THE E- SIGNATURE AND THE CONTRACTS
In accordance with the Electronic Signature and Electronic Certification Services Act the qualified electronic signature is equal to the handwritten signature and the electronic documents that are signed with it, are considered as signed private documents. Therefore, any commercial contracts can be signed with qualified electronic signature except the ones that require special form by law (notarized signature or notarized form).
The law is increasingly shifting to virtual environment due to the technological advancement and as a result electronic signatures and electronic documents are used more widely. There is some difference between e-signing employment contracts and commercial contracts.With the Electronic Employment Documents Regulation (EEDR) special rules for the use of electronic signatures in employment contracts have been established. Therefore, the requirements for e-signing employment contracts and commercial contracts will be discussed separately in this article.
- Signing employment contracts
Employment contracts can be made in electronic form and signed with an electronic signature as well as they can be send and saved as electronic types of documents. However, the requirements in the EEDR must be met:
- Both parties must have given their consent to be recipients of electronic statements in written form. Consent can be given before, simultaneously with or after the conclusion of the employment contract. For example, a job applicant may give his or her consent in an explicit written statement during the communication prior to the contract’s conclusion.
- The employer is obliged to notify the employee about the electronic documents that are created and stored. The notification obligation must be fulfilled in the manner indicated in the Internal Regulations. The employment file documents can only be electronic following a deliberate change in the Internal Regulations.
- Each e-signed document must be sent to the opposing party by an e-mail.
The type of the electronic signature that the employees use must be indicated in the Internal Regulations.
There are three types of electronic signatures:
- simple electronic signatures (SES)
- advanced electronic signatures (AES)
- qualified electronic signatures (QES)
The employer can only sign employment documents with a qualified electronic signature. Employees are able to sign employment documents with any type of electronic signature. The employer must provide a qualified electronic signature at his expense in order to demand that the employee signs with one.
Electronic information system is necessary in order to sign employment documents. This information system has to record and certify the time of occurrence of all legally relevant facts. It has to be precise to the exact second when the legally relevant fact occurred. A qualified electronic time stamp is required also. / For signing employment contracts and other employment documents an intentional change in the Internal Regulation is needed. Changes to the present employment contracts are required as well. In addition, a qualified electronic signature for the employer is obligatory and he should provide one to the employees too. An electronic information system needs to be purchased and installed. All of the used e-mails must be specified.
A less complex and more accessible alternative is to sign employment contracts with electronic signatures under a “mixed system”. The employer signs with a qualified electronic signature and the employee signs manually on paper.
- Signing commercial contracts with an electronic signature
There is no specific form requirement for commercial transactions such as customer or supply contracts stated in trade law. The legal transaction would be valid even if it is stipulated on the telephone. However, in aim to prove the deal you made, the use of qualified electronic signature is quite sufficient. It makes it easier to prove the content and authorship of the written document that is embodying the legal transaction. QES is equal to a handwritten signature under the Electronic Document and Electronic Certification Services Act and electronic documents signed with it are deemed to be private signed documents. Consequently, all commercial contracts including preliminary contracts can be signed with a QES. A contract could be concluded by both parties in an electronic form and signed by their representatives with a QES. Additionally, there is the possibility for the contract to be signed with an electronic signature by one party and then the opposing party to sign on a paper copy of the electronic contract. Contracts in notarial form cannot be e-signed. Furthermore, a content or signature authorship notarization of a document signed with any electronic signature is not possible. These rules cannot be overridden by an electronic signature of any type.
Requirements for the establishment of electronic communication in employment contracts and legal relationships:
- Both parties (the employee and the employer) must have expressed their consent to be recipients of electronic messages in written form;
- The existing employment contracts that have been on a piece of paper must be annexed in written form in order to input the new method of employer to employee communication;
- An explicit change to the Internal Rules must be made to apply electronic record keeping, retention of electronic records and electronic employee communication, as well as the type of electronic signature employees can use while communicating with the employer.
- The employer has to notify the employees that their records are maintained electronically.
- The employer must provide an information system for electronic communication that verifies incoming messages – registered e-mail, certifying the occurrence of facts (the exchange of communication) with accuracy to the year, date, hour, minute, second.
- Employees can sign electronic communication to the employer with one of the three types of electronic signature: ordinary, advanced and qualified. If the employees have to sign documents with qualified e-signature, the employer is obliged to provide a qualified electronic signature to his employees at his expense. The employer must only sign with QES.
- Employment contracts may also be concluded, amended and terminated by the so-called hybrid or mixed system. The employer e-signs documents addressed to employees and the employees respond in written form. In this case, all the requirements are in place, except for the requirement that the employee must be provided with a QES at the employer’s expense.