The restrictions imposed by the State in the context of the COVID-19 pandemic have resulted in a speed up of digitization of the exchange of documents between the economic operators and the Romanian public authorities.
The transfer of documents by electronic means becomes thus very challenging when it comes to data security and authenticity of deeds and signatures.
Please find here below an overview on the latest amendments on electronic transfer of documents and electronic signature.
New legal provisions
The GEO no. 39/2020 published in the Official Gazette no. 281 as of April 3, 2020 brings by information on the legal framework for the use of electronic documents, signed by an electronic signature, issued by public authorities or taxpayers / economic operators, as the case may be.
All documents bearing the electronic signature of a public authority are deemed as document on paper support bearing a handwritten signature, as traditionally delivered so far.
At the same time, public authorities and institutions must accept documents in an electronic form, bearing an electronic signature, filled / issued by the economic operators.
However, each public authority or institution shall decide upon the signature type they shall accept in order to provide online services. Such information shall be made available by each public authority & institution.
Documents shall be communicated via each authority’s webpage or, as the case may be, via email.
The Special Telecommunications Service shall provide to public authorities and institutions qualified certification services for signature of the documents delivered thereby. STS is currently drawing up a working procedure aimed to bring light in the electronic communication with public institutions and authorities.
Electronic signature: what is it?
The legal framework for the use of the electronic signature in Romania is given by the Law no. 455/2001 on the legal regime of electronic signature and of electronic documents and by the EU Regulation 910/2014 (alias « Regulation eIDAS »). These two legal texts coexist although the European Regulation is to be enforced as such in Romania.
Therefore, pursuant to the Law n° 455/2001, there are two types of electronic signatures:
- Simple electronic signature
Such signature can be found under different formats, i.e. (i) a handwritten signature affixed on a document that is afterwards scanned and transferred by electronic means, (ii) a check box on a form available on line on an Internet portal, usually used for agreement on certain terms and conditions, etc.
Such signature has a poor conclusive force as it is not capable to identify beyond any doubt the signatory.
- Extended electronic signature
The security level of extended electronic signature is much higher than that of the simple electronic signature. Such signature shall cumulatively meet the following requirements:
- It is capable to identify beyond any doubt the signatory ;
- It is uniquely linked to the signatory and its identification data ;
- It is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control
- It is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
At the same time, eIDAS Regulation provides for 3 types of electronic signature, namely:
- Simple electronic signature – the lowest security level, available in the Romanian legislation as well ;
- Advanced electronic signature – with an average security level ;
- Qualified electronic signature – the highest security level and it is assimilated to the extended electronic signature provided for by the Romanian Law no. 455/2001.
It shall be noted that qualified electronic signature shall have the equivalent legal effect of a handwritten signature in the EU States while advanced electronic signature does not have such characteristic.
This said, in our opinion, the two types of signature to be used in legal relationships that do not incur a great risk of being challenged are: simple electronic signature and advanced electronic signature. However, in order to avoid any challenge on the validity of the signature, it would be preferable to use qualified electronic signature.
It is also to be noted that in Romania certain public institutions such as the Trade Registry, the Tax Authority or the National Agency for Employment have already digitized in part or in whole their services, by giving the possibility to be sent or to provide certificates or other documents in electronic form.
Thus, for example one may require and be provided, by the Trade Registry, certificates and other documents necessary for companies in their day-to-day activities, one may carry out formalities for registering changes within the companies by filing an exclusively electronic file on the dedicated portal. Following the Trade Registry’s requirements, the concerned persons shall send the documents signed by means of an extended electronic signature (or qualified signature pursuant to the European Regulation, meaning the highest security level.
The Tax Administration (NAFA) also allows electronically signed tax returns and on-line filing thereof.
Electronic signature can also be used for filing the documents that are necessary for benefiting from technical unemployment, in accordance with the Order no. 342/2020 approved by the National Agency for Employment.
A qualified electronic signature (or extended) is also necessary for filing the file for obtaining the Certificate of Emergency Status issued by the Ministry of Economy, Energy and of the Business Environment, on grounds thereof legal entities may benefit from certain tax reliefs and credit incentives in the context of the COVID-19 pandemic.
There are in Romania electronic signature providers that are agreed by the authorities. The list thereof is available on the website of the European Commission at https://webgate.ec.europa.eu/tl-browser/#/tl/RO.
It should also be noted that one may choose any of the providers authorised at the EU level, regardless of the origin State. The list of such providers is also available at https://webgate.ec.europa.eu/tl-browser/#/
Digitization of the relationship citizen, company and authorities is finally getting back on track and its impact is expected to be most important especially when all the authorities, local authorities included shall be able to provide on-line essential services – such as delivery of urbanism certificates or other documents.
GRUIA DUFAUT LAW OFFICE
Attorneys at law (Paris & Bucharest)