On 8 July 2024, Law No 214/2024 on the use of electronic signatures, time stamps, and the provision of trust services based on them (the “Law 214/2024” or the “Law”) was published in the Official Gazette of Romania[1], Part I, No. 647, 8 July 2024. The Law will enter into force in 3 months after the date of its publication in the Official Gazette of Romania, more precisely, starting on 8 October 2024.
Once the Law will come into force, the following pieces of legislation will be repealed:
▸Law No 455/2001 on electronic signature;
▸Law No 451/2004 regarding the time stamp;
▸Government Emergency Ordinance No 38/2020 on the use of electronic documents by public authorities and institutions.
All legal provisions containing references to the provisions of Law no. 455/2001 and Law no. 451/2004 are interpreted as referring to the provisions of Law 214/2024.
In a nutshell, Law 214/2024 establishes new rules and clarifies some aspects of the use of electronic signatures, electronic seals, time stamps, and electronic documents. This new legislation creates the national legal framework for the application of Regulation (EU) No 910/2014 (“eIDAS” or the “Regulation”)[2] REGULATION (EU) No 910/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, and also regulates the measures left to the Member States by the Regulation.
As regards the types of electronic signatures, Law 214/2024 refers to the definitions set out in the Regulation, establishing the legal effects of the simple electronic signature ("SES"), advanced electronic signature ("AES"), and qualified electronic signature ("QES"), especially in terms of their probative values, but also their legal effects.
Briefly, the most important provisions introduced by the new Law 214/2024 include the following:
(i) The Law introduces an explicit definition for SES - that electronic signature whose elements do not fulfil at least one of the conditions that an AES must fulfil according to Article 26 of eIDAS. This definition essentially coincides with the interpretation of the notion of SES in practice, but it is nevertheless welcome to explicitly outline this concept within Law 214/2024.
(ii) The Law provides for the general legal effects of signatures
Similar to the provisions of eIDAS, Law 214/2024 provides that all three types of electronic signatures produce legal effects and can be used as evidence before the court. Furthermore, Law 214/2024 stipulates that a legal act in electronic form, signed with the type of electronic signature provided for by law or with QES, produces the same legal effects as the same legal act in written form.
▸The validity of the electronic signature - The Law stipulates that the validity of signatures will be checked in relation to the conditions that they must fulfil at the time of signing the electronic document and the expiry of the validity of the certificate based on which the signature was applied will not affect the validity or the effects of the signed document.
▸The maximum period of validity of the AES certificate - shall be set by the issuer of the certificate for a maximum period of 2 years. As an exception, the AES certificate issued by the Ministry of Internal Affairs in accordance with the law and entered on the electronic identity card will be valid for a maximum period of 5 years.
(iii) The Law regulates the legal effects depending on the type of electronic signature
▸ QES - The Law does not significantly change the legal regime of the QES, which is already very well defined by eIDAS, but clarifies the legal value of an electronic document issued by a public authority or institution or by a person exercising and within the limits of public authority, which is either signed with QES or has a qualified electronic seal attached to it, which is now treated as an authentic document. ▸ AES – The Law gives electronic documents signed with AES the same legal effects as a document signed with a handwritten signature, but only under certain conditions expressly listed in the Law. ▸ SES – Similarly, the Law states that an electronic document signed with SES has the same legal effects as a document signed with a handwritten signature, but only under certain conditions expressly listed in the Law.
(iv) The Law lays down how the validity of the signature can be checked in the event of non-recognition or challenge and the burden of proof
In case of non-recognition or challenge of the QES or the qualified electronic seal, the validity check will be carried out by the court. The burden of proof regarding the violation of the legal and technical conditions attached to the QES or the qualified electronic seal shall lie with the person contesting them.
The Law also regulates the manner in which the validity of AES, SES or advanced electronic seal will be verified if they are challenged or not recognized by one of the parties to the act. If one of the parties does not recognise or challenge the AES or SES, the burden of proof concerning the fact that the legal and technical conditions for the signature have been met shall lie with the party claiming the validity of the signature.
The new legal provisions provide that a document signed with an electronic signature of any type, which according to the provisions of this Law does not have the value of a handwritten signature, may be considered as the beginning of written evidence, also referring to the provisions of Art. 309 para. (2) of the Civil Procedure Code, which states that legal acts in which one of the parties is a professional may be proved even without a signed electronic document. Moreover, if an electronic document is concluded, it may be proved by any type of electronic signature applied to it.
(v) The Law introduces obligations for electronic signature certificate holders
Holders of qualified certificates or AES certificates are obliged to keep the authentication data used for the application of QES or AES securely and not to disclose them to others. At the same time, they are obliged to request within 24 hours the revocation of certificates in the following cases:
▸they have lost their electronic signature creation data;
▸they have reason to believe that the electronic signature creation
▸data have become known to an unauthorized third party;
▸the essential information contained in the certificate no longer corresponds to reality.
Nevertheless, the Law does not provide for specific penalties (such as fines) for non-compliance with these obligations by holders of QES or AES.
(vi) Transitional provisions. Amendments of other normative acts
Within 90 days of the entry into force of Law 214/2024, secondary legislation will also be adopted, such as the procedure for granting, suspending, and withdrawing the status of a qualified trust service provider under eIDAS.
The Law also provides that the term "extended electronic signature" shall be interpreted as the use of an AES, and the term "extended electronic signature based on a qualified certificate" shall be interpreted as meaning the use of a QES.
Last but not least, Law 214/2024 also amends some legal provisions of many normative acts, such as the Companies Act no. 31/1990, Law no. 134/2010 on the Civil Procedure Code, Law no. 85/2014 on insolvency prevention and insolvency proceedings, Law no. 589/2004 on the legal regime of electronic notarial activity.
***
Stay tuned for a detailed analysis of this topic in a forthcoming article in which we will analyze in detail the legal effects of the three types of electronic signature introduced by Law 214/2024, as well as the new requirements applicable to trust service providers, and the regime of electronic documents signed in a closed system.
[1] Official Gazette of Romania, Part I, No. 647, 8 July 2024. [2] REGULATION (EU) No 910/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
