Legal Alert: a new regulation regarding the application of the electronic signature at the level of authorities

On 7 April 2020 Government Emergency Ordinance no. 38/2020 on the use of electronic documents at the level of public authorities and institution (“GEO 38/2020” or the “Ordinance”) was published in the Official Bulletin. It regulates the general framework in which authorities and public institutions can use the electronic signature and electronic documents.

Types of electronic signatures according the European legislation

Regulation (EU) no. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) regulates three categories of electronic signatures, depending on the level of trust associated with the signatory’s identity, respectively (i) simple, (ii) advanced and (iii) qualified electronic signatures.

  • Electronic signature means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;
  • Advanced electronic signature means an electronic signature which (a) is uniquely linked to the signatory; (b) is capable of identifying the signatory; (c) is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and (d) is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
  • Qualified electronic signature corresponds to the extended electronic signatures regulated by the Romanian legislation and means 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.

Although Law 455/2001 on the electronic signature does not expressly regulate the advanced electronic signature, the eIDAS Regulation is directly applicable and supersedes the internal law.

The release of documents in electronic format by certain authorities

Pursuant to GEO 38/2020, the documents issued in electronic format by public authorities and institutions will be signed with a qualified electronic signature, as a rule.

By way of exception, the type of electronic signature applicable to internal documents issued in electronic format by the public authorities and institutions can be established by each authority on a case by case basis.

According to the Ordinance, the documents indicated therein and issued in electronic format by public authorities and institutions signed with a qualified electronic signature (therefore with an extended electronic signature) are assimilated to authentic deeds.

An authentic deed is that deed which is elaborated in compliance with all the formalities required by the law, such form being mandatory for example, in case of property sale deeds (e.g., the sale agreement for a real estate property) or in case of other types of deeds in relation to which such requirements is expressly stipulated by the law (e.g., the proxy given for the execution of a real estate property sale agreement).

The receipt by certain authorities of deeds signed with electronic signature

Pursuant to the Ordinance, the authorities have the obligation to receive deeds signed with electronic signature.

The public authorities and institutions establish the type of electronic signature that natural or legal persons should use in order to benefit from an online service provided by the respective authorities, in line with the provisions of the eIDAS Regulation.

Furthermore, the Ordinance lays down that deeds signed with advanced electronic signature that are sent by means of substantial or high authentication level mechanisms are assimilated, in terms of their conditions and effects, with private signature deeds.

What are the actions intended by the authorities according to the Ordinance?

  • In view of receiving electronic documents, public authorities and institutions will provide own portals or will use such instruments provided by third parties;
  • If the electronic documents cannot be received by using the aforementioned method, the public authorities and institutions will use electronic mail (e-mail).
  • In order to ensure transparency, the public authorities and institutions have the obligation to publish online, most probably on their own websites, information on the accepted means of receiving electronic documents, so that interested persons should know in advance how to communicate with the authority. If the authorities accept to receive documents electronically, they have the obligation to issue a response using the same means, except when otherwise requested by the relevant natural or legal person.
  • Within 15 days as of the coming into force of the Ordinance, public authorities and institutions will issue the necessary administrative deeds that will establish the type of applicable electronic signature that natural or legal persons should use in order to benefit from an online service provided by the respective authorities. Therefore, it is to be established whether natural or legal persons may also use other types of electronic signatures that would have the same effects as the extended electronic signature, and also what the requirements imposed by each authority would be.

What exceeds the Ordinance’s applicability?

GEO 38/2020 does not apply to deeds issued or received by the Parliament, the President of Romania and the judiciary authorities (courts of law, State Attorney Offices or the Superior Council of Magistracy). As such, they do not have an obligation to receive deeds signed with electronic signature.

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