This week, we've prepared an introductory alert on the topic of digitizing the investment and construction process through the use of remote electronic communication. This topic is particularly important now, as more and more restrictions are being introduced on direct access to public administration bodies. Therefore, in light of the changes initiated by the amendment to the Construction Law, today we'd like to present and remind you of the basic principles governing electronic administrative proceedings.
In administrative proceedings, the commonly known "rule of writing" applies, according to which matters must be dealt with in writing. However, thanks to the amendment to the Act on the Computerization of the Activities of Entities Performing Public Tasks, which entered into force on June 17, 2010, matters can also be dealt with in the form of an electronic document. Written form is identified with the recording or performance of actions by preparing a document in paper form. An electronic document, on the other hand, is understood as a set of data constituting a separate semantic entity, organized in a specific internal structure and recorded on an electronic data carrier . The differences between this written form of handling a matter and the form of an electronic document are therefore manifest only at the technical level, i.e., they concern the type of medium on which the document is recorded and the method of recording the document. It should also be emphasized that these forms of performing procedural actions are equivalent, which means that the form of an electronic document cannot be treated as an exception to the written form.
Electronic documents, like traditional documents, must be signed – in this case, with electronic signatures. The following types of electronic signatures can be distinguished from Polish legal acts, as well as from European regulations in force in our legal system:
1. "ordinary" electronic signature – defined as data in electronic form that are attached to or logically linked to other data in electronic form and that are used by the signatory as a signature,
2. "advanced" electronic signature – i.e., an electronic signature that meets all of the following requirements:
– enables the identification of the signatory,
– is uniquely assigned to the signatory,
– is linked to the signed data in such a way that any subsequent change of the data is recognizable,
– is created using data used for creating an electronic signature, which the signatory can, with a high degree of certainty, use under his/her exclusive control,
3. qualified electronic signature – an advanced electronic signature that is created using a qualified electronic signature creation device and which is based on a qualified electronic signature certificate. It produces a legal effect equivalent to a handwritten signature. Furthermore, the effectiveness of a qualified signature Electronic communication is pan-European in nature.
The issue of service of documents is also important in electronic administrative proceedings. This occurs via electronic means of communication if a party or other participant in the proceedings meets one of the following conditions:
1. submits an application in the form of an electronic document through the electronic inbox of a public administration body;
2. applies to the public administration body for such service and provides the public administration body with an electronic address;
3. consents to the service of documents in a given proceeding using these means and provides the public administration body with an electronic address.
Furthermore, at the request of a public administration body, a party or other participant in the proceedings may express so-called standing consent to the service of documents in the form of an electronic document in other categories of individual cases handled by that body, specified by the body. The body's request for consent, i.e., the request, is made via electronic means of communication by sending the relevant statement of the body in that case to the electronic address of that participant.
In practice, the use of electronic means of communication in administrative proceedings often involves sending a scan of the application or other document to the office's email address. For certain categories of cases, however, for security reasons, the use of a trusted profile will be required. (ePUAP / eGo / Trusted Profile) or a qualified certificate. These allow for a more accurate confirmation of the identity of the entity submitting the document, while eliminating the risk of impersonation.
In summary, the ability to handle matters electronically in administrative proceedings, as well as the ever-increasing digitization of the investment and construction process, can certainly be considered among the improvements that simplify and expedite administrative proceedings. Furthermore, they reflect the needs created by the COVID-19 pandemic. Currently, the changes should be assessed positively, but time will tell whether electronic administrative proceedings will effectively replace paper-based correspondence.
Next week, we will prepare examples of applications or proceedings that can be handled electronically under the general provisions of the Code of Administrative Procedure.
We would also like to inform you that it is still possible to register and participate in the next webinar, which will take place on Tuesday, November 17, 2020, at 10:00 AM. The webinar, titled "Digitalization of the Construction Process," will consist of two parts: a legal part, during which we will talk about electronic proceedings, and a part devoted to construction design, i.e. our invited architects will talk about BIM design and the changes introduced by the recent amendment to the Construction Law.
This alert is for informational purposes only and does not constitute legal advice.
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