Electronic signatures in the Czech Republic
Source: Legal Industry Review, May 2024
Authors: Mgr. et Mgr. Ing. Jan Tomíšek, Ph.D., Mgr. Ing. Ivan Fencl
Electronic signatures are a common part of legal transactions in the 21st century. In Czechia, the regulation is straightforward due to Regulation (EU) 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) (eIDAS) and Czech implementing laws. Yet, the Czech case law and professional community interpret and apply the rules inconsistently. As the case law of high courts in Czechia is limited, it creates legal uncertainty about how to use e-signatures in practice, especially in relation to simple e-signatures used for written-form documents.
Within case law and professional discourse there are two main streams of argumentation regarding the use of simple e-signatures where written form is required.
Argument Against Simple Electronic Signatures for Written Form
The first argument is that despite being a valid signature, a simple e-signature cannot be used for written-form documents as it does not guarantee either the content of the document or the acting person. This opinion is supported by recent district court decisions (30 C 349/2023-26 dated 14.12.2023 or 1 C 62/2023 dated 7.6.2023). Also, it is argued that according to Article 25 of eIDAS, only a qualified e-signature has the same legal effect as a handwritten signature (48 C 379/2023-12 dated 10.1.2024).
The second argument, which we strongly support, is that a simple e-signature can also be used for legal acts where written form is required. The current legislation does not require the signatory’s identification as such. Identification is an evidentiary issue not a question of the (in)validity of the legal act.
Legal Interpretation of Written Form Requirements
Based on the interpretation of Act No. 89/2012 Coll., Civil Code and Act No. 297/2016 Coll., on Trust Services for Electronic Transactions, where written form is required, it is sufficient to either use any e-signature, including the simple one (with no identification requirement), or to act even without an e-signature if the content of the contract can be captured and the acting person can be identified. The methods are complementary. Signatures may have an identifying function, but it is not the primary purpose. Even handwritten signatures do not identify the acting person, yet courts do not question their validity. The primary means of identification are the contract letterhead or the means of electronic identification, not signatures.
Opinion that simple electronic signatures have the same legal effects as handwritten documents is also supported by recent case law (56 Co 225/2023- 96 dated 17.1.2024 and 20 C 179/2022-18 dated 15.11.2022).
The Future of Electronic Signatures: Impact of Revised eIDAS Regulation
In our opinion, the current legislation is clear and comprehensive. It does not require any amendments, despite interpretation inconsistencies. We believe that the new revised eIDAS regulation might overcome the current inconsistencies. The new regulation does not change the approach to e-signatures very much. However, it should allow Europeans to obtain their personal qualified certificates in digital wallets. This approach will significantly reduce the use of simple e-signatures. Where written form is required, everyone can easily use their qualified e-signature in a digital wallet.
