An electronic seal is an interesting and perhaps underappreciated tool that can improve the efficiency of the digital economy. I recently had an opportunity take part in the deliberations of a working group operating under the aegis of the Ministry of Digital Affairs and the Coalition for Polish Innovation exploring the possibility of expanding the legal significance of the electronic seal. We identified particular potential of the electronic seal in the context of automated trade. These efforts led to the drafting of working materials (available here). While expansion of the legal significance of the electronic seal seems like an interesting idea, it was also obvious to us that such a procedure would require major systemic changes in the existing regulations. Meanwhile, the modest change in the executive regulations under Art. 7 of the Banking Law may prove the first step in expanding the legal significance of the electronic seal.

Currently this seal has a significance framed first
and foremost by the eIDAS Regulation. From the technological side, it is an
instrument very similar to the electronic signature. As in the case of
signatures, the eIDAS Regulation distinguishes between three categories of
seals. Despite the similarities, the legal consequences of using an electronic
seal and using an electronic signature are regulated differently. According to Art. 35(2)
of the eIDAS Regulation, “A qualified electronic seal shall enjoy the
presumption of integrity of the data and of correctness of the origin of that
data to which the qualified electronic seal is linked.” In turn, Art. 25(2)
provides, “A qualified electronic signature shall have the equivalent legal effect
of a handwritten signature.”

The rules set forth in the eIDAS Regulation are
reflected in the Polish Civil Code. Under Civil Code Art. 78¹, a
declaration of will made in electronic form (and thus using a qualified
electronic signature) is equivalent to a declaration of will made in writing. Therefore
an electronic signature may be used to perform a legal action that requires
written form. The absence of a comparable provision with respect to the
electronic seal means that this instrument cannot be used to perform legal actions
that require written form. This does not mean, however, that such a seal cannot
be used at all to carry out legal actions. It appears that in light of the
general rule set forth in Civil Code Art. 60 (“Subject to the exceptions provided for in this act, the will of a
person carrying out a legal transaction may be expressed by any behaviour of
the person that adequately discloses the person’s will, including disclosure of
that will in electronic form”), it cannot be excluded that an electronic
seal may be an instrument for effective submission of declarations of will. The
limits for use of this instrument will be indicated by the specific
requirements as to the form of particular legal actions.

The executive regulation clearly determines that an
electronic seal may be used to create documents connected with banking
activities on IT data carriers. Such a document may be created by recording
data connected with one or more banking activities on an electronic document,
and affixing to the document an electronic signature or electronic seal. This
provision permits the creation of documents using any electronic seal, but use
of a seal other than a qualified seal for this purpose requires an agreement of
the parties.

This provision assumes its full importance in light of
Art. 7 of the Banking Law. Art. 7(1) provides, “Declarations of will
connected with performance of banking activities may be made in electronic
form.” Art. 7(3), in turn, states, “If the act provides for written form for an
activity, it shall be deemed that an activity made in the form referred to in
par. 1 meets the requirement of written form also when this form is
provided for under pain of invalidity.” It is quite consistently accepted in
the legal literature that this provision (although not perfectly worded, as it
cross-references only Art. 7(1) of the Banking Law) should be interpreted
as referring to an action taken, and documents prepared, in accordance with the
executive regulation issued under Art. 7 of the Banking Law.

After entry into force of the executive regulation, this interpretation of Art. 7(3) will mean that a legal action made using an electronic seal in compliance with the executive regulation can fulfil the requirement of written form. This would thus carry out a practical expansion of the legal significance of an electronic seal. This would be limited to a certain category of legal actions, but would nonetheless constitute a material modification of the existing rules governing this instrument. The next few months should reveal whether the legal literature and commercial practice are prepared to accept such an interpretation of Art. 7 of the Banking Law and the new executive regulation.

Krzysztof Wojdyło