Last updated: 13 August 2024
Law No. 214/2024 on the use of electronic signatures, published in the Official Gazette on July 8, 2024, introduces significant changes to the regulations governing electronic signatures and electronic seals.This new law, which replaces several previous regulations, including Law No. 455/2001 on electronic signatures, sets new standards for their use by public authorities and legal entities.
The law will enter into force on October 8, 2024. However, other related normative acts, particularly the implementing rules, are still awaited. The purpose of this legal text is to align national legislation with Regulation (EU) 910/2014 of the European Parliament and Council, dated July 23, 2014, concerning electronic identification and trust services for electronic transactions in the internal market.
Types of electronic signatures and their legal regime
There are different types of electronic signatures:
- Simple electronic signature: ensures the identification of the signer and the link between his identity and the signed document. It has the lowest level of security and is not supported by a certificate of validity.
- Advanced electronic signature: allows the identification of the signer establishing a unique link between the signature and the signer, fostering a high degree of trust, with the signer having exclusive control over it; any subsequent modification of the signature data is identifiable.
- Qualified electronic signature: is an advanced electronic signature created using a qualified electronic signature creation device and based on a qualified electronic signature certificate. This signature has equivalent legal effects to the handwritten signature.
All types of electronic signatures mentioned above produce legal effects and can be used as evidence before the courts. The electronic legal act, signed with a qualified electronic signature or, in the cases expressly provided by law, with a simple or advanced electronic signature, produces the same legal effects as the same legal act in written form (except for authentic documents).
Legal effects of electronic signatures
A. Simple electronic signature
The document signed with a simple electronic signature has the same legal effects as a document signed with a handwritten signature, in any of the following cases:
a) in patrimonial deeds which value can be assessed in money, with a value less than half of the minimum gross salary on the economy at the date of signing the deed;
b) the electronic document signed with a simple electronic signature is acknowledged by the person against whom it is enforceable. Such acknowledgement can also be accounted for unequivocal execution in whole or in part, by the party challenging the simple electronic signature, of the obligations arising from the document in electronic from;
c) if both parties are professionals within the meaning of Law No. 287/2009 and have expressly agreed, under a document signed with a handwritten signature or qualified electronic signature, that they would vest the simple electronic signature with the legal effects of the handwritten signature.
B. Advanced electronic signature
The electronic document signed with an advanced electronic signature produces the same legal effects as a document signed with a handwritten signature, in any of the following cases:
a. the legal document was signed with an advanced electronic signature created with an electronic signature certificate issued by a public authority or institution in Romania or by a qualified trusted service provider;
b. the electronic document is acknowledged by the person against whom it is enforceable. Such acknowledgement can also be accounted for unequivocal execution in whole or in part, by the party challenging the advanced electronic signature, of the obligations arising from the document in electronic from;
c. the parties have expressly agreed, under a distinct document, signed with a handwritten signature or with a qualified electronic signature, that they would vest the advanced electronic signature with the legal effects of the handwritten signature.
In legal relationships where the two parties are professionals, such document can be signed with an advanced electronic signature.
C. Qualified electronic signature
An electronic document signed with a qualified electronic signature is assimilated to a document signed as a private deed, while an electronic document issued by a public authority or institution signed with the same type of signature or bearing an electronic seal is considered an authentic document.
If the written form is required as a condition for the validity of a legal act, the electronic document fulfils this condition if it is signed with a qualified electronic signature or an advanced electronic signature (provided that the latter meets the conditions to produce same legal effects as the handwritten signature).
It should be noted that legal documents in which one of the signers is a professional can be proved even without a signed document in electronic form.
If a document is concluded in electronic form, its proof can be made by any type of electronic signature applied to it. If the law requires the conclusion of a legal act in an authentic form, then its authentication is necessary according to the applicable legal provisions, as the provisions of this law are not applicable in this case.
Electronic signature certificate and trust service providers
The certificates attesting the validity and security of the electronic signature can be qualified and unqualified. Depending on the type of electronic signature, they will contain different information required by law. Certificates are issued by qualified trust service providers. The certificate issued by a foreign trust service provider is recognized and has the same legal value as a certificate issued by a domestic trust service provider. There is a list of qualified and unqualified trust service providers at national level.
Each service provider has the obligation to keep an electronic register (public, available online) and which includes all the certificates issued. This register must contain: (i) the exact date and time of the issuance and expiration of the certificate, as well as, as the case may be, the exact date and time of the suspension / revocation of the certificate, (ii) the reasons for the suspension / revocation.
Service providers have the obligation to suspend the certificate within 24 hours in certain situations provided for by law, such as by court order or at the request of the signatory.
Holders of qualified or advanced electronic signature certificates have the obligation to keep the authentication data used for the secure use of the electronic signature and not to disclose them to third parties. If the certificate holders lose the data used for the creation of the electronic signature, if this data becomes known by an unauthorized third party or if the essential information in the certificate is no longer up-to-date, they have the obligation to request the revocation of the certificate within of 24 hours.
Validity of the electronic signature
The validity period of the certificate for the advanced electronic signature is set by the issuer of the certificate for a maximum period of 2 years. The supervisory and regulatory authority in the field1 is responsible for establishing validity periods in the case of advanced electronic signatures that are not based on an electronic signature certificate but use other technologies.
The exception to this rule is the certificate for advanced electronic signature issued according to the law by the Ministry of Internal Affairs and registered on the electronic identity card, which is valid for a maximum period of 5 years.
The validity of the electronic signature is checked in relation to the conditions that must be met at the time of signing the electronic document. The same applies to advanced electronic signatures, which may or may not be based on an electronic signature certificate. If after signature of a document the certificate is no longer valid, this does not affect the validity of the signed document.
Closed electronic systems
According with the law, a closed electronic system is an electronic platform used by a defined set of participants, within the same entity or established by it2 .
This platform is used for the internal procedures of the entity, for the services provided by the entity to its customers or for any other similar purposes. Entities can define closed electronic systems where the electronic signature is used in accordance with the legislation in force and based on their own regulations. If these signatures are used in the interaction with natural and legal persons outside the closed electronic system, the general legal regime applies.
The electronic document signed with an advanced electronic signature, issued by a private law legal entity, and used in a closed system produces in that closed system the same legal effects as a document signed with a handwritten signature. Users of a closed electronic system can agree on the value and legal effects of any type of electronic signature, provided that the participants are identified with a high assurance level as required by law.
Liability and penalties
Violation of the legal provisions entails disciplinary, civil, contraventional or criminal liability, as the case may be. Unauthorized use of an electronic signature or seal is deemed contravention, unless qualified as offence under the law, and is punishable by a fine from 75,000 to 100,000 lei. Wilfully altering or forging an electronic signature or electronic seal is punishable under applicable criminal laws.
Obligations of public authorities and institutions
Public authorities and institutions have the obligation to accept electronically signed electronic documents, according to the provisions of Regulation no. 910/2014 and Law No. 214/2024. Failure to comply with this provision represents a contravention.
In order to receive electronic documents, public authorities and institutions provide their own portals or use such tools provided by third parties. If neither of these two options are available, the email will be used. Information on how to receive electronic documents must be made available online.
Other legislative acts impacted by Law No. 214/2024
There follow some of the most important changes to some normative acts determined by the effects of Law No. 214/2024:
a) Companies Law No. 31/1990 and GEO No. 62/2020 for the adoption of measures for companies, with view to the meetings of the statutory bodies
According to the new law, the convening of General Meetings by electronic means must contain an advanced or qualified electronic signature. Also, the transmission by the shareholders of the votes by means of electronic communication, as well as the proxies given by the shareholders participating in the General Meetings by representative, are subject to the same requirements. The formal legal regulation provided for the use of the extended signature, which was eliminated by Law No. 214/2024.
In addition, in the case of annual financial statements, reports and financial audit, the advanced electronic signature will have to be supported by a certificate issued/issued by a Romanian authority or institution.
At the same time, it is mentioned that the president of the Board of Directors, the administrator with powers of representation or the person delegated authority to shall draw up and sign with a handwritten, qualified or advanced electronic signature the decision of the General Meeting of shareholders, which must include all the items on the agenda approved during the general meeting.
b) GEO No. 26/2000 on associations and foundations
The changes also concern the decisions of the General Meetings, which, if signed electronically, must be signed with a qualified or advanced electronic signature.
The same requirements apply to the decisions made by the board of directors, as well as to the members who sign them. General observation: Law No. 214/2024 eliminates the use of the old extended electronic signature, previously regulated by Law No. 455/2001.
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Therefore, all legislative references to this type of signature, also contained in other legislative acts, have been replaced by the obligation to use an advanced or qualified electronic signature, as appropriate.
Notes
- ADR - The Authority for the Digitalization of Romania
- Public authorities, public institutions, or private legal entities