Electronic signature – the easier way to keep signing in the state of emergency

01.04.2020

In a state of emergency, the need for electronic signing of documents is increasing. This outcome is expected – the business should continue to operate even when managed from a distance.  Signing of documents – power of attorneys, contracts, submissions, declarations, etc – in these cases should not stop and (like many other business operations) should be manageable by electronic means.

The regulation of electronic signatures remains unchanged after the adoption of the Measures and Actions during the State of Emergency Act.The applicable legal regulation to e-signing is still found in the Electronic Document and Electronic Certification Services Act (“EDECS“)

What are the types of electronic signatures and what is the difference between them?

According to Art. 3 of Regulation (EU) No 910/2014 on Electronic Identification and Authentication Services for Electronic Internal Transactions and Art. 13 of EDECS, there are three types of electronic signatures:

  1. An electronic signature (also referred to as a simple electronic signature) is the simplest form of electronic identification that identifies its author by name and password, e.g. email, signature under an email that is often found at the end of the emails sent by the companies. This type of signature is less secure, since it cannot guarantee the invariability of the statement of its author.
  2. An advanced electronic signature is an asymmetric encryption signature, in which the signer enters his/her “key” on the statement he/she signs, and the recipient of the statement “unlocks” the statement using a public “key”. The higher degree of security in this signature comes from the fact that the addressees have the so-called public “key” to read the statement but cannot modify it because it is locked with the private key of its author.

    Examples of advanced electronic signature are DocuSign, PandaDoc, eSign +, EverSign, etc.

  3. Qualified Electronic Signature (“QES“) is, in its essence, an advanced electronic signature, which contains a certificate of authorship, which is issued by a registered provider of qualified certification services.

Examples of QES are the ones issued by electronic certification service providers (the registered providers in Bulgaria can be found here: https://crc.bg/en/rubrics/501/crc-portal-for-electronic-services). This is the most secure electronic signature.

What is the legal effect of the three types of electronic signatures?

Qualified electronic signature

Bulgarian law explicitly provides that QES has the legal effect of a handwritten signature, as long as no special form is required for the signature of the relevant document (examples of such a special form are the notary deeds, notarized power of attorney, the requirement for the handwriting of the statement (some types of wills) and others).

In other words, powers of attorneys with simple written form, declarations and applications to state bodies and other documents that do not require a special (notarized) form can be signed with a QES.

Simple and advanced electronic signature

Under the law the author and the addressee of any statement (including these constituting a contract between the parties) may expressly agree that the ordinary electronic signature and the advanced electronic signature may have the power of a handwritten signature between these same parties(except in respect of documents for which the law requires a special form – the ones mentioned above).

It is this explicit provision that ​​makes the contracts signed with DocuSign or some of its competing platforms validly signed. This approach was widely used even before the state of emergency was declared and currently the electronic signing appears to be even more secure compared to the standard handwritten signing of documents.

For more information, please contact:

Ilya Komarevski, Partner
ilya.komarevski@tbk.bg

Eleonora Mateina, Senior associate
eleonora.mateina@tbk.bg