by electronic forms, it must be guaranteed that all functions of the written form are contained within the specifically applied electronic form; in other words, the electronic form must have parallel functions which are legally admissible.
The requirements for electronic forms were laid down by the Signature Act (Signaturgesetz75) in 2001. The signature act implemented the European directive on electronic signatures into national law.76
The signature act distinguishes between different levels of security for electronic signatures: at the lowest level are the so-called basic elec- tronic signatures, which do not need to fulfil any further specific re- quirements. Since these are not well-suited for legally binding transac- tions and therefore are barely relevant for administrative activities they
73 Dietlein/Heinemann (note 7), 53, 54.
74 Kopp/Ramsauer (note 58), § 3a, No. 15.
75 Signature Act – Gesetz über Rahmenbedingungen für elektronische Sig- naturen – Signaturgesetz, 22.05.2001, zuletzt geọndert durch Gesetz v.
07.07.2005, BGBl. I 2005, 1970.
76 Directive 1999/93/EC on a Community framework for electronic signa- tures, of 13 December 1999, ABl. EG 2000, L13, 12.
will no further be discussed at this point.77 The second level of security contains the qualified electronic signatures as mentioned in § 2 Nr. 3 signature act. Qualified electronic signatures must rest upon a certificate issued by a certification provider and fulfil certain requirements which are contained in §§ 5-14 signature act. The certificate must, above all, remain revisable for the duration of its validity plus an additional five years after expiration of its validity. Lastly, the highest security level of- fers qualified electronic signatures by an accredited provider as ordered in §§ 2 Nr. 3, 15 signature act. These signatures must generally fulfil the same requirements as qualified signatures. However, in this case the signature provider must also undergo a preliminary test conducted by an agency, in which the compliance with all requirements of the signa- ture act is examined.78
The 3rd reformational law on administrative statutes brought a general equality clause with it, which was laid down in § 3a para. 2 VwVfG.79 According to it, a statutorily ordered electronic form can generally re- place written form if the electronic document is marked with a qualified electronic signature in the sense of the signature act. An exception from this rule is permissible only if a statute has explicitly forbidden the use of electronic form in a specific case.80 The implementation of such a general clause as in § 3a para. 2 VwVfG has made a comprehensive ad- aptation of all administrative statutes superfluous. Adaptations were necessary in specific administrative statutes, however, only if the legisla- tor intended to explicitly bar the application of an electronic form. One such exception can be found in administrative acts, which can only be issued electronically if a durable revision of the (rightfully) certified electronic signature can be guaranteed according to § 37 para. 4 VwVfG. Only accredited qualified electronic signatures fulfil this re- quirement today.81
77 Bundesamt für Sicherheit in der Informationstechnik, E-Government- Handbuch, Modul Rechtliche Rahmenbedingungen für E-Government, 14, online available at <http://www.e-government-handbuch.de/>.
78 Art. 15 Signature Act.
79 Dietlein/Heinemann (note 7), 53, 54.
80 Dietlein/Heinemann (note 7), 53, 55.
81 Bundesamt für Sicherheit in der Informationstechnik, E-Government- Handbuch, Modul Rechtliche Rahmenbedingungen für E-Government, 52, online available at <http://www.e-government-handbuch.de/>.
If the electronic form is not explicitly prohibited by statute, one can as- sume that it is generally admissible for all declarations which required a written form in the past to be declared electronically under use of a qualified electronic signature.
The question whether the administration is allowed to demand a quali- fied accredited signature from individual citizens has yet to be settled.82 The prevailing opinion argues in favour of such a disposition by stating that § 3a para. 2 VwVfG only sets a minimal standard.83 The statute does not have an absolute character, which is why the administration should be permitted to demand higher standards in individual cases.84 There are, however, problematic points in this argumentation, for cer- tain historic, systematic and teleological aspects oppose it. From a his- torical point of view it can be stated that § 3a VwVfG is a statute which was passed after the signature act. The legislator therefore already knew the difference between qualified electronic signatures and qualified ac- credited electronic signatures, yet only the term qualified signature was inserted into § 3a VwVfG. Contemplating the European fundamentals of the signature act it seems doubtful to what extent the requirement of a qualified certified electronic signature is compatible with them.85 Lastly, it is also barely combinable with the purpose of the implementa- tion of electronic communication into the administrative routine to demand accredited qualified signatures when the legislator itself saw the application of mere qualified signatures as sufficient. Accredited quali- fied signatures are also unnecessarily laborious and costly for its users, and since the accreditation process brings along additional costs for the signature certificate provider, accredited qualified signatures are usually significantly more expensive than qualified ones. Therefore, the applica- tion of qualified signatures should suffice for administrative activity as long as there are no drastic security objections hindering the possibility of their use.
82 Bundesamt für Sicherheit in der Informationstechnik, E-Government- Handbuch, Modul Rechtliche Rahmenbedingungen für E-Government, 53, online available at <http://www.e-government-handbuch.de/>.
83 Dietlein/Heinemann (note 7), 53, 57.
84 Dietlein/Heinemann (note 7), 53, 57.
85 A.A. Dietlein/Heinemann (note 7), 53, 57.