NEWS & INSIGHTS

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October 2024 – On 8 October 2024, the Romanian law on the use of electronic signatures, timestamps and the provision of trust services based on these ("Electronic Signature Law") entered into force. The legislation introduces a new legal framework for electronic signatures, in close alignment with Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market ("eIDAS Regulation").

Particularities of the legal effects depending on the type of electronic signature used:

A. Qualified electronic signature – this is a signature created by a qualified electronic signature-creation device based on a qualified certificate for electronic signatures.

While the Electronic Signature Law does not bring substantial changes regarding the effects of qualified electronic signatures, it nevertheless brings more clarity and qualifies a document signed with such an e-signature as producing the legal effects of a handwritten signature. Thus, an electronic document signed with such a signature will have the equivalent probative value as a document signed under private signature (issued in handwritten form).

B. Advanced electronic signature – this is a signature that, as set out in the eIDAS Regulation, fulfils the criteria below:

Regarding the effects of this type of signature, the Electronic Signature Law establishes that a document signed with such a signature produces the same legal effects as a document signed with a handwritten signature, in any of the following three alternative cases: 

• the document was signed with an advanced electronic signature created with a certificate issued by a public authority or institution in Romania or by a qualified trust service provider;
• the electronic document is recognised by the person whom it is opposed to (e.g. the other contractual party), which recognition may also result from the explicit act of performance of the obligations arising from the electronic document; or
• the parties have expressly agreed via a separate instrument (signed either by a handwritten or by a qualified electronic signature) that they will give the advanced electronic signature the legal effects of a handwritten signature. (N.B. If the legal relationship is set forth between professionals, the distinct document may be signed also with an advanced electronic signature.)

C. Simple electronic signature – this is an electronic signature that does not meet at least one of the criteria set out in the eIDAS Regulation mentioned above.

One of the most important changes brought by the Electronic Signature Law is that such simple e-signatures no longer have only the value of a prima facia written evidence, but now also have the probative value of a document signed under private (handwritten) signature, in any of the following three alternative cases:

• in case of pecuniary deeds with a value of less than half of the minimum wage at the signing date of the document (B. currently the minimum wage is RON 3,700, thus the threshold to be considered for applying this rule is RON 1,850);
• the document signed with a simple electronic signature is recognised by the person whom it is opposed to. The recognition may also result from the explicit act of performance of the obligations arising from the electronic document (by the person challenging the signature), whereas the recognition may be either expressed (e.g., in court by judicial testimony) or implicit (e.g., by actions or measures such as the provision of a service, the payment of a price, etc.);
• in case both parties are professionals and they have expressly agreed via a written document (signed either by a handwritten or qualified electronic signature) that they will give the simple electronic signature the legal effects of a handwritten signature.

It is important to note that a simple electronic signature can only be used in cases where a written form is required as a condition of proof (ad probationem), not in cases where the law requires the written form as a condition of validity (ad validitatem).

From a practical perspective, to determine the agreements that can be duly executed using only a simple electronic signature, it needs to be analysed on a case-by-case basis whether the agreement might gain the probative value of a document signed under private signature, namely if:

• the value of the deed observes the threshold mentioned above;
• there is in place between the parties any other kind of agreement that includes provisions whereby the parties agree to give a simple electronic signature the value of a handwritten signature for the execution process of subsequent documents to be concluded by and between the parties (N.B. the initial agreement must be signed either in handwriting or with a qualified electronic signature);
• it is acknowledged by the person to whom the agreement is ostensible (e.g., by payment of the price).

Under the new framework introduced by the Electronic Signature Law, signing documents with a qualified electronic signature remains the safest option. However, for agreements implying successive performances where orders/services are established by means of subsequent addenda/annexes/purchase orders, an express provision could be included in a separate document or in the framework deed, whereby the parties agree in advance that a simple electronic signature will have the legal effects of a handwritten signature for any subsequent deeds governing their relationship.