The basic legal acts that concern electronic signatures are in particular:

• Act of 5 September 2016 on trust services and electronic identification
• 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 (hereinafter referred to as the Regulation).

In the Regulation, the legislator distinguished three types of signatures: electronic, advanced electronic, and qualified electronic. According to the definitions contained therein:

electronic signature – means data in electronic form that is attached to or logically linked to other data in electronic form and that is used by the signatory as a signature

advanced electronic signature – an electronic signature that meets all of the following requirements:

• is uniquely assigned to the signer
• enables the identification of the signer
• is submitted using electronic signature creation data that the signatory can, with a high degree of certainty, use under his/her sole control
• is linked to signed data in such a way that any subsequent change to the data is recognizable

qualified electronic signature – understood as an advanced electronic signature that is created using a qualified electronic signature creation device and which is based on a qualified electronic signature certificate.

The legal validity of an electronic signature is confirmed in Article 25 of the Regulation. According to this provision, an electronic signature cannot be denied legal effect or admissibility as evidence in court proceedings solely on the grounds that it is in electronic form or that it does not meet the requirements for qualified electronic signatures . This means that legal acts confirmed by one of the aforementioned signatures are effective and can function in legal transactions and may constitute evidence in court proceedings.

At the same time, the Regulation equates a qualified electronic signature with a handwritten signature . This means in practice that if a legal act requires a written form for validity that requires a handwritten signature, using a qualified electronic signature ensures that this form is maintained.

To ensure the compatibility of European law with national law, amendments were introduced to the Civil Code in 2016. As a result, among other things, in addition to the written form, new forms of legal acts were introduced: electronic and documentary. Electronic form is regulated in Article 78 (1) paragraph 1 of the Civil Code (hereinafter referred to as the Civil Code). To maintain this form of legal act, a declaration of intent must be submitted electronically and signed with a qualified electronic signature. An equalization sign was also introduced between a declaration of intent submitted electronically and a declaration of intent submitted in written form (Article 78 (1) paragraph 2 of the Civil Code). This is particularly important in situations where the written form is legally required under pain of nullity. Examples of such agreements, under applicable Polish law, include leasing agreements, employee non-competition agreements, and debt assumption agreements. Therefore, concluding these agreements in electronic form with a qualified electronic signature will be valid.

Since 2016, the Civil Code has also introduced a documentary form for legal acts. When using this form, a standard electronic signature can be used. To maintain documentary form, it is sufficient to submit a declaration of intent in a document, in a manner that allows for the identification of the person making the declaration. Therefore, a necessary condition for the form to be considered documentary is the ability to identify the person from whom the information recorded in the document originates.* A document may be:

• in text form with a mechanically reproduced signature – facsimile, fax copy, scanned copy
• in audio or audiovisual form
• as an electronic message (e-mail) ending with the name and surname or data allowing the identification of the person performing the activity**

Finally, returning to a qualified electronic signature based on a qualified certificate issued in one Member State, it is worth pointing out that such a signature is recognised as a qualified electronic signature in all other Member States (Article 25 of the Regulation).

This alert is for informational purposes only and does not constitute legal advice.

* Judgment of the Court of Appeal in Szczecin of 30 December 2019, file reference: I Aca 672/19
** Commentary edited by K. Pietrzykowski 2020, Volume I, 10th edition, author: A. Brzozowski

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