Romania: Importance of obtaining an electronic signature during the state of emergency

Decree no. 195 of the President of Romania dated 16 March 2020 declaring the state of emergency in the territory of Romania (the “Decree״) has imposed various measures aimed at limiting the public’s direct access to common space in the offices of public authorities, as well as at maximising the use of electronic means of communication.

According to the Decree, during the state of emergency, central and local public administration authorities are to organise their work so as to avoid direct contact between persons as much as possible. For example, as a result of the measures stipulated by the Decree, the activity of the National Trade Registry Office and the trade registry offices attached to courts is to be carried out exclusively by electronic means, i.e. applications for registration of amendments and the documents attached thereto are to be in electronic form with an extended electronic signature.

Although the exceptional measures following the declaration of the state of emergency in Romania have been taken by public authorities in order to protect the public’s health and to fight the spread of the COVID-19 virus, they may cause the fulfilment of certain legal obligations to be delayed or even impossible if the party under the obligation does not have the logistical means necessary to manage business relations at a distance.

Although legislation applicable to electronic signature has been in force since 2001, the current background is increasingly revealing the benefits of having such a signature and drawing attention to the notion of “extended electronic signature based on a qualified digital certificate״.

The issuance and use of an electronic signature in Romania are regulated by Law no 455/2001 on electronic signature (the “Electronic Signature Law״) as well as by Decision no 1259/2001 regarding the approval of the technical and methodological rules for the enforcement of Law no 455/2001 on electronic signature.

The Electronic Signature Law distinguishes between two types of electronic signature as follows:

• Simple electronic signature: data in electronic form (i.e. representations of information in a conventional form suitable for creating, processing, sending, receiving or storing it by electronic means), which are attached to or logically associated with other data in electronic form and which serve as a method of identification.
• Extended electronic signature: that electronic signature that cumulatively fulfils the following conditions: (i) it is uniquely linked to the signatory; (ii) it ensures the identification of the signatory; (iii) it is created by means controlled exclusively by the signatory; (iv) it is linked to the data in electronic form to which it relates in such a way that any subsequent modification of such data is identifiable.

Therefore, a document in electronic form signed with an extended electronic signature (based on a qualified certificate not suspended or revoked at that time) is equivalent, in terms of its conditions and effects, to a document signed in a person’s own hand.

Specifically, in cases where written form is required as a condition of evidence or validity, the document meets this requirement if an extended electronic signature issued in accordance with the Electronic Signature Law has been incorporated into, attached to or logically associated with it. In other words, an extended electronic signature issued based on a qualified digital certificate provides legal validity to the signed documents, as opposed to the simple electronic signature, which is created based on a simple digital certificate and has no legal validity.

For this reason, public authorities that permit the use of an electronic signature and the transmission of documents in this way (e.g. the Territorial Labour Inspectorate, the National Agency for Tax Administration, the Trade Registry, the Official Gazette) accept only documents bearing an extended electronic signature issued based on a qualified digital certificate.

The legal validity of an electronic signature is also recognized by courts. Thus, according to Article 25 of EU Regulation 910/2014, “an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures״. Also, a qualified electronic signature based on a qualified certificate issued in one Member State is recognized as a qualified electronic signature in all other Member States.

The procedure for obtaining an extended electronic signature is relatively simple. An application is made to a qualified supplier (e.g. CertSign, DigiSign) by filling in an online registration form and sending it to the given e-mail address, along with a copy of the applicant’s identity document. After the documents have been transmitted, the supplier issues an invoice for payment, together with the documents necessary for issuing the extended electronic signature. It is very important to note that if the signed documents are sent to the supplier by courier, the standard statement must be authenticated by a notary public.

In conclusion, given the fact that more and more public authorities have been constrained by the circumstances caused by the state of emergency declared in Romania to resort exclusively to the transmission and submission of documents in an electronic format (with an extended electronic signature), it seems to us that obtaining an electronic signature is essential to business operations even under the best conditions. However, this means of signing documents is even more important under current circumstances and can even be used in transactions with contractual partners.