In an era of continuous digitisation, the use of electronic signatures („e-Signature”) has become increasingly common. E-Signatures offer a handy, fast and legally valid digital solution, changing the way in which the traditional handwritten signature (in RO., semnătura olografă) has worked until now.

In this article, we aim to analyse the e-Signature types are and their practical use.

1. Legal framework

E-Signatures are currently regulated as follows:

• At European level, 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 (“eIDAS”);
• At national level, (i) Law 455/2001 on e-Signature and (ii) Order 449/2017 on the procedure for granting, suspending and withdrawing the status of qualified trust service provider in accordance with Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014.

2. What is e-Signature

According to eIDAS, by e-Signature we mean 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.

This is a technical definition, but like handwritten signatures, an e-Signature indicates the signatory’s intention to be bound by the terms of the signed document.

3. How many types of e-Signature exist

According to eIDAS, there are three types of e-Signature: simple, advanced and qualified.

Simple e-Signature (“SES”)

It is the simplest type of e-Signature provided by eIDAS and meets the fewest requirements while offering the lowest level of security;

Given the definition of e-Signature above, simply writing your name in an e-mail or a signature on a tablet can constitute SES.

Advanced e-Signature (“AES”)

It is an e-Signature that meets the following additional requirements:

1. it is uniquely linked to the signatory;
2. it is capable of identifying the signatory;
3. it is created using e-Signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
4. it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

Qualified e-Signature (“QES”)

It is an advanced e-Signature that:

1. is created by a qualified e-Signature creation device; and
2. relies on a qualified certificate for e-Signatures issued by a qualified trust service provider.

It is the only e-Signature that has the same legal value as a handwritten signature;

Qualified trust service providers offering QES shall meet certain criteria and follow a certain legal procedure before obtaining this status; The list of qualified trust service providers in Romania is available here.

4. Signing documents in accordance with the applicable legislation

The distinction between the three types of e-Signature above is important from at least two perspectives: the probative force in court and the fulfilment of the formal requirements laid down by law for certain documents.

Probative force in court

According to eIDAS, only QES has the equivalent legal effect of a handwritten signature, thus giving QES greater legal value than SES and AES.

Thus, documents signed with SES / AES will also be able to be used as evidence in court, but SES / AES will not have the same probative force as handwritten signatures and QES (and most likely will be supplemented with other evidence etc.). In this respect, eIDAS provides that an e-Signature cannot be denied legal effect and admissibility as evidence in court proceedings simply because it is in electronic format or does not meet the requirements for QES.

At the same time, the difference between documents signed with AES and those signed with SES is also the probative force, in the sense that AES represents a higher level of security than SES, as it meets more technical requirements than SES.

Compliance with formal requirements

According to the general rule laid down in Article 1178 of the Civil Code, a contract is concluded by the mere agreement of the parties, unless the law imposes a certain formality for its valid conclusion. In other words, where there is no express legal provision to the contrary, a contract concluded verbally is also a valid contract.

However, in certain situations provided for by law, the contract must be in written form, either for its validity (ad validitatem) or for its proof (ad probationem). In these situations, the contract must be signed with QES, since only QES fulfils this form requirement.

Also, when, according to the law, the contract shall be concluded in authentic form (at the notary’s office), no type of e-Signature can be used.

5. What documents can be signed with SES / AES

You can use SES / AES for documents / contracts for which the law does not require a certain form. Here are some examples:

• service contracts, such as consultancy contracts, collaboration contracts, marketing contracts, etc. (Art. 1851 of the Civil Code);
• mandate contracts (Art. 2013 Civil Code);
• intermediation contracts (Art. 2096 of the Civil Code);
• sale or exchange of movable property contracts that do not need to be registered with public registers (Art. 1650 and Art. 1763 Civil Code);
• loan for use contracts - commodatum contracts (Art. 2146 of the Civil Code); However, such commodatum contracts concluded in authentic form or under private signature with certified date constitute an enforceable title with regard to the restitution obligation;
• loan contracts (Art. 2158 of the Civil Code); However, such loan contracts concluded in authentic form or under private signature with certified date constitute an enforceable title with regard to the restitution obligation;
• non-disclosure agreements;
• GDPR information notes.

6. What documents cannot be signed with SES / AES, QES being required

For example, if you want to electronically conclude the following contracts, you will need QES:

• individual employment contracts (Art. 16 Labour Code);
• association contracts / Articles of incorporation, with certain exceptions in which they shall be notarised (Art. 1884 Civil Code / Art. 82 Law 265/2022 / Art. 5 Law 31/1990);
• copyright assignment contracts (Art. 43 Law 8/1996);
• commission contracts (Art. 2044 Civil Code);
• consignment contracts (Art. 2055 Civil Code);
• agency contracts (Art. 2078 Civil Code);
• deposit contracts (Art. 2104 Civil Code);
• insurance contracts (Art. 2200 Civil Code);
• settlement contracts (Art. 2272 Civil Code).

7. What documents cannot be signed with e-Signature

If you want to conclude, for example, the following documents, you will have to go to the notary:

• wills (Art. 1041 Civil Code);
• donation contracts (Art. 1011 Civil Code);
• contracts for the transfer of property rights in immovable property, such as the sale of immovable property contract (Art. 1244 Civil Code);
• caretaking contracts (Art. 2255 Civil Code);
• contracts for mortgages on immovable property (Art. 2378 Civil Code).