News on the German Evidence Act

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On 11 January 2024, the Federal Ministry of Justice (BJM) submitted a draft bill for the Bureaucracy Relief Act to the Bundestag. Part of the draft is an amendment to the Evidence Act (NachwG): The qualified electronic signature should - under certain conditions - fulfil the requirements for the obligation to provide proof.

Under the draft bill, an employment contract in electronic form (Section 126a German Civil Code), which contains the essential contractual terms and conditions as well as the other information required by the NachwG (Section 2 para. 1 - 4 NachwG) and has been sent to the employee in a printable format, should fulfil the requirements of the NachwG. In this case, it would not be necessary in future to provide additional written proof of the working conditions. The electronic form is excluded for persons working in the economic sectors and industries listed in Section 2a of the Act to Combat Illegal Employment.

Unlike the CDU/CSU parliamentary group's motion, the BJM's draft is significantly less focused on digitalisation. This is because it only makes an exception to the written form requirement of the NachwG if the contracting parties have concluded an employment contract with a qualified electronic signature that sets out the essential contractual conditions in accordance with Section 2 para. 1 and the other information required in the NachwG (Section 2 para. 2- 4 NachwG).

If the contracting parties have previously concluded a contract that does not contain the essential terms and conditions pursuant to Section 2 para. 1 NachwG - regardless of whether this is in written, (qualified) electronic form or informal - proof of the essential terms and conditions of the contract (Section 2 para. 1 NachwG) may still not be provided electronically. Instead, the written form requirement remains in place.

In view of the fact that the draft represents significantly less progress and less bureaucratic relief than the CDU/CSU parliamentary group's draft bill, it is to be hoped that the January 2024 draft bill will be amended as part of the legislative process.

You can find the full draft bill here (German language).