eSignature Legality in Romania

eSignature Legality Summary

Under Romanian law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent persons reach an agreement, whether they agree verbally, electronically or in a physical paper document (Article 1166 of the Romanian Civil Code). To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under Article 266, 267, corroborated with Articles 283, 284 or 310 of the Romanian Civil Procedure Code, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.

The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• certain HR documents, such as non-disclosure agreements, privacy notices and other employee on boarding processes (except employment contracts and termination notices)

• commercial agreements between corporate entities, including non-disclosure agreements, purchase orders, order acknowledgements, invoices, other procurement documents, sales agreements, distribution agreements, service agreements

• consumer agreements, including new retail account opening documents, sales terms, services terms, purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES

Use cases where an electronic signature other than SES may be required include:

• QES - employment contracts (Article 16 of the Labor Code)

• QES - insurance agreements (Article 2200 of the Romanian Civil Code)

• QES - land lease agreement (Article 1838 of the Romanian Civil Code)

• QES - stand-alone acknowledgements of debt (Article 275 of the Romanian Procedure code)

• QES - articles of incorporation of a limited liability company, with some exceptions (Article 5 of the Law no. 31/1990 on Companies law)

• QES - termination of agreements (Article 1552 of the Romanian Civil Code)

• QES - IP agreements, with some exceptions (Article 42 of the Law 8/1996 of the Copyright law)

• QES - notifications made by the creditor to the consumer in consumer loan agreements (Article 44 of the Government Emergency Ordinance regarding consumer loans)

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

• Handwritten or authentic[3] - wills (Article 1041 of the Romanian Civil Code)

• Notarization - transfer/establishment of real rights (Article 1244 of the Romanian Civil Code)

• Notarization - certain contracts governed by family law, such as: prenuptial agreements (Article 330 of the Romanian Civil Code), liquidation of the matrimonial regime of legal community (Article 355 of the Romanian Civil Code), partition deed between spouses during the legal community (Article 358 of the Romanian Civil Code)

• Notarization - donation agreements (Article 1011 of Romanian Civil Code)

• Notarization - movable mortgage agreement (Article 2388 of the Romanian Civil Code) and immovable mortgage agreements (Article 2378 of Romanian Civil Code)

• Notarization - alimony agreements (Article 2255 of the Romanian Civil Code)

• Notarization - certain contracts governed by the law of succession, such as inheritance sales (Article 1747 of the Romanian Civil Code), waiving inheritance statements (Article 1120 of the Romanian Civil Code)

• Notarization - personal guarantee agreements (Article 2282 of the Romanian Civil Code)

• Notarization - articles of incorporation where: (a) real estate is part of the contribution to the company share capital; establishment of general partnership or limited partnership companies; or (c) a joint stock company is established by public subscription

• Notarization - sworn statements given by the founders/directors/members of the board of directors attesting the fulfillment of the legal conditions provided by the Romanian legislation (Article 69 of Order no. 2594/2008 regarding the manner of keeping the registers of the Trade Registry, register performance and issuance of relevant information) (“Order no. 2594/2008”)

• Notarization - sworn statements given by natural and legal persons that are not fiscally registered in Romania attesting that no fiscal debts exist (Article 69 of Order no. 2594/2008)

• Notarization – Sales agreements regarding immoveable property (Art. 10 of Law no. 114/1996)

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

[3] The handwritten will shall be entirely written, dated and signed by the testator’s hand. Otherwise, such testament document shall be considered null and void. The authentic will shall be dictated to a notary and then signed by the testator.

Local Technology Standards

As a Tiered eSignature Legal Model country, Romania supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. In compliance with the EU Regulation No. 910/2014 on Electronic identification and trust services for electronic transactions in the internal market, Romania maintains a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.