Romania: Update on importance of obtaining an electronic signature during the state of emergency

Through the Emergency Ordinance no. 38 dated 30 March 2020, published on 7 April 2020 in the Romanian Official Gazette Part I, no. 289 (“EO 38/2020”), the Romanian government has approved certain measures that will allow the use of electronic documents for both digital communication between public authorities and also between public authorities and individuals or legal entities, as well as measures for ensuring the performance of state procedures through the implementation of secured information and communication means.

EO 38/2020 provides that the documents issued in electronic format by public authorities and institutions will bear a qualified electronic signature (in Romanian: “semnătură electronică calificată”) and will be equivalent to official documents.

Thus, as of 7 April 2020, public authorities and institutions are obliged to accept documents bearing an electronic signature. In this respect, each public authority and institution will have to determine the applicable type of electronic signature for natural or legal persons using an online service provided by the relevant authority/institution.

In order to receive electronic documents, public authorities and institutions will make their own platforms available or they will use online platforms provided by third parties. If the electronic documents cannot be received via an online platform, public authorities and institutions will communicate via electronic mail. The manner in which the electronic documents are to be communicated will be published by the public authorities or institutions on their websites.

Equally relevant, EO 38/2020 does not apply to the public authorities mentioned under Title III, Chapter I, II and VI of the Romanian Constitution (i.e. Parliament, President, courts of law, Public Ministry and Superior Council of Magistracy).

Moreover, taking into account the need to ensure the continuity of the provision of qualified trust services by an authority whose activities allow them to be provided on a continuous basis (including during the entire period of the development of the state of emergency), as opposed to private legal entities whose activities can be affected by interruptions caused by unforeseen circumstances, the Romanian government has also amended the Electronic Signature Law by including the Special Telecommunications Service (“STS”) as a qualified certification provider.

The Electronic Signature Law was amended by Emergency Ordinance no. 39 dated 2 April 2020, published on 3 April 2020 in the Romanian Official Gazette Part I, no. 281 (“EO 39/2020”), whereby STS has been designated to provide qualified certification services intended exclusively for authorised personnel within public institutions and authorities, for the purpose of performing their functional duties.

As an exception to the general provisions of the Electronic Signature Law, STS has the obligation to notify the specialised regulatory and supervisory authority regarding the commencement of activities related to electronic signature certification three days prior to their commencement.

All in all, the context of the coronavirus pandemic has led to the enhancement of electronic communication means not only in the private sector, but also in interactions between the private and public sectors. We can conclude by saying that, during this period, the Romanian government has adopted the most important digitalisation measure in recent years. However, with regard to the new status of STS as a qualified certification services provider, the contrary opinions of digitalisation specialists were not long in coming.