1. General legal principles

1.1 Legal proceedings

According to the general legislation of the Czech legal system contained in Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the "Civil Code") is a prerequisite for the validity of a legal transaction in written form, which e.g. concludes a contract, but also unilateral legal transactions (declaration , initiative, etc.), including the attachment of the signatures of the parties involved. The requirements of a valid legal transaction in written form, with an emphasis on private documents, are regulated in particular by the following provisions (substantial excerpts from the authors):

§ 561

(1) The signature of the person acting is required for the validity of a legal act made in writing. A signature may be replaced by mechanical means where this is customary. Another legal regulation stipulates how a document can be signed electronically in a legal transaction made by electronic means.

§ 562

(1) The written form is preserved even in legal proceedings carried out by electronic or other technical means enabling the capture of its content and the determination of the acting person.

§ 565

It is up to anyone who invokes a private document to prove its authenticity and correctness. If a private document is used against the person who apparently signed the document, or against its heir or against the person who acquired the property during the transformation of the legal entity as its legal successor, the authenticity and correctness of the document is deemed to have been acknowledged.

§ 574

Legal action should be viewed as valid rather than invalid.

§ 586

(2) If the authorized person does not object to the invalidity of the legal act, the legal act is considered valid.

1.2 Electronic signature

Electronic means enabling legal proceedings to be carried out remotely, without the need for physical presence, are increasingly popular among users. The possibilities of electronic identification and trust-building services are currently regulated primarily in the eIDAS regulation[1] and subsequently in a special law[2]. The key part is, of course, the modification of the electronic signature.

The current legislation contains the following basic types of electronic signatures, which differ from each other primarily in terms of the degree of authenticity:

1. "simple" (simple) electronic signature,
2. guaranteed electronic signature (meets the requirements set out in Article 26 of the eIDAS regulation),
3. guaranteed electronic signature based on a qualified certificate for an electronic signature (a qualified certificate meets the requirements set out in Annex I of the eIDAS regulation),
4. qualified electronic signature (it is created by a qualified means of creating electronic signatures and is based on a qualified certificate for electronic signatures).

The legislator uses for el. signatures under point c. and d. above summary legislative abbreviation recognized electronic signature (see the provision of § 6 paragraph 2 of the Act cited below),

1.3 Types of entities

According to the type of actor or addressee of the legal action, the Act defines the requirements for the type of electronic signature required in the provisions of § 6 and 7 in such a way that "signing with an electronic signature can be used qualified only electronic signature, if he signs an electronic document by which performs an action or acts legally state, territorial self-governing entity, legal entity established by law or legal entity established or founded by the state, territorial self-governing entity or legal entity established by law or their body or other part thereof (hereinafter referred to as "public signatory"), or the act is performed by a person not mentioned in letter a) in the performance of his duties. "

According to the addressee of the legal proceedings, the Act stipulates that "can be used to sign with an electronic signature only recognized (definition see above - authors' note) electronic signature, if an electronic document is signed, by which an act is performed towards the public signatory or another person in connection with the performance of their mandate."

Last but not least, the law stipulates the requirements for the electronic signature used in the remaining clause §7 of the Act: "k signing with an electronic signature, you can use a guaranteed electronic signature, a recognized electronic signature, or another type of electronic signature, when signing an electronic document that is legally binding in a manner other than the manner specified in § 5. "

It follows from the above that a public law signatory can legally act electronically only with the use of a qualified electronic signature, in relation to a public law signatory in connection with the exercise of its authority, an electronic signature is considered a handwritten signature only with the use of a recognized electronic signature, in other cases, and therefore also in all private law legal proceedings, it is then possible to legally act with all available types of electronic signature, including e. signature of the so-called simple.

A certain amount of caution is necessary, especially in the knowledge that a simple electronic signature can be practically any form of signature, including a scanned form of a handwritten signature, but also just an ordinary mention of a name at the end of an e-mail message. It is clear from the above that it is not at all difficult to forge this type of signature, regardless of the possible legal consequences of such an action, the analysis of which is not the subject of this consideration. In this context, it is possible to emphasize, for example, the general obligation of legal entities to act with the care of a proper householder and the resulting requirements for legal bindingness and enforceability of legal relationships into which such a person enters.

In general, it can be stated that the requirement of a private law entity as a subject of legal relations regarding the degree of formality of a specific legal transaction should be proportionate to the matter being dealt with, taking into account the legal requirements for selected legal transactions.

1.4 Means of electronic identification of the acting person

An integral part of all types of electronic signatures is the more or less trustworthy and unambiguous association of the signature with the signatory. In the case of simple electronic signatures, this connection is ensured by trust in the correctness of the asserted identification of the person acting, and in the case of higher forms of electronic signature, then, as a rule, by unambiguous previous physical and ad hoc and remote identification of the person.

Safe and guaranteed remote electronic verification of the identity of the person acting is the essence of the recognition and binding of an electronically signed document. If the subject of the legal relationship does not want to be exposed to uncertainty, if a specific obligation from an electronically signed contract is legally significant, binding and enforceable, the only option is to turn to identification means issued in accordance with the Electronic Identification Act[3] a qualified administrator – a provider of identification means that has received accreditation from the Ministry of the Interior and is connected to the National Point for Identification and Authentication (NIA).

The state offers the following means of identification:

1. Identity card with an activated contact electronic chip issued by the Ministry of the Interior of the Czech Republic after July 1, 7,
2. NIA ID – free identification means issued by the Digital Information Agency,
3. Mobile eGovernment key – a free identification means, which represents the use of login without the need to enter additional verification codes, issued by the Digital Information Agency.

Private Qualified Providers currently offer the following means of identification:

1. MyID provided by the CZ.NIC association, an interest association of legal entities,
2. BankID provided separately by 9 banking institutions as part of Banking Identity,
3. Starcos chip card the company První certificatní autorita a.s

1.5 Confidence levels of means of electronic identification

The means of electronic identification are then further evaluated according to the level of guarantee (trust), i.e. the attribute to which extent the given means of authentication is trustworthy:

1. low level refers to a means that offers a limited degree of confidence in the declared or stated identity of a particular person,
   1. considerable level refers to a means that offers a significant degree of confidence in the declared or stated identity of a particular person,
   1. high level refers to a means that offers a higher degree of confidence in the declared or stated identity of a particular person than an electronic identification means with a substantial level of assurance.

The requirements for individual levels of guarantee are defined in Implementing Regulation No. 2015/1502, which contains a total of 16 criteria evaluating the trustworthiness of the provided attributes and authentication means. The resulting value of the confidence level is defined by its weakest link.

One of the determining criteria is e.g. the method of delivery and activation of the means, or e.g. "properties of the means of electronic identification", when:

1. pros low guarantee level requirement for at least one-factor authentication,
2. pros considerable usage guarantee level min. two independent authentication factors,
3. and for high the level of guarantee of such use a means that protects against the creation of duplicates and unauthorized manipulation, i.e. e.g. eID cards or tokens.

It follows from the above that the level of guarantee can be influenced by the user of the means of electronic identification by choosing an authentication method.

2. Validity of legal action

In order for a legal action to be valid, the general legal regulation contained in the Civil Code requires the real, free and serious will of the acting entity. Therefore, if it were proven that the person acting was not aware of the content of the document he signed, such legal action would lack legal effects.

According to the aforementioned provision of § 561, paragraph 1 of the Civil Code, the signature of the person acting is required for the validity of a legal transaction made in written form, while another legal regulation specifies how the document can be signed electronically in a legal transaction made by electronic means. The written form is preserved even in the case of legal proceedings carried out by electronic or other enabling technical means capture of its contents a determination of the acting person (Section 562 paragraph 1 of the Civil Code).

This other regulation is currently the directly applicable eIDAS regulation, which expressly regulates all permissible forms of electronic signatures, including simple electronic signatures, contrary to the previous legislation in force, which contained a requirement for a qualified electronic signature. However, even at the time of its validity, this earlier regulation was the target of criticism from the professional public, and interpretations prevailed according to which a simple electronic signature was sufficient for the validity of a legal act. The new EU-wide regulation of trust-building instruments explicitly confirmed this trend. Publicly available statistics on the use of qualified certificates probably do not exist (at least not available to the authors), but it is clear from the practice of the authors of this treatise that the combination of complex legislation and the financial and technological complexity of measures, use and maintenance of one's own electronic signature is so high that it actually prevents the massive expansion of this technology in the Czech and global population.

All successful services in the segment of electronic services and tools are built on the principle of ease of use for users. At the moment when the given service exceeds the tolerable level of usability, its mass expansion is practically impossible, despite the advantages that the given technology possesses. The disparity between the difficulty and the benefits of electronic legal action implemented through a qualified (recognized) electronic signature is so significant that the user in the sphere of electronic legal action also prefers significant uncertainty in the legal bindingness and enforceability of such legal action, which is considerably simpler to implement.

The actual fulfillment of the electronicization of legal dealings with public administration is therefore largely limited to the "signature fiction" when using the information system of data boxes, in private law relationships where this legal fiction does not apply, various services ensuring the electronic signing of documents are widely used without the need qualified (recognized) electronic certificate, when the legal binding of electronic documents signed in this way depends on the specific technical solution of the given service (in particular, verification of the identity of the signatory in the form of an SMS code and other generally not very reliable means).

It is therefore obvious that the development of legislation, not only in our country, but also at the level of the European Union, has recently tended to weaken the requirement for higher forms of electronic signature and replace it with reliable verification of the identity of the acting entity, i.e. qualified identification and authentication of such an entity.

As already mentioned above, v civil code it is stipulated in § 562 paragraph 1 that the written form is preserved even in the case of legal proceedings carried out by electronic or other enabling technical means capture of its contents a determination of the acting person. With regard to the separation of this regulation from the more general requirement for the signature of a legal transaction in written form, it is even interpreted as meaning that for this legal transaction in electronic form, if the law does not impose another specific requirement on the given specific legal transaction, there is no private law relationship (no ) signature, for example, if the content of such an action is recorded and the acting person is determined.

With regard to the interpretation of other related provisions and established practice, it is recommended to always sign a legal transaction, and in the case of an electronic legal transaction, at least with a so-called simple electronic signature (see above). However, this level of electronic signature is inherently unable to guarantee that the signature was created by the signed person, or that she herself joined him in such a legal proceeding. In the opinion of the authors, the conclusions that declare such legal actions to be absolutely invalid are not sufficiently supported by arguments. However, it must be emphasized that the possible reliability or, in extreme cases, the enforceability of such a legal action before a court may not be clear-cut precisely with regard to the mentioned shortcomings of a simple electronic signature. In the final instance and in concrete terms, the competent court always decides. However, he too will evaluate such legal action only if it is challenged by a party to the dispute and always with regard to the principle of free evaluation of evidence and in the sense of all private law principles, which include the principle of informality, or the prohibition of discrimination against the electronic form of a document contained in the eIDAS regulation. In this context, the judgment of a lower court instance also appeared in the public space, which refused to draw a conclusion about the actions of a specific person from a document signed with a weaker form of electronic signature, but the identification of the acting subject was the weak link in the court's opinion. The combination of a lower form of electronic signature with a qualified form of identification seems sufficient from this point of view.

As for the level of electronic signature, reference can be made to the cited provision of § 7 of the Act, which unequivocally stipulates that in private law relationships it is possible to sign an electronic document with all levels of electronic signature, including e. simple signature. In analogy to the paper form of the document, it will be a handwritten signature in this case as well.

From the interpretation of the requirements for the validity of an electronic legal transaction, it follows that the following is necessary:

a. the identity of the acting subject, a

b. capturing the unambiguous content of the legal action itself.

As far as the unambiguous determination of the identity of the acting subject is concerned, there is certainly not a completely adequate analogy with a handwritten signature, in which the unambiguous determination of the identity of the person signing is practically impossible, although quite a few experts and scientific disciplines deal with the given issue. After all, both in physical and electronic form, the signature is not an instrument of identification of the acting subject, but only a confirmation of the will to be bound by the content of the signed document. The identification itself then takes place by entering the identification data in the signed document. If the law deems it appropriate to ensure a higher degree of certainty for a specific legal act, it sets additional requirements for verifying the identity of the signatory, such as official verification of the signature. Even in the electronic sphere, a distinction is made between the signature of a document and the identification of an acting person.

With electronic identification, the situation is similar, the law does not require any minimum form of identification of the acting person and it is therefore entirely up to the parties to a specific legal action, which form of identification they choose. In the public sphere, on the other hand, this minimum is clearly established and electronic identification is required through a qualified electronic identification system according to § 2 ZEI, at least at a level of trust that is significant according to § 12 of the Act on the Right to Digital Services[4].

In private law relationships, it is generally recommended to maintain the requirement for proper identification of the actors, especially in cases where a legal relationship between the parties is established or changed, in a legally significant situation. It is therefore advisable to carry out proper identification when signing the contract or subsequent amendments, all legally significant actions with a tangible value, but there is no need to be strict in all legal actions, especially if the value of such action is rather negligible (payment of parking fee, etc.).

3. Specifics of electronic legal proceedings in labor relations

The legislation valid until the end of September 2023 was very unfavorable and formalistic for electronic signing and especially the delivery of documents between employer and employee. The increased requirements compared to the general legislation, apparently with regard to the protection of the rights and interests of employees, made electronic legal proceedings in this segment unusable in practice.

From 1 October 10, however, the so-called transposition amendment to the Labor Code implemented by Act No. 2023/281 Coll. is effective, which, with the exception of the most important unilateral legal negotiations regarding the termination of the employment relationship and wage assessments, i.e. the so-called documents with stricter mode of delivery, returns the terms of delivery to the regime of the Civil Code. The additional conditions are already defensible and do not affect the electronic legal proceedings and the delivery of the document itself (this is, for example, communication via the employee's e-mail box, which is not available to the employer, or a special possibility to withdraw from the contract concluded in this way within a period of 2023 days). In particular, the previously necessary confirmation of receipt of the document by the employee (including a recognized electronic signature!), which effectively made electronic delivery impossible, was removed, as the employee could familiarize himself with the delivered document without it being effectively delivered to him. At the same time, with the exceptions mentioned above, in accordance with the described development in this area, the requirement to use higher forms of electronic signature was dropped.

It can therefore be summarized that even in employment relations, with justified exceptions, it is now possible to properly and validly deal electronically with an employee, under the regime of general legal regulation contained in the Civil Code. The entire range of labor negotiations, starting with the employment contracts themselves, their amendments, operating documents and e.g. ending with the termination of employment agreement, is now practically possible to do electronically.

4. Summary

This article does not aim to postulate definite conclusions or recommendations on how to act correctly electronically. The aim was to describe the available options and the legislative framework that governs electronic legal proceedings. The legal regulation of electronic legal proceedings has undergone significant changes in recent years, and it is very likely that the established trend will continue. A significant obstacle to the mass expansion of the electronic signature is precisely its complexity, especially the administrative one, including the demands placed on the users of these tools. Compared to the problem-free acceptance of a simple handwritten signature in practice, the requirements for the technical security of an electronic signature, its long-term validity and recognition, and other aspects of a qualified electronic signature are disproportionately higher or out of place. In fact, it prevents mass use. Legislation, both European and directly applicable, as well as Czech legislation is gradually removing these obstacles and making electronic legal proceedings accessible to ordinary users. However, there is still a long and thorny road ahead of us to ensure that electronic legal proceedings can be easily used by everyone while ensuring an acceptable level of security. According to the authors of this treatise, the only way is secure electronic identification together with tools that guarantee the immutability of the document's content (e.g. time stamps or other tools not necessarily at the direct disposal of the person acting), not a qualified electronic signature, although its advantages are from a professional and technical point of view obvious.

The applicable legislation distinguishes between individual addressees of electronic legal transactions and sets different requirements for the form of the electronic signature used. An electronic document that is equipped with even a simple electronic signature of the acting subject in connection with the identification data of the acting subject obtained through the selected means of electronic identification in accordance with the eIDAS regulation and the relevant adaptation national legislation, at a level of guarantee (trust) substantial or high , i.e. identification data obtained from basic state registers, together with a guarantee of the immutability of such a document, ensures electronic legal proceedings, including the unambiguous identification of the acting subject in accordance with applicable national legislation and directly applicable Union regulations. An electronic document signed in this way must be considered duly signed and as such, in accordance with Article 25, paragraph 1, or Article 46 of the eIDAS Regulation may not be denied legal effects and may not be rejected as evidence in judicial and administrative proceedings solely for the reason that it is in electronic form.

From the above, it can be summarized that the admissibility of an electronic document is strongly dependent on its unmistakable capture and, if possible, the unequivocal identification of the person acting, usually by attaching the electronic signature of that person. In private law relationships, the legal regulation imposes only minimal formal requirements on legal documents. It is up to the negotiating parties what requirements they exchange for the given legal action. From the point of view of electronic legal proceedings, the requirement of a recognized electronic signature, with regard to its spread in the population, appears to be rather obstructive, and the legislation is gradually withdrawing from such a requirement. This higher form of electronic legal proceedings is generally required for electronic proceedings against the public sector, but here too specific applications are deployed from the position of public administration bodies that enable selected electronic proceedings to be carried out through means of identity without the provision of a recognized electronic signature. In private law relationships, more emphasis is placed on the identification of the acting person, ideally through a qualified electronic identification system at least with a considerable degree of trust. The availability of these means and their practical simplicity of use with minimal costs will be a decisive factor. Today, the reliability of these methods of electronic identification far surpasses the paper form of legal proceedings, in which identification is largely dependent on the knowledge of the specific counterparty. The aforementioned conclusions can be newly applied to the vast majority of legal negotiations in labor relations.

Source: epravo.cz

Mgr. Vladimír Nováček, attorney

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[1] Regulation No. 910/2014 of 23 July 2014 on electronic identification and trust-building services for electronic transactions in the internal market and repealing Directive 1999/93/EC and related legislation

[2] Act No. 297/2016 Coll., on trust-creating services for electronic transactions (hereinafter referred to as the "Act")

[3] Act No. 250/2017 Coll., on electronic identification (hereinafter referred to as "ZEI")

[4] Act No. 12/2020 Coll. on the right to digital services (hereinafter referred to as "ZPDS")