What is an Electronic Signature?
An electronic signature is a technical process logically associated with a document which two (or more individuals or organizations (the signatories) agree to rely on in order to express their intent to sign.
Three components are necessary: a document, a signatory and an e-signature tool. While the tool most commonly used for handwritten signatures is a simple pen, electronic signature tools are more complex.
The term "electronic signature" is a broad category that encompasses many types (or levels) of electronic signatures. Depending on the country it is used in, there are differences in purpose, technical implementation, legal and cultural acceptance of electronic signatures.
Most civil law countries (including the EU and most countries in South America and Asia) support a “tiered” approach with higher levels of signature called digital or qualified electronic signatures.
Most common law jurisdictions (US, Canada, Australia, etc.) are typically more technology-neutral. In addition, specific industries (e.g. healthcare or banking) or specific documents (e.g. marriage or adoption contracts) often require a higher level of e-signature or handwritten signature.
What are the laws and regulations in Romania?
On July 1, 2016, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force and replaced the former EU Directive on electronic signatures (1999/93/EC). The eIDAS Regulation, directly applicable in the member countries of the European Union, brought uniformity - and much needed clarity - among the EU member states’ local legislation on electronic signatures.
In Romania, electronic signatures are regulated by Law no. 455/2001 on electronic signature and related Methodological Norms approved by Government Decision no. 1259/2001 (Law 455/2001) and, Government Ordinance no. 38/2020 regarding the use of electronic documents in public institutions and authorities (OG 38/2020).
Law 445/2001 defines two types of electronic signatures. Simple electronic signatures which are electronic data which is attached or logically associated with other data and which serves as an identification method. Extended electronic signatures are signatures that meet cumulative requirements. The extended electronic signature is: (1) uniquely linked to the signatory; (2) capable of identifying the signatory; (3) created using electronic means under the sole control of the signatory; and, (4) linked to the data signed in such a way that any subsequent change in the data is detectable. Law 455/2001 provides that an electronic document that has incorporated an extended electronic signature (i.e., the Qualified Electronic Signature under the eIDAS Regulation) is considered to have the same legal effect as a handwritten document.
Note that some scholars have argued that many provisions of Law 455/2001 are no longer applicable as they are outdated and conflict with the more modern eIDAS Regulation, which includes three types of electronic signatures.
Under Romania’s Labor Code, employment agreements must be concluded in written form. That said, there is a division in the courts as to how to apply this law. Due this division, if relying on an electronic signature for employment agreements, the current best practice is to sign with a qualified electronic signature (as defined in the eIDAS regulation). In addition, note that the Labor Code requires that termination documents be in written form in order to be valid. Therefore, parties may use handwritten or qualified electronic signatures.
At this time, it is generally best to use a qualified electronic signature or handwritten signature, due to the lack of cultural acceptance of electronic signatures from Romanian authorities. Handwritten signatures are considered to be the most reliable piece of evidence by authorities in order to prove one's consent.
That said, the Covid-19 crisis may help improve the acceptance of electronic signatures in the future. OG 38/2020 was adopted in relation to the Covid-19 crisis and establishes the obligation of public institutions and authorities to accept electronic documents. Through this Ordinance, public authorities and institutions may choose which type of electronic signature they require for documents that are submitted to them, subject to the eIDAS Regulation.
Is an electronic signature valid?
Yes! Not only e-signatures are valid ... ... But they are actually more secure.
Under eIDAS, a valid electronic signature may be "simple", advanced or qualified. All three levels of signature are legally valid and defensible in court.
However, the probative value (ie. how easily the validity of the signature can be proven in court) will vary depending on the type (or level) of electronic signature as illustrated by the graph below.
E-signatures almost always offer higher guaranties than handwritten signatures, regardless of the level of the e-signature being used:
- the evidence trail associated with superior electronic signature tools will allow defendant to prove the validity of the signature.
- the use of time-stamping and encryption technologies will provide a much higher level of confidence in the integrity of an electronically-signed document compared to the limited level of protection provided by a handwritten original (unless notarized).
Probative value scale
For simple and advanced electronic signatures, in case of challenge of the validity of the signature (most likely, by an employee), it is the employer’s responsibility to bring evidence of the validity of the signature.
Advanced signature solutions typically offer a more robust evidence file in that regard than simple e-signatures solutions.
HR Best Practices: Most customers elect to use different electronic signature solutions depending on the type of document being signed.
In Europe, customers typically use an advanced electronic signature for employment agreements as well as other HR-related agreements, and rely on a strong simple e-signature solution for other less sensitive HR documents such as policies and performance reviews. Due to the lack of cultural acceptance of electronic signatures from the Romanian authorities, it is generally best to use a qualified electronic signature or handwritten signature in Romania at this time.
However, this decision also depends on an employer’s internal culture and its level of risk-adversity.