Dr Maciej Kiełbowski

Electronic signature doesn’t work in administrative court

Poland’s Supreme Administrative Court has held that under current law it is impermissible to file papers with the administrative courts electronically using a secure electronic signature.

Resolution of seven-judge panel of Supreme Administrative Court of Poland of 12 May 2014 (Case No. I OPS 10/13)

The exchange of correspondence through electronic means is increasingly prevalent in various fields of economic life, and has also begun to affect various types of administrative and judicial proceedings. This applies as well to cases before the administrative courts, which resolve numerous matters vital to businesses and involving their operations and contacts with public administrative authorities.

Grounds for resolution

The resolution in question was adopted by the Supreme Administrative Court in response to a request for a ruling by the president of the court on the question whether filing of papers with the administrative court is effective when the document is signed using a secure electronic signature under Art. 3(2) of the Electronic Signature Act of 18 September 2001, including when the document is filed via a public administrative authority using electronic means of communication under Art. 2(5) of the Electronic Services Act of 18 July 2002. The president of the court raised the issue because two fundamentally different views on this issue had developed in the case law of Poland’s administrative courts.

Conflicting positions

Under one view, if pleadings in administrative court proceedings were filed electronically and signed with a secure electronic signature, they were nonetheless regarded as effective only when subsequently signed by hand by the party in court. As stated in the justification for the recent resolution, “A signature is a mark made by hand by a specific person, bearing individual and repeatable characteristics distinguishing it from others and enabling identification of the signatory and an evaluation of the authenticity of the signature, which means that the signature must be made by hand.” The court will treat the lack of a signature by hand as a formal defect and summon the party to cure the defect under Art. 49 §1 of the Administrative Court Procedure Law within 7 days of service of the summons.

The other view admits the possibility of effective filing of pleadings in proceedings before an administrative court by electronic means and signed with a secure electronic signature. This is also a requirement of EU law, as “EU law requires each of the Member States to achieve equivalence between electronic signatures and handwritten signatures, including in dealings between courts and citizens.” Under this view, the act introducing the possibility of signing documents using an electronic signature should be treated as the rule, and exceptions from the rule must also be provided in regulations of statutory rank. In the deliberations before the Supreme Administrative Court, this position was supported by the Prosecutor General’s Office.

Electronic signature insufficient for now

The resolution adopted by the Supreme Administrative Court supports the view that under current law, pleadings in administrative court proceedings cannot be filed effectively by electronic means, using a secure electronic signature.

The court pointed out that the EU’s Electronic Signatures Directive (1999/93/EC) allows the member states to determine the areas of law in which electronic signatures are to be used. The directive therefore does not apply to judicial procedures if Polish law has not introduced express regulations in this respect. The court also cited the view recently taken by the Supreme Court of Poland (order of 19 June 2013, Case No. I CZ 59/13, Lex No. 1360186) that the purpose of the Electronic Signatures Directive was to equalise the effectiveness of electronic and handwritten signatures in civil-law dealings, and not to give EU citizens the right to file pleadings effectively with the courts of any member state using an electronic signature—a matter of public law, not civil law.

As the Administrative Court Procedure Law does not contain any provisions concerning the use of electronic signatures, the court concluded that the requirement to sign pleadings under Art. 46 §1(4) refers to a handwritten signature by the party or attorney.

Concerning the possibility of signing and filing pleadings in electronic form, the court also raised the constitutional context of the issue: “Procedural acts should address judicial procedure as a whole in order to enable the parties to pursue their rights. In a democracy under the rule of law, judicial procedure regulations must meet the requirement of specificity. This means that the statutory regulations must comply with criteria for minimal intelligibility and linguistic precision, and assure that decisions of state authorities are binding to an adequate degree.”

The court interpreted the absence of an affirmative regulation in this respect as a negative regulation, thus prohibiting signing of court papers with a secure electronic signature and electronic filing of court papers. In the court’s view, “An electronic signature, including a secure electronic signature, is always an integral part of an electronic document. The possibility of effectively using such a signature in pleadings prepared in electronic form (constituting a set of electronic data) therefore depends on the legal ability to file such papers with the court in that form, which must be expressly provided for in a procedural act.”

It should be noted that the resolution in this case was issued the day before an amendment to the Administrative Procedure Code entered into force significantly expanding the possibility of using electronic communications in administrative proceedings (including powers of attorney, as we discussed in another article on the portal). However, as pointed out by the Supreme Administrative Court in the resolution of 12 May 2014, this amendment will not apply to administrative courts until 11 February 2017.

Significance of resolution

The resolution in question addressed an abstract legal issue and was not adopted in a specific case. However, Art. 269 §1 of the Administrative Court Procedure Law provides that until such time as the position taken by the Supreme Administrative Court is modified, other administrative courts are bound by the resolution. (For more on this issue see “The Role of the Supreme Administrative Court in Unifying the Case Law of the Administrative Courts.”)

So pleadings may not be filed with the administrative courts in Poland electronically for now, at least until the amendments to the Administrative Court Procedure Law come into effect in 2017. This solution will generate a certain dichotomy, as parties accustomed to extensive use of electronic communications in administrative proceedings (under the extensive amendment of the Administrative Procedure Code in this respect) will have to forget about using such methods when the matter reaches the administrative court.

Of course it requires some time whenever new procedural solutions are adopted, such as in this case the time required to build the relevant IT infrastructure and to introduce rules for processing of pleadings filed in electronic form. Nonetheless, the three-year grace period before these changes go into effect seems long. Before that time, it is conceivable that the position adopted by the Supreme Administrative Court in the resolution of 12 May 2014 could yet be modified.

Maciej Kiełbowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners