Making Social Distancing Effective
Following the state of emergency established pursuant to Decree no. 195 of 16 March 2020 the public administration authorities were bound to implement various measures to organize their activity, including through the use of electronic means of communication, so to avoid the direct contact between persons to the largest extent possible. The Government Emergency Ordinance no. 38 on the use of electronic documents by the public authorities and institutions was therefore adopted and published in the Official Gazette no. 289 of 7 April 2020 (“GEO 38/2020”) in a slightly delayed, but hopefully efficient move towards digitalization, curb bureaucracy and foster effective social distancing.
The Ambit of GEO 38/2020
GEO 38/2020 sets forth general rules on the use of the electronic signature and electronic documents by the public authorities and institutions ("Authorities").
By way of exception, the legal provisions under GEO 38 do not apply to:
• The Parliament;
• The President of Romania;
• The judicial authority.
GEO 38/2020 imports the definitions set forth under Article 3 of Regulation no. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (“Regulation 910/2014”).
Types of Electronic Signature Used By The Authorities (Article 3)
As a rule, the documents issued in electronic form by the Authorities will bear a qualified electronic signature and will be thus assimilated to authenticated documents. According to Regulation 910/2014, a qualified electronic signature means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.
Still, the Authorities are granted full discretion as regards the type of electronic signature applicable to their internal documents issued in electronic form, with the latter being defined in Regulation 910/2014 as any content stored in electronic form, in particular text or sound, visual or audiovisual.
The Obligation To Accept Electronic Signature Documents (Article 5)
As of the entry into force of GEO 38/2020 on 7 April 2020, the Authorities are bound to accept documents signed with electronic signature. Specifically, the Authorities may establish the type of electronic signature applicable for the use by individuals or legal entities of an online service provided by such authorities, in accordance with Regulation 910/2014.
To this end, the Authorities must issue administrative deeds setting forth the types of electronic signature that may be used by individuals or legal persons, not later than 15 days as of the entry into force of GEO 38/2020, that is by 22 April 2020.
We note that the documents signed with an advanced electronic signature, which are sent using authentication mechanisms of a substantial or high level, are assimilated to documents under private signature as regards their conditions and effects.
According to Regulation 910/2014, the advanced electronic signature means an electronic signature which meets the following requirements:
• it is uniquely linked to the signatory;
• it is capable of identifying the signatory;
• it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
• it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
As regards authentication, Regulation 910/2014 defines it as an electronic process that enables the electronic identification of a natural or legal person, or the origin and integrity of data in electronic form to be confirmed.
The Receipt Of Electronic Documents (Article 6)
In order to receive electronic documents, the Authorities may either (a) make available their own websites, or (b) use such instruments and means provided by third parties. However, if the electronic documents cannot be received in these two manners, the Authorities are bound to use the electronic mail to such end. Further, the Authorities are bound to publish online information on the manner in which it accepts the electronic documents.
The deeds issued by the Authorities following the receipt of electronic documents from individuals or legal persons shall be delivered, in their turn, in electronic form, unless the applicant requests otherwise.
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