Contributed by Ulcar & Partnerji.
1. Legal framework for writing and electronic contracts
a. What are the requirements in your jurisdiction to consider a document to be in writing? Are there any formal/technical requirements?
In general, a document is considered to be in writing if it is drafted in a physical form (either typed or handwritten) if not stipulated otherwise.
Such definition is included in Article 76 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette of RS, No. 176/21 et seq.), Article 63 of the General Administrative Procedure Act (Zakon o splosnem upravnem postopku, Official Gazette of RS, No. 24/06 et seq.) and in Article 105b of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette of RS, No. 73/07 et seq.), pursuant to all of which a procedural submission is considered to be in writing if it is handwritten or typed and signed by either the author or the applicant.
Additionally, an electronic document is also considered to be in writing in the aforementioned procedures if it is signed with a secure electronic signature with a qualified digital certificate issued by the trusted provider (qualified signature).
b. Are electronic documents [e.g., an email] per se considered to be in writing under your law?
Pursuant to Article 13 paragraph 1 of the Electronic Commerce and Electronic Signature Act (Zakon o elektronskem poslovanju in elektronskem podpisu, Official Gazette of RS, No. 57/00 et seq. – Electronic Signature Act) electronic documents are considered to be in writing if the information contained therein is accessible so as to be usable for subsequent reference. This means that the document can be made available to the parties concerned (e.g., downloadable, sent, etc.) and that the parties are able to create additional copies of the document. Similarly, pursuant to Article 16 of the Civil Procedure Act electronic documents have the same probative value as written documents in physical form if they are appropriate for processing (i.e., made available by technical means that the court itself employs).
Furthermore, according to Article 4 of the Electronic Signature Act, as well as according to Article 46 of Regulation (EU) no. 910/2014 of the European Parliament and of the Council (eIDAS Regulation), an electronic document shall not be denied legal effect and admissibility as evidence in legal procedures solely on the grounds of being in electronic form.
According to case law (decision of Higher Court in Celje, Ref. No. Cp 294/2019) a contract concluded in writing and thus requiring a termination to be in the same form may be validly terminated with a written statement sent via an email. All of the above showcases a rather broad interpretation of a written form for legal documents.
However, there are certain exceptions. Rules from Article 13 Paragraph 1 of the Electronic Signature Act do not apply for documents, attesting to individual legal transactions, subject to special formal requirements, such as land registry permits that transfer the ownership right over real estate or that establish other property rights, and testamentary transactions. An electronic form of land registry permission represents an equivalent to the written form and has the same legal effect if the signature of the person who issued it is notarized.
c. What probative power paper and/or electronic documents have that are to be considered in writing?
The probative power, i.e., the degree of value as evidence, of paper documents and electronic documents that are to be considered in writing depends on the nature of the contract or legal transaction that certain documents attest to.
While a written document is sufficient for the majority of documents, as already described above, there are certain dispositions that are subject to stricter formal requirements. While for the majority of contracts written form is merely of probative value and therefore less formal (forma ad probationem), there are others, for which written or special form is required in order for the contract to be valid (forma ad valorem). In certain cases, an ordinary written form is not sufficient, and the contracts have to be either notarized or concluded in a form of a notary deed, to be valid (for example, the sale of real estate needs to be notarized, share purchase agreements need to be concluded in the form of a notary deed, etc.). Testamentary dispositions are also subject to special requirements and are considered valid, if they are drafted in writing and signed in front of witnesses, before a court or a notary public, or if they are handwritten and signed by an intestate. Technically it does not matter where the testament is written, the only requirement is that it is in a physical (not electronic) form and signed by the intestate. In the case of a handwritten testament, the copy of such a document is not considered to be in writing and valid, unless the purpose of a copy is to restore the original document.
d. What are the general rules and requirements to conclude a contract electronically?
As a rule, contracts can be concluded by electronic means, whereby it is important that (i) the signatories can be identified (the identification or authentication of signatories is executed via electronic signatures, further explained below) and that (ii) the integrity of the contract is preserved during its creation and conservation.
Additional rules for conducting business and concluding contracts electronically depend on the nature of an individual contractual relationship.
For example, in the case of consumer contracts, the rules of Article 7 of the Electronic Commerce Market Act (Official Gazette of RS, No. 96/09 et seq.– ECMA) apply. A general requirement, stipulated in the aforementioned provision is, that contractual provisions and general terms of a contract are provided in a form, which allows for the saving and reproduction of contractual terms.
In the case of contracts that do not require a written form, the contract may very well be concluded via email or other forms of electronic communication. However, the forma ad valorem contracts ought to be concluded in a more formal manner, in accordance with the prescribed requirements.
e. Are there any sector-specific rules that define further requirements to conclude contracts electronically [e.g., contracting via an authenticated electronic channel, contracting via video chat, etc.]?
For most contracts, legislation has adopted a rather hands-off approach, when it comes to contract conclusion regulations. Unless specifically restricted, further authentication requirements are left for the parties to decide.
However, there are certain sector-specific instances, where the regulations provide additional requirements for the conclusion of electronic contracts, for example:
- Conclusion of car insurance – in accordance with Article 5 of the Compulsory Motor Third-Party Liability Insurance Act (Official Gazette of RS, No. 93/07 et seq.) the insurance company is required to conduct online business and enable insurance contract conclusion via the internet; although the government has the option to stipulate additional requirements for the authentication of such contracts, no such additional requirements have been issued yet and in practice, the authentication process is usually performed via a combination of e-mail and SMS (the draft of the contract is uploaded to a virtual folder by an insurance company and a link to the folder is sent to the customer, who can access the folder only by typing in a code, received previously via an SMS.
- Contracts in the form of notarial deeds – Article 31 of the Notary Act (Zakon o notariatu, Official Gazette of RS, No. 2/07 et seq.) foresees the possibility of a notarial document in an electronic form, which can be composed via a secure video call with the notary public; prior to the drafting of a notarial document via a video call, the notary public verifies the identity of participants in accordance with Article 39 of the Notary Act; notarial documents in electronic form have to be secured with a qualified electronic signature, qualified electronic seal and time stamp in such a way that the integrity of the data in the document is ensured and the time of the creation of the document is evident; additionally, the form of a notarial deed has to meet the conditions for secure and long-term storage of data in digital form, as determined by the regulations on the protection of documentary and archival material and archives. In accordance with Article 38 of the Notary Act, a notarial document in electronic form can be signed with a qualified digital signature of participants via a secure video call with a notary or in the physical presence of the notary. The notary verifies the validity of qualified electronic signatures and signs the document with their qualified electronic signature, qualified electronic seal, and qualified electronic stamp. The method of verification of the signatures has to be specified in the notarial document. In accordance with applicable provisions of the Notary Act, notarial documents in an electronic form have the same legal effect as notarial documents in a physical form.
2. Digital signatures
a. Are there any laws regulating the use of digital signatures in your jurisdiction?
In the Slovenian jurisdiction, digital signatures are regulated by the following legislation:
- Electronic Identification and Trust Services Act (Zakon o elektronski identifikaciji in storitvah zaupanja, Official Gazette of RS, No. 121/21 et seq. – Trust Services Act), which governs personal electronic identity, means of electronic identification, electronic identification scheme, and trust services, which include electronic signatures;
- Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation);
- Electronic Business and Electronic Signature Act (Zakon o elektronskem poslovanju in elektronskem podpisu, Official Gazette of RS, No. 98/04 et seq.), which governed the electronic signatures, but most of its provisions on electronic signatures were annulled with the adoption of the Trust Services Act;
- Decree on the Determination of Means of Electronic Identification and the Use of a Central Service for Online Registration and Electronic Signature (Uredba o dolocitvi sredstev elektronske identifikacije in uporabi centralne storitve za spletno prijavo in elektronski podpis, Official Gazzete of RS, No. 29/22).
The use of digital signatures is further regulated by various field-specific regulations, as the type of digital signature required for a particular legal act depends on the field of the legal act and thus, laws regulating relevant fields.
b. Is there any difference between the different types of digital signatures in your jurisdiction?
Electronic Signature Act which was adopted before the eIDAS Regulation entered into force, differentiated between:
- an “electronic signature” – a set of data in electronic form, which is contained, added, or logically connected with other data, with the purpose to verify the authenticity of this data and identify the signatory and
- a “secure electronic signature” – an electronic signature which is (i) exclusively related to the signatory, (ii) the signatory can be reliably identified from it, and (iii) is created with means for secure electronic signing, which are exclusively under the signer’s control.
As mentioned above, the Trust Services Act annulled some of the Electronic Signature Act provisions, including the provisions on the differentiation between an electronic signature and a secure electronic signature.
Please note that the Trust Services Act does not define electronic signatures or different types of electronic signatures anymore, therefore the definitions of electronic signatures, as defined by the eIDAS Regulation now apply. In accordance with Article 3 of the eIDAS Regulation, there are three different types of digital signatures, namely:
- An “electronic signature” – 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.
- An “advanced electronic signature” – an electronic signature that is uniquely linked to the signatory, capable of identifying the signatory, created using electronic signature creation data that the signatory can, with a high level of confidence, use under his control and is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
- A “qualified electronic signature” – an advanced electronic signature that is created by a qualified electronic signature creation device, and is based on a qualified certificate for electronic signatures.
However, please note that even though Electronic Signature Act provisions on the differentiation between an electronic signature and a secure electronic signature are no longer valid, the term secure electronic signature is still heavily present in the Slovenian jurisdiction, since various laws, adopted prior to eIDAS Regulation’s entry into force (and some even after it), still refer to the term “secure digital signature,” for instance Article 63 of the General Administrative Procedure Act, Article 58 of the Public Procurement in the Defence and Security Sector Act (“Zakon o javnem narocanju na podrocju obrambe in varnosti Official Gazzete of RS, No. 90/12 et seq.), Article 13 of the Legal Protection in Public Procurement Procedures Act (Zakon o pravnem varstvu v postopkih javnega narocanja, Official Gazzete of RS, No. 43/11, et seq.), etc.
The Trust Services Act addresses the terminological discrepancy in Article 62, Paragraph 2, in which it stipulates that if the regulation requires the use of a secure electronic signature based on a qualified digital certificate, it is considered that a qualified electronic signature is required.
c. What probative power each type of digital signature has in your country?
The qualified electronic signature is considered an equivalent to a handwritten signature and is the most widely used electronic signature in Slovenia, considered the most reliable, while its authenticity is presumed. There are various recognized providers of qualified digital certificates in Slovenia, most notably SIGOV-CA, SIGEN-CA, and POSTA®CA. As for ordinary and advanced electronic signatures, the burden of proof lies with the person claiming the authenticity of such signatures.
The types of digital signatures, necessary for particular legal acts, depending on the field of such legal acts, and are subject to various field regulations, for example:
- Pursuant to Article 84, Paragraph 4 of the Value Added Tax Act (Zakon o davku na dodano vrednost, Official Gazzete of RS, No. 13/11 et seq.), an advanced signature is foreseen as a possible form to ensure the authenticity of the origin and the integrity of an electronic invoice.
- Pursuant to Article 37, Paragraph 11 of the Public Procurement Act (Zakon o javnem narocanju, Official Gazzete of RS, No. 91/15 et seq.) the use of an advanced electronic signature, based on a qualified certificate, is foreseen in connection with electronic communication and tender submission.
- Pursuant to Article 105, Paragraph 3 of the Civil Procedure Act, the applicant’s signature is considered to be authentic if it is handwritten or in a form of an electronic signature, equivalent to a handwritten signature.
- Pursuant to Article 76, Paragraph 2 of the Criminal Procedure Act, in case of submission of an application in electronic form, an electronic signature equivalent to a handwritten counterpart is required.
d. Are there any specific groups of people that are required to have digital signatures [e.g., attorneys, notaries, government officials, etc.]?
Yes, pursuant to Article 15 of the Notary Act, notaries are obliged to obtain (i) a qualified certificate for an electronic signature and (ii) a qualified certificate for an electronic seal through the Chamber of Notaries of Slovenia.
On the other hand, attorneys in Slovenia are not obliged to obtain a qualified digital signature per se, however, they still need to do so, if they wish to submit certain applications and/or requests in an electronic form (for example, in insolvency and execution proceedings). In insolvency proceedings attorneys are obliged to file all filings in an electronic form, signed with a secure electronic signature, based on a qualified certificate, otherwise, the filings are rejected by the court. Consequently, the majority of attorneys are still required to obtain a qualified digital signature.
In addition, digital signatures are also required for:
- Insolvency administrators or liquidators in insolvency proceedings, for the purpose of submitting reports, lists of tested claims, and other written documents.
- Any applicants submitting proposals for registration of title to land, as those may only be submitted electronically.
- Judicial and Administrative Authorities in Slovenia (pursuant to various legal acts).
e. Are non-personalized digital stamps recognized in your country with probative power [e.g., digital stamps used by companies, government, or administrative bodies]?
The probative power of digital seals and digital time stamps is recognized in Slovenia. Similar to the terminological issues of electronic signatures explained above (Section 2.b.), national legislation in some cases still refers to the Electronic Signature Act terminology when regulating electronic seals and electronic time stamps (See Rules on electronic operations in civil procedures and in criminal procedure, Article 3 for example).
The Electronic Signature Act defined a “time stamp” as an electronically signed certificate of a certifier that confirms the content of the data to which it refers at the particular time and a “secure time stamp” as an electronically signed certificate of a certifier that meets certain conditions (mutatis mutandis conditions for secure electronic signature). As aforementioned, those provisions are no longer valid and provisions of the eIDAS Regulation apply.
According to the eIDAS Regulation, an “electronic time stamp” is electronic data binding other electronic data to a particular time to establish evidence that the latter data existed at that time. As follows from Article 42 of the eIDAS Regulation, a “qualified electronic time stamp” is a timestamp that binds the date and time to data in such a manner as to reasonably preclude the possibility of the data being changed undetectably; is based on an accurate time source linked to coordinated universal time; and is signed using an advanced electronic signature or sealed with an advanced electronic seal of the qualified service provider or some equivalent method. The eIDAS Regulation further regulates an “electronic seal,” an “advanced electronic seal” and a “qualified electronic seal.” A qualified electronic seal is defined as an advanced electronic seal, which is created by a qualified electronic seal creation device, and based on a qualified certificate for electronic seal. In accordance with Article 35, Paragraph 2 of the eIDAS Regulation, such a seal enjoys the presumption of integrity of the data and correctness of the origin of that data to which the qualified electronic seal is linked.
In Slovenia, the use of electronic seals and electronic time stamps is required for notaries. Notary documents in an electronic form have to be secured with a qualified electronic signature as well as with a qualified electronic seal and a qualified electronic time stamp of the notary public. A document in an electronic form, without a qualified electronic signature of the notary public, their qualified electronic seal, and qualified timestamp, does not have the legal validity of a public document (Article 38 of the Notary act).
Additionally, other regulations also contain provisions in relation to time stamps and electronic seals, namely:
- According to Article 112 of the Civil Procedure Act, in case of submitting an application in electronic form with the assistance of an electronic provider, which signs the application with an electronic time stamp, the time of the electronic time stamp is considered as the time of receipt.
- Pursuant to Article 14 of the Rules on the envelope, the proof of service, and other notifications regarding personal service in administrative procedures (Pravilnik o ovojnici, vrocilnici in drugih sporocilih za vrocanje v upravnem postopku, Official Gazzete of RS, No. 89/22), the electronic proof of service has to be confirmed with the electronic seal of the service information system and equipped with a qualified time stamp.
- In accordance with Article 65.a. of the Decree on Administrative Operations, a certificate of compliance of the electronic copy with the document in physical form can be automatically confirmed by the information system, with a qualified electronic seal of the authority. Similarly, a qualified electronic seal of an administrative body is required for the confirmation of excerpts or other documents in an electronic form, which is automatically produced by the information system.
- Pursuant to Article 11 of the Rules on criminal records (Pravilnik o kazenskih evidencah, Official Gazzete of RS, No. 3/18), legal entities have to use digital seals when requesting to obtain data from criminal records in an electronic form. In such a case, a request signed with an electronic seal is considered a hand-signed request.
3. Digital archiving
a. Are there any laws regulating digital archives and digital archiving in your jurisdiction?
In Slovenia, digital archives and digital archiving are predominantly regulated by the following legislation:
- Protection of Documents and Archives and Archival Institutions Act (Official Gazzete of RS, No. 30/06 et seq. – Archival Institutions Act);
- Decree on the Protection of Documentary and Archive Material (Uredba o varstvu dokumentarnega in arhivskega gradiva, Official Gazzete of RS, No. 42/17);
- Rules on Uniform Technological Requirements for Capture and Storage of Materials in Digital Form (Pravilnik o enotnih tehnoloskih zahtevah za zajem in hrambo gradiva v digitalni obliki, Official Gazzete of RS, No. 118/20 – Uniform Technological Requirements).
The field-specific regulations, such as the Companies Act (Zakon o gospodarskih druzbah, Official Gazzete of RS, No. 65/09 et seq.), Tax Procedure Act (Zakon o davcnem postopku, Official Gazzete of RS, No. 13/11 et seq.), Value Added Tax Act (Zakon o davku na dodano vrednost, Official Gazzete of RS, No. 13/11 et seq.), Rules on the implementation of the Value Added Tax Act (Pravilnik o izvajanju Zakona o davku na dodano vrednost, Official Gazzete of RS, No. 141/06 et seq.), Accounting Act (Zakon o racunovodstvu, Official Gazzete of RS, No. 23/99 et seq.), Slovenian Accounting Standards (Slovenski racunovodski standardi (2006) Official Gazzete of RS, No. 95/15 et seq.), Personal Data Protection Act (Zakon o varstvu osebnih podatkov, Official Gazzete of RS, No. 94/07 et seq.), Decree on Administrative Operations (Uredba o upravnem poslovanju, Official Gazzete of RS, No. 9/18 et seq.), Rules determining the retention period for documents of public administration authorities (Pravilnik o dolocanju rokov hrambe dokumentarnega gradiva v javni upravi, Official Gazzete of RS, No. 49/19), etc. also contain some specific provisions on archiving of field-specific documents.
b. What are the main legal and technical requirements to digitally archive documents?
Archiving and keeping of the business documentation is a legal obligation of every taxable (legal or natural) person that is conducting any economic activity regardless of the profitability or revenue generation ability of said activity.
The Archival Institutions Act differentiates between two main groups of documents that are subject to archiving; i) electronic and ii) non-electronic or physical (paper) documents. Electronic documents are further divided into digital and analog documents. The legislation allows for the digital archiving of all (originally digital and non-digital) documents to avoid the keeping of multiple different archives and the associated additional unnecessary costs.
Analog and physical documents that are to be digitally archived, have to be converted to a digital form (i.e., digitalized) and digitally archived by an organization or an individual, that has obtained permission for digital archiving, issued by the Archives of the Republic of Slovenia for the digital archive keeping. For more information regarding digital archiving permissions please refer to Section 3.d.
The documents have to be selected, reviewed, and compiled in accordance with internal rules for the digitalization and digital archiving of the organization that is carrying out the digitalization process. On top of that, prior to digital conversion, the original documents in physical form have to be stacked, cleaned, restored (if necessary), and classified. Afterward, the documents are converted and digitalized in line with the minimum technical requirements and specifications listed in Article 38, Points 5 and 6 of the Uniform Technological Requirements that ensure a minimum quality threshold for the converted documents.
After the digitalization process, the documents have to be automatically or manually checked for correctness and, if need be, corrected to eliminate potential errors or deviations.
Digitalized documents are scheduled and stored on an appropriate storage medium that ensures reliable capture and safekeeping of digital form for the duration of the archiving period. The Archiving Institutions Act differentiates between short-term and long-term archiving. Short-term archiving is archiving for a period shorter than five years, whereas long-term archiving is archiving for a period longer than five years. The act itself does not stipulate which documents have to be stored for a certain period of time as this is subject to field-specific regulations.
In general, the documents have to be archived for a period equal to the limitation period of potential obligations arising from the archived documents. The vast majority of financial documents have to be archived for a long-term period. Invoices and payment confirmation receipts have to be archived for a period of 10 years, starting from the end of the issuing year. Book-keeping documents, general ledgers, and other books of account have to be archived for at least 10 years starting from the day of the taxable obligation while contracts and receipts for the sales and purchase of real estate and inventory records have to be archived for at least 20 years. Some documents such as business books and annual reports, original annual financial records and statements, payrolls, and data on employees have to be archived permanently.
Archiving digitally-signed documents
Additionally, for the electronic documents that have been signed using an electronic signature the supplementing data and signature verification tools have to be kept as well, for the entire archiving period of the document in question.
c. Is there any difference in your country’s regulations between the digital archiving of paper and electronic documents?
Although the Archival Institutions Act differentiates between documents in digital, analog, and physical form, there are no major differences when it comes to digital archiving itself. As already described in more detail in Section 3.b., if analog and physical documents are converted and digitalized in accordance with the Archival Institutions Act, they are treated and handled in the same manner as digital documents.
Moreover, according to Article 13 of the aforementioned act, digitalized documents are a complete substitute for the original non-digital documents which may be disposed of and destroyed after being digitalized, under the condition that the digitalized or converted form of a document ensures equal probative value as original documents.
d. Is any third party required to participate in the process of digital archiving in your country [e.g., a trusted service provider, government / administrative bodies, etc.]?
A person who wants to digitally archive documents can either digitally archive documents themself or entrust a third party (trusted service provider) for said services. In either case, everyone (a person or a trusted service provider) who wants to conduct digital archiving has to adopt internal rules on the capture and digitalization of documents and apply for confirmation of said rules at the Archives of the Republic of Slovenia, which is a competent body for issuing digital archiving permissions.
e. Are there any sector-specific requirements and rules for digital archiving [e.g., archiving both the software and the related data to retrieve information in the financial sector]?
In accordance with Regulation (EU) 2015/2365 of the European Parliament and of the Council on transparency of securities financing transactions and of reuse, the parties, including the banks and financial institutions, are obliged to keep records regarding the conclusion, changes, and completion of all transactions for at least five years.
Additionally, in accordance with Article 28 of the Trust Services Act, notarial documents in an electronic form have to be archived together with the information for confirmation of the validity of an electronic signature, electronic seal, or electronic time stamp, as well as the tool for the verification of trust services.