In the context of the COVID-19 pandemic, public authorities need to issue measures which prevent, as much as possible, the direct contact between individuals. On the 7th of April 2020, the Government Emergency Ordinance no. 38/2020 regarding the use of electronically signed documents by the public authorities and institutions entered into force (the “GEO”).

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COVID-19: UPDATE – Electronically signed documents

The Government Emergency Ordinance no. 38/2020 regarding the use of electronically signed documents by public authorities and institutions 

In the context of the COVID-19 pandemic, public authorities need to issue measures which prevent, as much as possible, the direct contact between individuals. On the 7th of April 2020, the Government Emergency Ordinance no. 38/2020 regarding the use of electronically signed documents by the public authorities and institutions entered into force (the “GEO”).

The electronic signature is not a new issue, the applicable legal framework is provided under Law no. 455/2001 on the electronic signature and under the EU Regulation no. 910/2014 (the “Regulation”), which mentions three types of electronic signatures – simple (or the “electronic signature”), advanced or qualified (or the “digital signatures”).

The GEO does not repeal the already existing legal framework; however, the new provisions are intended to facilitate the communication of the relevant documents from and to the public authorities and institutions.

Types of electronic signatures:

The major difference between these types of electronic signatures relies on their binding character (in relation to the level of trust offered by each type signature)

Simple electronic signature

  • Represents data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign (article 3 point 10 of the Regulation);
  • Examples: drawing one’s name with the mouse on a PDF document, copy-pasting an image of a hand-written signature in a document etc;

Advanced electronic signature

  • Pursuant to article 26 of the Regulation, the signature needs to meet 4 requirements:
    • it is uniquely linked to the signatory party; 
    • it is capable of identifying the signatory party;
    • it is created using electronic signature creation data that the signatory can, with a high level of confidence, being under his sole control; and 
    • it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable. 
  • The advanced electronic signature uses a software which must ensure the impossibility to further alter the document and must ensure the fact that the signatory is the person that actually signed the document.

Qualified electronic signature

  • It is an advanced electronic signature that is created by a qualified electronic signature device, and which is based on a qualified certificate for electronic signatures (article 3 point 12 of the Regulation);
  • The qualified electronic signature is issued solely on the basis of qualified certificate, by a qualified trust service provider;
  • The list of such providers recognized in Romania can be found here: https://webgate.ec.europa.eu/tl-browser/#/tl/RO

Obligations of the public authorities and institutions:

The obligation to receive documents bearing electronic signatures

  • The authorities/institutions will set up platforms that can be used by applicants for the submission of their electronic documents;
  • Alternatively, the authorities/institutions will receive the documents via electronic mail;
  • The GEO also regulates the obligation of authorities/institutions to reply to the applicants, in turn, with electronically signed documents.

The obligation to use a qualified electronic signature

  • With the exception of internal documents, the documents issued by public authorities/institutions will bear a qualified electronic signature;
  • By means of the GEO no. 39/2020, the Special Telecommunications Service is authorized as a qualified trust service provider solely for the authorized personnel from these public authorities or institutions;
  • The documents signed in this manner will be assimilated to the authentic deeds.

The obligation to determine the type of electronic signature to be used on the documents

  • Within 15 days as of the date of entry into force of the GEO, the authorities/institutions will have to publish the type of electronic signature the entity is willing to accept for the submitted documents;
  • By way of example, we mention that the National Trade Registry published on its website that it only accepts qualified electronic signatures (with the exception of InfoCert services); the Ministry of Economy, for the emergency state certificates, requires solely a qualified electronic signature;
  • The documents signed with an advanced electronic signature will be assimilated to private deeds.

Procedure for obtaining a qualified certificate:

The procedure is different from one provider to another:

  • The applicant must submit a filled-in form;
  • The provider will further inform the applicant about the necessary documents to be submitted (by way of example, we mention: the signed contract between the applicant and the provider, a copy of the identity card of the applicant, a Trade Registry certificate in the case of legal persons etc.);
  • After processing the documents, a USB stick/token with the qualified certificate will be transmitted to the applicant either in person or via mail post.