Electronic signature is gaining popularity, which is not surprising, because it is a solution that simplifies formalities and allows you to save valuable time. There are two types of signatures on the market – electronic signatures and qualified electronic signatures. How do these two types of digital signatures differ? In what cases is it necessary to use a qualified signature, and where only the ordinary electronic signature is sufficient?
The key document that regulates the issue of electronic signatures is eIDAS, i.e. a regulation issued by the Parliament and the Council of the European Union in 2014. It specifies the conditions that a qualified signature must meet in order to have the same legal force as a signature placed on a document by hand.
A qualified signature must meet the conditions of an advanced signature:
1) it is assigned to a unique signatory,
2) the signature makes it possible to identify the signatory,
3) it is placed using data for creating an electronic signature, which the signatory may use with a high degree of certainty under his/her sole control,
4) it is linked to the data signed in such a way that any subsequent change in the data is recognizable.
Qualified signature certificate
In addition, the qualified signature must be based on a qualified certificate that was issued by a qualified trust service provider and placed with a qualified signature creation device. When issuing a qualified certificate, the identity of the person applying for the qualified certificate is verified. Identity checking can be performed remotely, through a video call or during a meeting with an employee of the entity that issues the certificate. Identity verification involves checking the compliance of the information provided by the person applying for the qualified signature certificate with the data contained in the document confirming the identity - passport or personal ID. This excludes possible attempts of fraud or impersonating other people.
A qualified signature enables the identification of the person who signed the document. It also guarantees the integrity of such a document, as the data confirmed with an electronic signature can no longer be modified. Neither of the parties may add a new provision to the contract without violating the electronic signature. Thanks to this, you can be certain of any legal transactions.
Initially, a qualified signature required the use of a reader connected to the computer, in which a card was inserted. This solution was not the most convenient – it was characterized by low mobility, and the need to use an external reader created some trouble, especially when traveling. Modern solutions offer much greater convenience and unlimited availability. The data needed to create a signature is stored in a secure cloud, and the user signs documents from the level of a web browser. This eliminates the need for the use of additional equipment. It's important to note that a qualified certificate issued in a country of the European Union is accepted in other members of the community.
A qualified signature is equivalent to a handwritten signature
According to the provisions of the eIDAS regulation, a qualified electronic signature has the same legal effect as a handwritten signature. This principle is confirmed in the Polish Civil Code. Article 78 § 1 equates a qualified electronic signature with a handwritten signature: "To maintain the electronic form of a legal activity, it is sufficient to submit a declaration of will in electronic form and affix it with a qualified electronic signature". A qualified electronic signature can be used to confirm all documents that require a written form. It can be used, among others to sign an employment contract, a contract for specific work with the transfer of proprietary copyrights or a bank account agreement.
Electronic signature vs. qualified electronic signature.
The eIDAS regulation also provides for the possibility of using a non-qualified electronic signature that is not based on a qualified certificate. The document does not specify the conditions for generating a non-qualified signature. A person who applies for a non-qualified certificate does not undergo such detailed verification as in the case of obtaining a qualified certificate. A non-qualified signature may be assigned to a specific person. Providers of non-qualified electronic signatures do not have to meet all the strict conditions that apply to providers of qualified signatures. For this reason, an electronic non-qualified signature does not always have the same legal effect as a qualified signature, which is treated equally with a handwritten signature. An unqualified signature may be used to sign documents that do not require a written form, e.g. contracts of mandate, orders, sales contracts or those that function within the internal company flow.
How do courts approach this matter?
An electronic signature, regardless of whether it is qualified or not, constitutes evidence in court, which is guaranteed by Article 25.1 of eIDAS. An electronic signature may not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that the signature is in electronic form or that it does not meet the requirements for qualified electronic signatures.
Nevertheless, the condition for benefiting from the legal effects of the eIDAS regulation is that the electronic signature results from the functioning of a trust service. Autenti is such a trust service, which guarantees evidence of the electronic signature process that is independent of the signing parties. A non-qualified electronic signature under a declaration of will always ensures compliance with the document form, which is sufficient for most activities and signed documents in ordinary matters and business activities.