Jarocki (Internal market - Electronic identification and trust services for electronic transactions - Electronic signatures - Judgment) [2024] EUECJ C-302/23 (17 October 2024)

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( Reference for a preliminary ruling - Internal market - Electronic identification and trust services for electronic transactions - Regulation (EU) No 910/2014 - Article 25 - Electronic signatures - Legal effect and evidential value in legal proceedings - National legislation allowing the lodging with the courts, by electronic means, of procedural documents signed electronically - Need for those courts to have an appropriate ICT system )

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy Katowice - Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland), made by decision of 28 April 2023, received at the Court on 10 May 2023, in the proceedings

composed of D. Gratsias, President of the Chamber, I. Jarukaitis (Rapporteur), President of the Fourth Chamber, and Z. Csehi, Judge,

- the Czech Government, by J. Očková, M. Smolek and J. Vláčil, acting as Agents,

- the French Government, by R. Bénard, B. Fodda and E. Timmermans, acting as Agents,

- the Italian Government, by G. Palmieri, acting as Agent, and by M. La Greca and L. Reali, avvocati dello Stato,

- the European Commission, by L. Armati, O. Gariazzo and U. Małecka, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 2(1) and (3) and Article 25(1) and (2) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ 2014 L 257, p. 73).

2 The request has been made in proceedings between Mr Marek Jarocki and C.J. concerning an application for attachment of an enforcement clause in order to effect compulsory enforcement against a building owned jointly by C.J. and his spouse.

3 Recitals 2, 12, 13, 18, 21, 22 and 49 of Regulation No 910/2014 are worded as follows:

‘(2) This Regulation seeks to enhance trust in electronic transactions in the internal market by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities, thereby increasing the effectiveness of public and private online services, electronic business and electronic commerce in the [European] Union.

(12) One of the objectives of this Regulation is to remove existing barriers to the cross-border use of electronic identification means used in the Member States to authenticate, for at least public services. This Regulation does not aim to intervene with regard to electronic identity management systems and related infrastructures established in Member States. The aim of this Regulation is to ensure that for access to cross-border online services offered by Member States, secure electronic identification and authentication is possible.

(13) Member States should remain free to use or to introduce means for the purposes of electronic identification for accessing online services. They should also be able to decide whether to involve the private sector in the provision of those means. Member States should not be obliged to notify their electronic identification schemes to the [European] Commission. The choice to notify the Commission of all, some or none of the electronic identification schemes used at national level to access at least public online services or specific services is up to Member States.

(18) This Regulation should provide for the liability of the notifying Member State, the party issuing the electronic identification means and the party operating the authentication procedure for failure to comply with the relevant obligations under this Regulation. However, this Regulation should be applied in accordance with national rules on liability. Therefore, it does not affect those national rules on, for example, definition of damages or relevant applicable procedural rules, including the burden of proof.

(21) … Neither should this Regulation cover aspects related to the conclusion and validity of contracts or other legal obligations where there are requirements as regards form laid down by national or Union law. In addition, it should not affect national form requirements pertaining to public registers, in particular commercial and land registers.

(22) In order to contribute to their general cross-border use, it should be possible to use trust services as evidence in legal proceedings in all Member States. It is for the national law to define the legal effect of trust services, except if otherwise provided in this Regulation.

(49) This Regulation should establish the principle that an electronic signature should not be denied legal effect on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic signature. However, it is for national law to define the legal effect of electronic signatures, except for the requirements provided for in this Regulation according to which a qualified electronic signature should have the equivalent legal effect of a handwritten signature.’

‘1. This Regulation applies to electronic identification schemes that have been notified by a Member State, and to trust service providers that are established in the Union.

3. This Regulation does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form.’

(10) “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;

(12) “qualified electronic signature” means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures;

6 Article 9 of Regulation No 910/2014, entitled ‘Notification’, provides in paragraph 1(a) thereof:

‘The notifying Member State shall notify to the Commission the following information and, without undue delay, any subsequent changes thereto:

(a) a description of the electronic identification scheme, including its assurance levels and the issuer or issuers of electronic identification means under the scheme’.

7 Article 25 of that regulation, entitled ‘Legal effects of electronic signatures’, reads as follows:

‘1. 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 that it does not meet the requirements for qualified electronic signatures.

2. A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.

8 Article 125(2¹) and (2^1a) of the ustawa - Kodeks postępowania cywilnego (Law establishing the Civil Code), of 17 November 1964 (Dz. U. No 43, item 296), in the version applicable to the dispute in the main proceedings (‘the Code of Civil Procedure’), provides:

‘2¹. Where a specific provision so envisages or an option has been exercised to lodge procedural documents by means of an ICT system, the procedural documents in that case shall be lodged only through that ICT system. The procedural documents not lodged through an ICT system shall not produce the legal effects which the Law attaches to the lodging of a document with the court, about which the court shall notify the person lodging the document.

2^1a. Opting to lodge procedural documents through an ICT system and the continued lodging of such documents through an ICT system shall be permissible if that is technically possible for the court.’

(6) the signature of the party concerned or his or her legal or authorised representative.’

‘A procedural document lodged through an ICT system shall bear a qualified electronic signature, a trusted signature or a personal signature.’

11 Article 3 of the ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne (Law on the computerisation of activities of entities performing public tasks), of 17 February 2005, in the version applicable to the dispute in the main proceedings (Dz. U. of 2023, item 57), provides, in points 13 and 14a thereof:

(13) “electronic platform of public administration services” shall mean an ICT system in which public institutions make services available through a single access point on the Internet;

(14a) “trusted signature” shall mean [an] electronic signature, the authenticity and integrity of which are ensured by means of the electronic seal of the minister competent for computerisation …’.

The dispute in the main proceedings and the question referred for a preliminary ruling

12 On 28 November 2022, the applicant in the main proceedings brought before the Sąd Rejonowy Katowice - Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland), which is the referring court, an application for attachment of an enforcement clause in order to effect compulsory enforcement against a building owned jointly by his debtor and the latter’s wife. That application, which was accompanied by an application for legal aid, was sent by email to the court’s email address. It was signed electronically with a trusted signature, within the meaning of Article 3(14a) of the Law on the computerisation of activities of entities performing public tasks.

13 The officer of the court entrusted with examining the application having requested the applicant in the main proceedings to remedy the formal defects in that application, inter alia by submitting an official form, signed by hand, and by completing that form with various items of information, the applicant, on 21 January 2023, sent to the same email address of the court a statement including the requested information, again signed using a trusted signature.

14 By order of 8 February 2023, the officer of the court returned the application for legal aid on account of the failure to remedy the formal deficiencies in it, including, in particular, the failure to sign the application by hand.

15 On 4 March 2023, the applicant in the main proceedings sent the referring court by electronic means an application for exclusion of the officer of the court from hearing the case and for the initiation of disciplinary proceedings against that officer, arguing that there were serious doubts as to that officer of the court’s impartiality, since, in breach of EU law, he was refusing to accept a document signed electronically.

16 The referring court states that most Polish courts do not have an ICT system enabling the lodging of procedural documents by electronic means and that they therefore refuse the production of documents signed electronically. Only documents signed by hand are thus accepted, at least in civil proceedings under ordinary law.

17 In the referring court’s view, the legal effect of an electronic signature is, in principle, determined by national law, apart from so as concerns qualified electronic signatures, in respect of which Regulation No 910/2014 provides that their effect is equivalent to that of a handwritten signature. Furthermore, it was not the EU legislature’s intention to require Member States to adopt specific solutions so far as concerns the use of electronic signatures in judicial proceedings.

18 That is why the referring court is of the opinion that, inasmuch as it does not have an ICT system enabling, in accordance with national legislation, procedural documents signed electronically to be lodged, it is not obliged to accept a document bearing an electronic signature sent by email to the court’s email address.

19 The referring court nevertheless raises the issue of whether account should be taken of the objective, set out in recital 2 of Regulation No 910/2014, of enhancing trust in electronic transactions in the internal market between citizens, businesses and public authorities. It states that Article 25(1) of Regulation No 910/2014 could be interpreted in the light of that objective to the effect that the obligation for the Member States to accept a procedural document signed electronically follows from the principle of non-discrimination. Such an interpretation would lead to uniformity as regards the arrangements for lodging procedural documents before the courts of the Member States.

20 The referring court raises the issue, in that regard, of whether the provisions of Regulation No 910/2014 on electronic signatures apply only to the Member States which have notified to the Commission an electronic identification scheme, in accordance with Article 9(1) of that regulation, which is not the case, it states, in respect of the Republic of Poland.

21 In those circumstances, the Sąd Rejonowy Katowice - Wschód w Katowicach (District Court, Katowice-East, Katowice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(1) and (3) of [Regulation No 910/2014], in conjunction with Article 25(1) and (2) thereof, and recitals 12, 13, 18, 21, 22 and 49 thereof, be interpreted as meaning that a court of a Member State is obliged to accept a procedural document lodged with that court and signed with an electronic signature, as referred to in Article 3(10) of the regulation, where the national law of the Member State does not provide for any possibility of lodging procedural documents with the court by means of an electronic signature other than through an ICT system?’

22 By its question, the referring court asks, in essence, whether Article 2(1) and (3) and Article 25(1) and (2) of Regulation No 910/2014 must be interpreted as precluding national legislation under which a procedural document cannot be lodged with a court by electronic means and signed electronically unless that court has an appropriate ICT system and the lodging is carried out by means of that system.

23 As a preliminary point, it must be stated, in the first place, that the referring court raises the issue of the applicability ratione materiae of Regulation No 910/2014 to the dispute in the main proceedings on the ground that that regulation applies only to electronic identification schemes which have been notified by the Member States to the Commission. The electronic identification means used by the applicant in the main proceedings for lodging his procedural documents electronically is not covered by an electronic identification scheme notified by the Republic of Poland, which indeed, according to the referring court, has not notified any such scheme.

24 In that regard, it must be observed that the Commission states that that Member State has notified an electronic identification scheme in accordance with Article 9 of Regulation No 910/2014.

25 In any event, even if no electronic identification scheme was notified by the Republic of Poland to the Commission, or if the electronic identification scheme notified was not that under which the applicant in the main proceedings was issued with the electronic identification means he used for authentication when sending the procedural documents to the referring court electronically, it must be observed that whether or not a scheme has been notified is irrelevant for the purposes of determining if the provisions of Regulation No 910/2014 on electronic signature are applicable in a situation such as that in the main proceedings.

26 As Article 2(1) of Regulation No 910/2014 stipulates, that regulation has a two-fold scope. It applies, first, to electronic identification schemes that have been notified by a Member State and, secondly, to all trust service providers that are established in the European Union.

27 Electronic identification for the purposes of cross-border authentication for online services is governed by Chapter II of that regulation, which includes Articles 6 to 12 thereof, whereas trust services are governed by Chapter III of that regulation, consisting of Articles 13 to 45 thereof.

28 The notification to the Commission of electronic identification schemes is provided for in Article 9 of Regulation No 910/2014. That notification, which remains optional, as stressed by recital 13 of that regulation, constitutes a pre-condition for the mutual recognition of electronic identification means, with a view to the cross-border use of such means.

29 On the other hand, the application of the provisions of Section 4 of Chapter III of that regulation, on electronic signatures, which include Article 25 of Regulation No 910/2014, the interpretation of which is sought by the referring court, is not conditional on such notification.

30 It follows therefrom that the fact that a Member State has not notified an electronic identification scheme, in accordance with Article 9 of Regulation No 910/2014, has no bearing on the applicability in that Member State of the provisions of that regulation on electronic signatures.

31 In the second place, it must be observed that it is apparent from the order for reference that the ‘trusted signature’ used by the applicant in the main proceedings is not a ‘qualified electronic signature’ satisfying the definition in Article 3(12) of Regulation No 910/2014, but a straightforward electronic signature, as defined in Article 3(10) of that regulation. It follows therefrom that Article 25(2) of that regulation, which relates to the legal effect of a qualified electronic signature, is not relevant for the purposes of answering the question referred.

32 It must be observed, having made those preliminary remarks, that under Article 25(1) of Regulation No 910/2014, an electronic signature must not be denied legal effect and admissibility as evidence in legal proceedings ‘solely on the grounds’ that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

33 The Court has already held that that provision does not prohibit national courts from declaring electronic signatures invalid, but establishes a general principle prohibiting those courts from denying electronic signatures legal effect and evidential value in legal proceedings solely on the grounds that those signatures are in electronic form or that they do not meet the requirements laid down by that regulation for an electronic signature to be considered a ‘qualified electronic signature’ (judgments of 20 October 2022, Ekofrukt, C-362/21, EU:C:2022:815, paragraph 35, and of 29 February 2024, V.B. Trade, C-466/22, EU:C:2024:185, paragraph 34).

34 The Court has also held that, although Regulation No 910/2014 is intended to ensure, as is apparent from Article 2(3) thereof, read in the light of recital 49 thereof, that an electronic signature is not denied legal effect solely on the ground that it is in electronic form, it does not impede the freedom of the Member States to lay down formal requirements (see, to that effect, judgment of 20 October 2022, Ekofrukt, C-362/21, EU:C:2022:815, paragraph 39).

35 It follows that procedural requirements such as those which determine, under national law, the arrangements for the lodging of procedural documents with the courts, are not affected by Regulation No 910/2014.

36 In the present case, it is apparent from the national legal framework provided by the referring court that the national legislation at issue in the main proceedings prohibits the lodging with a court, by electronic means, of a procedural document bearing an electronic signature not on the ground that only a handwritten signature could be considered a signature, within the meaning of Article 126(1)(6) of the Code of Civil Procedure, but on the ground that, pursuant to Article 125(2^1a) of that code, that lodging of procedural documents by electronic means before a court can be carried out only through an appropriate ICT system, which that court must have at its disposal.

37 It is furthermore apparent from that legislation that, where the court has such a system, the lodging through that system of procedural documents signed electronically produces the same legal effects as those which are attributed normally under the Polish legislation to the lodging of a procedural document with a court.

38 In a situation such as that in the case in the main proceedings, where a procedural document is lodged with the court by electronic means even though that court does not have an appropriate ICT system through which the lodging of documents must be carried out, that document is therefore not refused ‘solely on the grounds’ that the signature the document bears is in electronic form or that that signature does not satisfy the requirements of a qualified electronic signature.

39 Having regard to all the foregoing considerations, the answer to the question referred is that Article 2(1) and (3) and Article 25(1) of Regulation No 910/2014 must be interpreted as not precluding national legislation under which a procedural document cannot be lodged with a court by electronic means and signed electronically unless that court has an appropriate ICT system and the lodging is carried out by means of that system.

40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 2(1) and (3) and Article 25(1) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC,

must be interpreted as not precluding national legislation under which a procedural document cannot be lodged with a court by electronic means and signed electronically unless that court has an appropriate ICT system and the lodging is carried out by means of that system.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Jarocki (Internal market - Electronic identification and trust services for electronic transactions - Electronic signatures - Judgment) [2024] EUECJ C-302/23 (17 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C30223.html Cite as: [2024] EUECJ C-302/23, ECLI:EU:C:2024:905, EU:C:2024:905

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