Electronic contracts and signatures

Electronic contract availability

Are electronic contracts legally valid in your jurisdiction? If so, what rules and restrictions govern their formation (including any mandatory or prohibited provisions and contract formats)?

Yes, electronic contracts are legally valid under Polish law.

An electronic contract formally corresponds to a “documented legal form” as described by the Polish Civil Code. All movables and content can be bought online, as in Poland most contracts do not require any special legal form. However, land or other real estate cannot be bought online, nor can company shares be transferred, as such transactions require confirmation by a notary. 

An online transaction with a consumer must be documented in a durable medium (eg, a pdf receipt should be emailed to a consumer or attached to a parcel with sold goods).

Are there any limitations or restrictions on transactions that can be concluded through electronic contracts?

Land or other real estate, company shares, receivables or other rights resulting from a written instrument cannot be transferred through an electronic contract. Intellectual property (eg, patents, trademarks, utility designs, copyrights and exclusive licences) also cannot be transferred in this way, although non-exclusive licences can be granted electronically. Property rentals can be transacted online, but insurance against earlier termination in case of sale of a rented object cannot.

As in other EU countries, an online transaction with a consumer must be documented in a durable medium (eg, a pdf receipt should be emailed to a consumer or attached to a parcel with sold goods).

Data retention

Do any data retention requirements apply to electronic contracts?

There is no general requirement for the parties to keep data relating to electronic contracts. However, telecommunications operators must keep traffic data for 12 months and, since 2016, enforcement agencies are allowed to conclude agreements with internet operators whereby they can access user data for the preceding 18 months. 

According to the EU General Data Protection Regulation (GDPR), data controllers should not keep data longer than is necessary. In practice, retention periods are based on civil law or tax prescription periods. In July 2018 the general prescription period for civil law claims was lowered from 10 to six years (ending 31 December each year). Therefore, the general retention period should not exceed seven years (one year extra for ‘safety reasons’).

Under the Act on Providing Electronic Services, there are specific rules for allowed retention of personal data after a specific e-service has concluded, which is limited to scenarios involving claims, advertising, illegitimate use and other laws.

Remedies

Are any special remedies available for the breach of electronic contracts?

As in other EU countries, a consumer has the right to withdraw from an electronic contract within 14 days from delivery of goods or conclusion of a contract for services (except for delivery of content).

As usual, if a payment is made by credit card, a purchaser can also rely on chargeback. Chargeback is a return of funds initiated by the issuing bank on the card holder's behalf following the card holder’s complaint regarding a transaction paid by the credit card.

There are no other specific remedies relating to electronic contracts in Poland.

Electronic signatures

Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?

Yes, electronic signatures are legally valid in Poland.

A qualified electronic signature equal to a handwritten signature is a paid service currently offered by four Polish institutions. Polish qualified e-signature has a known privacy flaw as it discloses a holder’s ID number (PESEL) and PESEL contains ones date of birth and sex.

For official matters, instead of a qualified electronic signature a Public Trusted Profile (ePUAP) may be used to sign documents. A foreign person may obtain a ePUAP after obtaining a Polish identification number (PESEL).

Most Polish businesses must file monthly Unified Control Files (JPK). A JPK file must be signed electronically, but it is usually handled by accounting offices or accountants.

As a matter of precaution, since 25 May 2018 all Polish businesses must have a qualified electronic signature or a ePUAP. GDPR requires businesses to notify the supervisory authority about personal data breaches within 72 hours of discovering it. In Poland such notification can be made only electronically and requires electronic signature. As increasingly more public duties require e-signature, it is becoming more widespread.

Since September 2018 e-signatures from other EU countries will be recognised by the Polish state on account of the EU eIDAS Regulation (910/2014) on electronic identification and trust services for electronic transactions in the internal market.

Click here to view the full article.