The Bulgarian Law on e-Document and e-Signature rendered in compliance with the eIDAS Regulation
The main act of legislation on EU level regulating electronic signatures in the EU, including Bulgaria, is Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (“eIDAS Regulation”) which became effective as from 1 July 2016. The eIDAS Regulation is directly applicable in all EU member states, including Bulgaria.
By recent amendments, promulgated in State Gazette, No 85 dated 24 October 2017, the main national statutory act regulating the use of electronic documents and electronic signatures in Bulgaria, namely the Law on Electronic Document and Electronic Signature (“LEDES”), has been aligned with the eIDAS Regulation.
Thus, the LEDES, in line with the eIDAS Regulation, recognizes and regulates three types of electronic signatures: (i) simple electronic signature (“SES”) – widely defined as data in electronic form, which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign; (ii) advanced electronic signature (“AES”) – defined as an electronic signature, which (a) is capable of identifying the signatory, (b) is uniquely linked to the signatory, (c) is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and (d) is linked to the data signed therewith in such a way that any subsequent change in the data is detectable; and (iii) qualified electronic signature (“QES”) – defined as an advanced electronic signature which in addition is (a) created by a qualified electronic signature creation device, and (b) based on a qualified certificate for electronic signatures. Both the eIDAS Regulation and the LEDES are technology-neutral.
Pursuant to the restrictions set out in the LEDES (in line with the eIDAS Regulation), the use of electronic signatures (of all types, including QES) is expressly prohibited for the following two categories of transactions: (i) transactions where the law requires a qualified written form (such as, contracts for transfer of real estates, contracts for transfer of shares in a limited liability company, contracts for transfer of a going concern, etc.) and (ii) transactions where possession of the document or a duplicate thereof has legal effects (such as, securities, bills of lading, etc.).
Pursuant to the LEDES (again in line with the eIDAS Regulation), only the QES shall have the legal effect of a hand-written signature via-à-vis all third parties, by operation of the law, i.e. electronic documents signed with a QES shall, by operation of the law, be considered as equivalent to paper documents signed with a traditional handwritten signature and accordingly shall have the same legal effect. The eIDAS Regulation further provides for mutual recognition of QES from all EU member states. Concerning the legal effect of the SES and the AES, the LEDES (in line with the eIDAS Regulation) provides that the parties may agree that they will recognize the legal effect of the SES and the AES as hand-written signature in the relations between them, i.e. only if such an agreement is reached between the parties, the SES and the AES may be considered as having the same effect as a hand-written signature in the relations between the parties.
In compliance with the eIDAS Regulation, the LEDES regulates also the provision of trust services, the requirements to the activity of trust service providers and their liability.
In addition to the eIDAS Regulation and the LEDES, separate legal provisions governing the use of electronic signatures for particular types of transactions are scattered throughout special national laws governing particular legal areas. The above-mentioned law on amendment and supplement of the LEDES introduced also amendments to numerous national laws regulating various matters (such as the Labour Code, the Insurance Code, the Law on Personal Data Protection, the Law on Electronic Communications, the Law on Public Procurement, etc.), as the amendments relate to the use of electronic signatures in the respective areas, governed by special legislation.
The above discussed recent legislative amendments to the LEDES enter into effect as of 28 October 2017. Within 9 months as of their entry into force, the government and municipal bodies shall render the secondary legislation adopted by such bodies, in compliance with the LEDES as amended.