Electronic Signature: Types and Legal Value

Why the Type of Electronic Signature Matters

The fact that a document is signed electronically does not automatically mean that all signatures have the same legal value. The differences between a simple electronic signature, an advanced electronic signature and a qualified electronic signature concern the level of identification of the signatory, control over the signature creation data and the safeguards regarding the integrity of the document.

In Romania, the analysis must be carried out together with Regulamentul (UE) nr. 910/2014 (the EU act on electronic identification and trust services, known as the eIDAS Regulation), Legea nr. 214/2024 (the Romanian legislation governing the use of electronic signatures and electronic time stamps and the provision of trust services based on them) and the special law applicable to the relevant contract or transaction.

This distinction is particularly important in the lending process, where credit institutions frequently use qualified electronic signatures provided through qualified trust service providers, also known by the acronym QTSP.

The Three Levels of Electronic Signature

Simple or Non-Qualified Electronic Signature

In practice, it is often referred to as a simple electronic signature. It may consist of entering a name at the end of a message, ticking a box, clicking an acceptance button, using a graphical signature or attaching an image of a handwritten signature.

Not every click of a button automatically constitutes an electronic signature. For a signature to exist, it must be assessed whether the action was associated with the document and whether it expressed the person’s intention to sign or to assume responsibility for its content.

Under Regulamentul (UE) nr. 910/2014, an electronic signature may not be denied legal effect or admissibility as evidence solely on the grounds that it is in electronic form or that it is not a qualified electronic signature. However, this rule does not mean that a simple signature is equivalent, in all circumstances, to a handwritten signature.

In the event of a dispute, the court may examine the person’s identity, how the signing action was carried out, the integrity of the document, the existence of consent and the reliability of the system used.

Advanced Electronic Signature

An advanced electronic signature provides stronger technical safeguards than a simple signature. In order to qualify as advanced, it must, essentially:

• be uniquely linked to the signatory;
• be capable of identifying the signatory;
• be created using signature creation data under the signatory’s control, with a sufficient level of confidence;
• be linked to the signed data in such a way that any subsequent modification of the document can be detected.

An advanced signature is not, by definition, a qualified signature and does not necessarily involve a qualified certificate. It may nevertheless have significant evidentiary value, depending on the technical solution used and the circumstances in which it was applied.

The specific legal effect of an advanced signature may depend on Legea nr. 214/2024, a special law, the nature of the document and the parties’ agreement. The parties’ agreement cannot override mandatory statutory form requirements.

Qualified Electronic Signature

A qualified electronic signature is an advanced electronic signature that meets two additional conditions:

• it is created using a qualified electronic signature creation device;
• it is based on a qualified certificate for electronic signatures issued by a qualified trust service provider.

The qualified device may be physical or may operate remotely within a secure system administered by the trust service provider. Therefore, the fact that the user signs through an application and confirms the transaction by means of a code or multifactor authentication does not exclude the existence of a qualified signature. The code received by SMS or the in-app notification do not, by themselves, constitute the qualified signature; they are mechanisms for authenticating and authorising the user.

The qualified certificate and the qualified signature are not the same thing. The certificate links the validation data to the signatory’s identity, whereas the signature is the result of applying that data to a document by means of an appropriate device.

What Is the Legal Value of Each Signature?

The General Rule Under European Law

Regulamentul (UE) nr. 910/2014 provides that an electronic signature may not be denied legal effect or admissibility as evidence in legal proceedings solely because it is electronic or because it is not qualified.

In the case of a qualified electronic signature, the rule is stronger: in all Member States of the European Union, it has a legal effect equivalent to that of a handwritten signature.

This equivalence does not mean that a qualified signature resolves every legal issue. It does not, in itself, prove that the signatory understood all the clauses, had full legal capacity, was not misled or that the document complies with all the requirements imposed by consumer protection legislation.

What Legea nr. 214/2024 Clarifies

Legea nr. 214/2024 was intended to provide an updated national framework for the use of electronic signatures, electronic time stamps and trust services, in connection with the European rules. It does not create a fourth category of signature and does not replace the European definitions of simple, advanced and qualified signatures.

For simple and advanced signatures, the specific effect must be determined on a case-by-case basis. The relevant factors include the type of document, the statutory form requirement, how the signatory was identified, the integrity of the document, the applicable special rules and any agreements between the parties.

By contrast, for a qualified signature, the equivalence with a handwritten signature follows directly from Regulamentul (UE) nr. 910/2014. National law cannot restrict this effect and cannot turn a non-qualified certificate into a qualified certificate.

Electronic Signatures in the Lending Process

Why a Qualified Certificate Is Used

In the lending process, the credit institution must be able to identify the borrower, demonstrate which document was accepted and retain evidence of when and how consent was expressed. A qualified signature provides a high level of assurance regarding identity, document integrity and the verifiability of the transaction.

In certain workflows, the credit institution provides the client with access to a signing solution supplied by a QTSP. The credit institution and the trust service provider have different roles: the bank may use the service and send the documents for signing, while the QTSP issues the qualified certificate and provides the trust service. The credit institution does not automatically become a QTSP merely because it integrates the signing solution into its process.

The fact that a bank requires a qualified signature may be related to the applicable legal requirements, its risk policy, the need to prove the contract or the characteristics of the product. However, it does not follow that every loan agreement would require a qualified signature in all circumstances. The requirement must be verified in relation to the specific document and the applicable special legislation.

What a Consumer Should Check

1. What they are signing. The consumer must be able to see the final form of the contract, the annexes, the repayment schedule, the costs and the general terms and conditions before confirming the signature.
2. What type of signature is being used. An image of a signature or confirmation by code does not, by itself, prove that the document bears a qualified signature. The type of signature must be verified in the certificate and the validation report.
3. Who the signatory is. In the case of a loan involving co-borrowers or guarantors, each person must sign in their own name and in respect of the documents that are enforceable against them.
4. Who the trust service provider is. For a qualified signature, the provider and the qualified status of the service must be verifiable in the relevant trusted lists at the time of signing.
5. Which documents must be retained. It is recommended that the original electronic file be retained, not merely a printed or scanned version, together with the validation result and, if available, the electronic time stamp or proof of long-term validation.
6. How authentication data is protected. Codes, passwords, authentication applications and authorisation means must not be shared with other persons. If unknown transactions or incorrect data appear in the certificate, signing must be stopped and the matter clarified with the credit institution and the relevant provider.

What Must Not Be Confused with an Electronic Signature

• Electronic time stamps may help prove the date and time and protect the integrity of the data, but they do not, in themselves, express a person’s consent.
• An electronic seal is associated with a legal person and may confirm the origin and integrity of a document. It does not automatically replace the signature of a natural person when the law or the contract requires that person to sign.
• Electronic identification shows who accesses a system, but not every form of identification is also an electronic signature.
• A printed copy of an electronic document does not retain all the technical information necessary to validate the signature. For evidentiary purposes, the electronic original is generally the relevant document.

The Connection with eIDAS 2.0

The expression eIDAS 2.0 refers primarily to the amendments made to the European framework by Regulamentul (UE) 2024/1183 (the EU act updating the European digital identity framework). From a legal perspective, this does not involve the disappearance of Regulamentul (UE) nr. 910/2014, but rather its amendment and extension.

The new European framework introduces, among other things, elements such as the European Digital Identity Wallet and electronic attestations of attributes. The practical implementation of these mechanisms is phased, and not all components become applicable at the same time.

Regulamentul (UE) 2024/1183 does not eliminate the three levels of electronic signature and does not change the rule under which a qualified signature has an effect equivalent to that of a handwritten signature. Consequently, the fact that Legea nr. 214/2024 and the new European rules are not perfectly synchronised does not mean that the European requirements concerning qualified signatures may be disregarded. In the event of an inconsistency, the European regulation applies within the limits of its competence.

Conclusion

For the consumer, the essential question is not only whether a document was signed electronically, but what type of signature was used, who issued the certificate, how the signature can be verified and what form requirements apply to the relevant document.

A simple signature may have evidentiary value, an advanced signature provides stronger technical safeguards, and a qualified signature benefits from legal equivalence with a handwritten signature. However, none of them replaces an analysis of the contract, consent and the applicable special requirements, including in the area of lending.