This article provides a general legal overview of the applicable laws and use cases pertaining to electronic signatures in Croatia.
In the Republic of Croatia, electronic signatures are regulated by the Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (“eIDAS Regulation”), together with the Act on Implementation of the eIDAS Regulation and, partly, by the Electronic Document Act (Croatian Zakon o elektroničkoj ispravi; “EDA”).
The eIDAS Regulation, which defines three types of electronic signatures (“simple” electronic signature, advanced electronic signature and qualified electronic signature), provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a qualified electronic signature, which is explicitly given the same legal effect as a handwritten signature.
In terms of evidentiary value, in case of a “simple” electronic signature and an advanced electronic signature, a burden of proof for proving the authenticity of the electronic signature lies with a person claiming its authenticity. In case of a qualified electronic signature, its authenticity is presumed.
When are electronic signatures allowed?
EDA specifically confirms that an electronic form of a document shall be deemed equivalent to its written form, provided that the use and circulation of such document is in accordance with the provisions of EDA.
Use cases where electronic signatures are typically allowed:
- commercial agreements and documents, including NDAs, LOIs, purchase orders, order confirmations, invoices, sales agreements, distribution agreements, service agreements, loan agreements, lease agreements;
- consumer agreements, including agreements for purchase of goods and services, consumer loan agreements, lease agreements;
- intangible property agreements, including license agreements; and
- HR documents, including employment contracts, NDAs, and notices of termination.
When are electronic signatures not appropriate?
EDA explicitly excludes the electronic form of a document with regard to all documents which require signatures to be certified before a notary public (e.g. registration of the agreement on the purchase of real estate before the land registry) or which have to be in the form of a notarial deed (Croatian solemniziran; e.g. share pledge agreements, share purchase agreements, etc.).
Can blockchain technology be used for electronic signatures?
Yes, provided that blockchain technology could satisfy the requirements set out in the eIDAS Regulation for electronic signatures.
At first glance, it seems that blockchain technology could easily satisfy the requirements for a “simple” electronic signature. Even a scanned signature which is attached to a document falls within the definition of a “simple” electronic signature under the eIDAS Regulation.
As for the advanced and qualified electronic signature, whether blockchain technology satisfies the requirements set out in the eIDAS Regulation needs to be assessed on a case-by-case basis. In order for an electronic signature to be recognized as an advanced, it must be (i) uniquely linked to the signatory, (ii) capable of identifying the signatory, (iii) created using electronic signature creation data the signatory can, with a high level of confidence, use under their sole control, and (iv) linked to the data signed therewith in such a way that any subsequent change in data is detectable. There are blockchain frameworks which would not satisfy the above-mentioned criteria by their very nature. For example, certain frameworks employ pseudo-anonymity, so it could be argued these frameworks are not capable of identifying the signatory.
The bar is set even higher for qualified electronic signatures, as these need to satisfy the requirements for advanced electronic signatures and have the signature created by a qualified electronic signature creation device. Whether this is feasible will also largely depend on the individual blockchain framework but does not seem impossible (at least not from a legal perspective).