When Is an Electronic Signature Equivalent to a Handwritten One?

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Digitalization is bringing new possibilities to legal and business relationships as well. One of the significant tools of these changes is the electronic signature. As the obligation to communicate with the state and its bodies electronically increases, so does the importance of electronic signing. In this article you will learn when an electronic signature fully replaces a handwritten signature and how you can obtain one in just a few clicks.

The Legal Framework of the Electronic Signature in Slovakia and the EU

At the beginning of this section, we will focus on characterizing the handwritten signature and the electronic signature.

What Is a Handwritten Signature?

The current valid and effective legal regulations in Slovakia do not contain a legal definition of the term handwritten signature. To define it, we therefore have to rely on case law and established practice, according to which such a signature must:

• be an expression of the will of the person,
• have its authenticity and binding force confirmed by the very presence of the signing person at the signing of the document and subsequently by the certification of the signature – for example, by official certification at a notary or registry office.

Act No. 40/1964 Coll., the Civil Code, as currently in force (hereinafter the “Civil Code”), states in the provision of Section 40(3) that a written legal act is valid if it is signed by the acting person.

The written form of a legal act is also preserved if the legal act is made by telegraph, teletype or electronic means that allow the capture of the legal act and the identification of the person who made it.

Important legal information:

• The written form of a legal act is ALWAYS preserved if the legal act is made by electronic means and signed with a guaranteed electronic signature or a guaranteed electronic seal.
• Under the provision of Section 40(5) of the Civil Code, legal acts carried out by electronic means that are signed with a guaranteed electronic signature or a guaranteed electronic seal and provided with a time stamp do not require certification of the authenticity of the signature at a notary or registry office.

The Civil Code uses the terms guaranteed electronic signature and guaranteed electronic seal, whereby these terms are understood to mean the qualified electronic signature and the qualified electronic seal.

What Is an Electronic Signature and What Are Its Legal Effects?

You will find the legal definition of the electronic signature in Regulation (EU) No 910/2014 of the European Parliament and of the Council (hereinafter the “Regulation”). Under Article 3, point 10 of this Regulation, an electronic signature is a set of data in electronic form which is attached to or logically associated with other data in electronic form and which the signatory uses to sign.

This definition represents the basic form of the electronic signature, for which the legislation does not require any specific technical or security features to be met (referred to in English as a “Simple Electronic Signature”). The Slovak equivalent is the term simple electronic signature, whereby such a signature is not, from the perspective of the valid and effective legislation, as legally binding as a handwritten signature.

A practical example:

In practical life, you may encounter a simple electronic signature, for example, when submitting an order form while shopping in an e-shop.

When Is an Electronic Signature Equivalent to a Handwritten Signature?

The highest legal force belongs to the qualified electronic signature. Under Article 3(12) of the Regulation, a qualified electronic signature is created using a qualified electronic signature creation device and is based on a qualified certificate for electronic signatures. A qualified certificate is a certificate issued by a qualified trust service provider that meets the requirements set out in Annex I of the Regulation.

Important:

The company Brain:it is a qualified trust service provider within the meaning of the Regulation as well as within the meaning of Slovak legislation.

The basic legal regulation governing the legal effects of the electronic signature is found in the Regulation and subsequently in the provisions of the Civil Code, which we mentioned in the previous part of the article. What does the Regulation say?

• In Article 25, the Regulation states that the legal effect of an electronic signature and its admissibility as evidence in legal proceedings must not be denied solely on the grounds that the signature is in electronic form or that it does not meet the requirements for a qualified electronic signature. The legislation therefore grants a certain legal effect to all types of electronic signature.
• However, only the qualified electronic signature is equivalent to a handwritten signature, that is, has the same legal effect as a handwritten signature.
• A qualified electronic signature (referred to in English as a Qualified Electronic Signature) based on a qualified certificate issued in one EU Member State is recognized as a qualified electronic signature in all other EU Member States.

In practical life, you may encounter a qualified electronic signature, for example, when using services on the Slovensko.sk online portal, when you use an identity card with a chip (eID) and enter your security code.

What Documents Can You Sign With a Qualified Electronic Signature (QES)?

Using a QES, you can sign, for example, the following documents:

• the founding deed or articles of association, an agreement on the transfer of an ownership interest, the consent of a property owner, the granting of a procuration, and other written annexes and founding documents in a limited liability company; note: a qualified time stamp is also required in addition to the QES,
• various official filings, for example via the Slovensko.sk portal, such as tax returns, the establishment, suspension or cancellation of a trade licence, and filings to the real estate cadastre,
• various types of contracts, such as an employment contract, an insurance contract or a non-disclosure agreement,
• the signing of invoices, orders and other business documents,
• other documents.

On our blog you will find further tips and important information on using a qualified electronic signature in practice. In one of the blog articles, for example, we have prepared for you an overview of how to use a qualified electronic signature when filing to the real estate cadastre.

The Procedure for Obtaining a Qualified Electronic Signature

Using a qualified electronic signature in both business and personal dealings ensures authenticity, integrity and non-repudiation. Thanks to this, it is possible to unambiguously verify the identity of the signing entity and prove the immutability of the signed documents at the time of their signing.

How to obtain a qualified electronic signature?

You create an application to obtain a qualified electronic signature on the zone.nfqes.com website. After arranging an in-person visit to the registration authority, you present your identity documents. Subsequently, a qualified certificate is issued to you and you can start signing.

Get all the important information about the qualified electronic signature, its advantages and the use of the QES in practice.