eSignature Legality in Poland

eSignature Legality Summary

Under Polish law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Art. 60 and Art. 66 of the Polish Civil Code), unless the law requires a specific form to conclude a given contract. Depending on the type of  contract, Polish law provides for varying minimum-level formalities. Sanctions for not keeping the required formality vary—they can either cause the agreement to be invalid or make certain effects of a contract ineffective. If Polish law does not require a written form to be used, the "document form" is sufficient (e.g., a pdf copy, email, etc.). Wherever Polish law specifically requires a written form (with ink signature), a qualified electronic signature may be used instead. This is subject to the other party consenting to the electronic form being used, and sometimes technical limitations. However, qualified electronic signatures will not work if the law requires a stronger form (e.g., writing with notarized signature, or notarial deed).

To prove a contract is valid, the parties sometimes have to present evidence in court supporting 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 The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.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.

In Poland the eIDAS Regulation is accompanied by the Act of 5 September 2016 on Trust and Electronic Identification Services, which contains general provisions on trust services in Poland. The Act amended a number of Polish acts to ensure their compliance with the eIDAS Regulation by clarifying certain national provisions and eliminating the provisions that were not compliant with the eIDAS Regulation.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

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

• consumer agreements, including new retail account opening documents, sales terms, service terms, software licenses (except for exclusive licenses), purchase orders, order confirmations, invoices, shipment documentation, user manuals, policies (except for consumer loan agreements)

• residential and commercial lease agreements

• licenses of copyright, including software license agreements except for exclusive licenses)

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 – declaration of will that requires written form (Art. 78 of the Civil Code)

• QES - certain HR documents subject to civil law (other than Labour Code), such as non-disclosure agreements, employee invention agreements or privacy notices.

• QES – license to industrial property rights (art. 76.1, art. 100.1, art. 118.1 and art. 163.1 of the Industrial Property Law) or exclusive license to copyrights (art. 67.5 of the Copyright Act)

• QES - transfer of industrial property rights (art. 12.2 of the Industrial Property Law) or transfer of copyrights (art. 53 of the Copyright Act).

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 - HR documents such as employment contracts, benefits paperwork and termination notices (art. 29 § 2 of the Labor Code) and any other documents for which the Labor Code requires an ink signature. Please note that while the provisions of the Civil Code are applicable to the employment relations (art. 300 of the Civil Code), in practice at the moment the Chief Labour Inspectorate (Państwowa Inspekcja Pracy), the body which supervises and controls the observance of the labour law in Poland, does not allow the use of any type of electronic signature in employment relations where ink signature is required. Therefore, the use of ink signature for such documents is required.

• Notarization - real property transactions (art. 158 of the Civil Code)

• Handwritten or notarization - depending on the subject of the security

• Handwritten or notarization - family law documents, such as wills, marriage contracts (art. 1 Polish Family and Guardianship Code), inheritance contracts (art. 950, art. 981 (1)) and art. 1037 para. 2 of the Civil Code), contracts waiving inheritance (art. 1048/1049/1050 of the Civil Code), and inheritance sales (art. 1052 para 3 Civil Code)

• Notarization - articles of incorporation for certain entities, including limited partnership (art. 106), partnership limited by shares (art. 131), limited liability company (art. 157 § 2) and joint-stock company (art. 301 § 2 of the Commercial Companies Code)

• Notarization - transfer of shares or transfer or lease of an enterprise or the establishment of usufruct thereon (art. 75 (1) Civil Code).

• Handwritten - corporate shareholder resolutions

• Handwritten - all decisions issued by the (government) administration (art. 14 of the Administrative Procedure Code)

[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.

Local Technology Standards

As a Tiered eSignature Legal Model country, Poland supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. While QES is only legally required for limited types of transactions, as previously discussed, Poland, as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In addition, pursuant to Article 137 of the Act of 5 September 2016 on Trust and Electronic Identification Services, as of 1 July 2018, the algorithm of the SHA-1 abbreviation function used for QES, AES, or advanced electronic seals should be replaced by the SHA-2 abbreviation function algorithm, unless technical requirements resulting from executive acts issued on the basis of the eIDAS Regulation 910/20141 exclude the possibility of using this abbreviation function.  In compliance with the EU Directive 1999/93/EC on Electronic Signatures, Poland maintains a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.