Electronic signature- meaning and impact on the business environment during Covid-19 pandemic

The Decree of the Romanian President 195 of 16 March 2020 regarding the state of emergency in Romania imposed various measures, including the limitation of the public’s access in the spaces of the public authorities as well as the use of the electronic means of communication with them.

In order to avoid the direct contact among people, the local and central authorities in Romania took various measures in order to respect the social distancing.  As an exemple, the activity of the Commercial Registry and its territorial offices continues in respect of the registrations for natural and legal persons which are registered with the Commercial Registry, but all such registrations are made in electronic form, both on portal of the National Office of the Commercial Registry (”NOCR”) (portal.onrc.ro) or via e-mail, the relevant address being available on the website of NOCR (www.onrc.ro).

What is the electronic signature?

The issuance and the use of the electronic signature are both regulated by the Law 455/2001 regarding the electronic signature (“Law 445”) together with the Decision no. 1259/2001 regarding the approval of the technical and methodological norms for the application of Law 455/2001 regarding the electronic signature.

Two (2) typyesof electronic signature are being stipulated by Law 455, namely:

  • The simple electronic signature which represents data in electronic form (data being representations of information in a conventional form corresponding to the creation, processing, sending, receipt or storage thereof, through electronic means), the data beingattached or logically associated with other data in electronic form and which serve as an identification means. 
  • The extended electronic signature is the signature which cumulativelly fulfills the following conditions: (i) it is connected in an unique way to the signing party; (ii) it ensures the identification of the signing party; (iii) it is created, by means, exclusivelly controlled by the signing party; (iv) it is connected with the data in electronic form, to which it relates in such a way so that any subsequent modification thereof is identifiable.

What is the legal regime of the documents bearing an electronic signature ?

  • Any document to which an extended electronic signature has been associated, which is based on a qualified unsuspened certificate and which is generated with the help of a secured device for the creation of an electronic signature, is assimilated, as regards its conditions and effects, with a document concluded under private signature.
  • The document in the electronic form, which has an electronic siganture associated to it and which is acknowledged by the person it is opposed to, has the same effect as the authentic act between the contracting parties.
  • Likewise, if the written form is requested as a proof or as a validity condition of a legal act, a document in electronic form fulfills such condition (either proof, or validity) if it has been associated or incorporated an extended electronic signature, in accordance with the provisions of Law 455.
  • Therefore, the extended electronic signature is required in case of all documents which can be sumbitted online with the authorities, regardless if such documents are lodged during the state of emergency or during the period when the restrictions are lifted. Asadar, semnatura electronica extinsa este necesara in cazul tuturor documentelor ce pot fi depuse online la autoritati, indiferent ca acestea se depun in timpul situatiei de urgenta sau in timpul perioadei cand restrictiile sunt ridicate.  The authorities which, to our knowledge, accept the documents bearing such type of electronic signature are: The National Fiscal Administration Authority, the Territorial Labor Inspectorate, the National Office of the Commercial Registry and the Official Gazzette.

The extended electronic signature is obtained through a simple procedure, on the basis of an application sent to a supplier of certification services (e.g. Digisign, Certsign) togethether with a copy of the personal identity card of the applicant.  A tax will be paid by the applicant on the basis of the invoice issued by the respective supplier of certification services.

The extended electronic signature is applicable also during the contentious phase.  Thus, in accordance with the provisions of article 25 of the EU Regulation 910/2014, the electronic signature has a legal effect and it is accepted as a proof during the judiciary proceedings, regardless of the fulfilment of the requirements for qualified electronic signatures.

Leaving aside the rules of the social distancing which have been imposed by Covid-19 pandemic, are there incontestable advantages for the use of electronic signature?

Even if we have started talking more and more about the electronic signature once the Covid-19 pandemic has burst, the electronic signature had already been used in dealing with certain public authorities, such as the National Agency of Fiscal Administration..  In the context of a society insuficiently digitalised, the standard form of signing documents is preferred.  Nevertheless, the electronic signature has incontentested advantages for the business environment, such as:

  1. Using resources in an efficient manner

Any document must be printed before affixing the holographing signature.  Bearing in mind the bureacracy and the commercial relations, there is sometimes the need to print a big volume of documents which implies the consumption of various equipment and assets (toner, paper, printer), as well as the time required for printing and signing them.  Sometimes, such documents must be sent by courier, which implies other costs (time and courier charges).  The electronic signature allows the quick signature of a big number of documents and sending them to the receiving party at once.

  1. Increased security

Documents bearing an electronic signature cannot be amended, as each electronic signature is protected.

  1. International recognition

We know that in European Union, a qualified electronic signature obtained in a member state is recognised as such in all other member states.

More than that, by enhancing an increased degree of security, the electronic signature is a guarantee both for foreign business partners and for foreign gouvernments. 

Until 15 May 2020, when the emergency state ceases, it is obvious that the contact with various authorities will be done through electronic signature.  It is not clear either how the restrictions will be relaxed, or how the social interaction will look like (not only with the authorites, but also with the business partners).  It is obvious that the rules regarding the social interaction will be maintained at a certain level, while the business environment will change.  As such, considering the advantages of an electronic signature, we believe that it is recommended for it to be used even more by the business environment.