The validity and authenticity of e-signatures within the European Union and the Republic of Cyprus

The Covid-19 pandemic has transformed business culture worldwide, fast-forwarding most sectors, including the legal, judicial, commercial, corporate and financial, into a new electronic era. The question that arises is often that of the validity and authenticity of electronic signatures.

The European Union has created a concrete legal framework concerning the effect and validity of all electronic transactions, including electronic signatures, electronic seals, electronic documents and operations. The EU Regulation 910/2014/EU is directly applicable in all member-states, however, the Republic of Cyprus has incorporated it’s provisions through the Law 55(I)/2018 “providing for a legal framework for electronic identification and related issues”, in order to transpose all necessary specifications for their most efficient implementation and legal validity. The Law focuses particularly on electronic signatures and certification services.

According to article 25 of the EU Regulation, an electronic signature is valid and cannot be deprived of legal effect and/or admissibility in terms of evidential support in legal proceedings on the basis of it’s electronic form. There are 3 types of e-signatures recognized by the Regulation:

i) The Electronic Signature, as defined in article 3.10 of the Regulation, is considered to be data in electronic form which is attached to, or logically associated with, other electronic data and which is used by the signatory’s sign.
ii) The Advanced Electronic Signature is the one meeting the requirements of Article 26:
(a) it is uniquely linked to the signatory;
(b) it is capable of identifying the signatory;
(c ) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control;
(d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
iii) The Qualified Electronic Signature is the one that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures issued by a Qualified Trust Service Provider. This e-signature is considered to have the highest judicial value and is usually applied in sensitive operations before public administrative organs.

It is of striking importance to highlight the fact that only a qualified electronic signature bares an equivalent legal effect to a handwritten signature, as it carries the necessary provisions for a legal action. Nevertheless, Cypriot Law in it’s section 9 states that an e- signature may still be admitted as evidential support in legal proceedings in the Republic, even if it is not considered to be a Qualified Electronic Signature, upon the Courts’ discretion. Due to the recency of the legislation, there has been no trial on the matter so far, so there is no judicial precedent as to how the Cypriot Courts would reason and/or exercise such a discretion of admissibility.

The administrative authority competent for the application of the EU Regulation and national Law, according to the EU standards, as provided by the European commission, is  the Department of Electronic Communications of the Ministry of Communications and Works of Cyprus. For electronic signatures operated and/or governed by jurisdictions of third countries, outside the borders of the EU, the national Law of the country of execution of the document is applicable.

The present article is for informational purposes only and does not, under any circumstances, constitute legal advice. For further information on the subject, please contact Arsen Theofanidis LLC and one of our legal consultants shall be glad to assist you.

Nika Kalifatidou
Advocate – Legal Consultant
Arsen Theofanidis LLC