A new law facilitating and modernising administrative processes became applicable on 4 July 2023. It is Law No 9/2023, which revises Government Emergency Ordinance No 41/2016 and offers more advantages to citizens in relation with public authorities, business and commerce. These include in a brief enumeration: single forms and applications for public services, electronic versions of identity documents, abolition of certified copies, free copying of documents, alternative ways of paying taxes and duties.
A key effect of this law is that public authorities must recognise documents in digital format, which have been signed with a qualified electronic signature, without requiring the submission of original documents or paper copies.
Thus, authorities are obliged to accept “qualified or advanced electronic signature as defined in Article 3(11) and (12) of Regulation (EU) No 910/2014 – eIDAS”.
The eIDAS Regulation establishes a common legal framework for electronic signatures in the European Union. It recognises three levels of electronic signatures: simple electronic signature (SES), advanced electronic signature (AES) and qualified electronic signature (QES).
It respects the principle of technology neutrality, allowing users to choose any technology that meets legal requirements. Therefore, legislation and regulation does not impose any particular technology and does not favour or disadvantage any technology. Article 25(1) stipulates that an electronic signature cannot be rejected as evidence in court simply because it is in electronic format or does not meet the standards of a QES.
The three types of electronic signatures have different legal value and are regulated in Art. 3 paras. 10-12, as follows:
i. “electronic signature” (SES) means data in electronic format, attached to or logically associated with other data in electronic format and which is used by the signatory to sign;
Simple “electronic signature” is a term that refers to a way of confirming a person’s identity and agreement to a document or transaction in a digital environment. An electronic signature can be a set of characters, a numeric code, a scanned image of the manual signature or a biometric fingerprint. Applications such as those issued by companies like Adobe or Docusign can be used. To be valid, an electronic signature must be attached to or logically associated with the electronic data that the person is signing. For example, if you send an email with an electronic signature, it must be linked to the content of the email and to your email address.
ii. “Advanced electronic signature” (AES) is an electronic signature that meets the requirements of Article 26 of the eIDAS Regulation.
According to the Regulation, it must (a) uniquely refer to the signatory, (b) allow the identification of the signatory, (c) be created using electronic signature creation data that the signatory can use, with a high level of confidence, solely under his/her control; and (d) be linked to the data used for signing so that any subsequent change to the data can be detected.
This signature is not yet widely used in practice because, although there are various ways of creating an advanced electronic signature, not all of them are accepted and regulated by the authorities in European countries. Thus, the public institution/person who applied the signature has the burden of proof and has to prove that the 4 conditions set out in Art. 26 of the eIDAS Regulation were met at the time of signing.
The reason for inserting this definition is that one of the objectives of the (eIDAS) Regulation is to facilitate the use of electronic signatures in the Digital Single Market. Therefore the legislator has not imposed a particular technology or method to achieve an advanced electronic signature, but leaves it to the Member States to decide what legal value they will give to this type of signature, depending on the context and the purpose for which it is used.
One of the potential advantages of advanced e-signatures is that they are not tied to a specific device or physical medium, but to the identity of the person applying them. This regulation will in the future allow adaptation to technological developments and to the specific needs of different sectors and fields of activity, and in the event that technology capable of ensuring uniform recognition and verification at all times for such advanced signatures emerges.
iii. “Qualified electronic signature” (QES) means an advanced electronic signature that is created by a qualified electronic signature creation device and is based on a qualified certificate for electronic signatures;
It is the latest type of electronic signature recognised by the eIDAS Regulation and has the same legal value as a holographic signature in all EU Member States.
In order to have a qualified e-signature, it is necessary to use a qualified certificate, which is issued by a trusted service provider that is accredited by an EU Member State and included in the EU Trusted List (ETL). The trusted service provider is responsible for verifying the identity of the user and guaranteeing the integrity of the signature created.
The most important advantage of a qualified e-signature is that one can easily and securely verify that an e-signed document is authentic and genuine using Adobe Acrobat Reader, which is free and compatible with all operating systems. This application accesses a common EU-wide database containing a list of qualified electronic signature service providers (EUTL) and with this the application can confirm that the electronic signature in the document is valid and compliant with European standards, ensuring fast verification in any European jurisdiction.
One of the intended effects of the eIDAS Regulation is to facilitate cross-border transactions within the EU’s Digital Single Market. To achieve this, eIDAS ensures that every form of electronic signature is admissible as evidence in EU courts and is not denied legal effect simply because it is in electronic form.
The eIDAS Regulation does not dictate when a signature is required for a transaction or what type of signature is required. This means that each EU Member State must specify in its legislation when a particular transaction (i) cannot be signed electronically or (ii) requires a higher form of electronic signature, such as an advanced or qualified electronic signature. Thus, it is important to check the legal requirements applicable to each type of transaction before using an electronic signature.
The relevant national legislation is Law 455/2001 on electronic signature, which regulates “simple” electronic signature (SES) and extended electronic signature, which must meet almost identical criteria to qualified electronic signature (QES). However, this is an outdated piece of legislation, issued before the entry into force of the eIDAS Regulation, and I believe that it is necessary at least to harmonise the terminology of Romanian legislation with the European Regulation, even if the latter is directly applicable, in order to avoid confusion and lack of clarity in practice.
There are cases in Romanian legislation where electronic signatures cannot be used or include explicit requirements, such as holographic signatures in notarial procedures, which are usually not compatible with electronic signatures or the management of digital transactions.
These cases of prohibition of the use of electronic signatures are expressly provided for by Romanian law, as follows:
i. Agreements that transfer or constitute real rights to be registered in the land register (art. 1244 of the Civil Code) or dwellings and individual units (art. 101 of Law no.114/1996 on dwellings).
ii. Acts concerning family relations or inheritance such as prenuptial agreements (art. 330 of the Civil Code), liquidation of the matrimonial regime of legal community (art. 355 of the Civil Code), act of partition between spouses during legal community (art. 358 of theCivil Code), the sale of the inheritance or part of it (art. 1747 of the Civil Code), the renunciation of the inheritance (art. 1120 of the Civil Code), the holographic and authentic will (art. 1041 and art. 1043 of the Civil Code), all of which require an authentic form or holographic signature under penalty of nullity.
iii. Various civil contracts for which ad validitatem authentic form is expressly provided: donation (art. 1011 of the Civil Code), real estate mortgage (art. 2378 of the Civil Code), movable mortgage (art. 2388 of the Civil Code), maintenance contract (art. 2255 of the Civil Code), trust (art. 2288 of the Civil Code).
iv. In company law, a handwritten signature is required for the memorandum of association if: (a) immovable property forms part of the contribution to the company’s share capital; the establishment of general or limited partnerships; or (c) a joint-stock company is established by public subscription, affidavits given by the founders/directors/members of the board of directors attesting to the fulfilment of the legal conditions laid down by Romanian law (art. 69 of Order no. 2594/2008 on the procedure for keeping the commercial registers, making registrations and issuing information), affidavits from natural and legal persons who are not registered for tax purposes in Romania certifying that they have no tax debts (art. 69 of Order No. 2594/2008 on the procedure for keeping trade registers, making entries and issuing information)
We believe that this legislative initiative introducing the mandatory acceptance of electronic signatures in public institutions from 4 July 2023 is beneficial for citizens, business and public administration, as it will simplify and speed up administrative processes, reduce costs and risks related to the handling of paper documents, increase transparency and information security and contribute to the development of the digital economy.