The Supreme Administrative Court in its order of 12 May 2014 case file I OPS 10/13 held that the current legal status of administrative court proceedings, as defined in Article 46 § 1 pt. 4 of the Polish Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments, does not allow for filing to a court a letter that is only bearing an electronic signature of a party. Such letters must bear handwritten signature. This includes a situation of filing documents through public administration body, by means of electronic communication.
Archive for: Polish Act on Electronic Signature
E-signature, case I OPS 10/13
March 27th, 2015, Tomasz RychlickiE-access to public information, case II SAB/Lu 10/12
June 4th, 2012, Tomasz RychlickiThe Association of Leaders of Local Civic Groups (SLLGO) requested the Mayor of Opole Lubelskie town to disclose information regarding the fund from the years 2009-2011. The request was sent via e-mail. The Mayor ordered the SLLGO to supplement formal defects of the request and claimed that this form of an electronic document must be signed by the certified electronic signature as referred to in the Polish Act of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in Journal of Laws (Dziennik Ustaw) No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw), No 130, item 1450, with subsequent amendments. SLLGO refused to comply and argued that the provisions of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, allows for requesting the disclosure, even verbally, without any formality. The Mayor decided to leave the request without examination. The decision was based on the provisions of Article 64 § 2 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.
Article 64.
§ 1. The application will not be examined if the applicant’s address is not included in the application and it cannot be identified from the data available.
§ 2. If the application does not fulfil the requirements of law, the applicant shall be summoned to correct the defects within 7 days, with a notice advising that failure to comply will result in the application not being examined.
The Voivodeship Administrative Court in Lublin in its judgment of 20 March 2012 case file II SAB/Lu 10/12 ruled that the Mayor remained inactive and unjustifiably applied the provisions of the APC, therefore, the Court obliged the Mayor to examine the request. The authority that is obliged to disclose public information is not entitled to demand that a request submitted in electronic form has to be signed by any electronic signature. The Court reminded that the intention of the legislature was to unformalize the proceedings for the disclosure of public information, in order to ensure and fulfill the constitutional principle of openness of public life. The API indicates that a request for such information may take any form, and even the person requesting has not to be fully identified.
See also “Polish case law on e-access to public information” and “E-signatures in Poland“.
E-access to public information, case II SAB/Wa 86/07
February 20th, 2010, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment of 10 December 2007 case file II SAB/Wa 86/07 held that the request filed in the electronic form (e-mail), that was not signed with the qualified electronic signature, is a legally sufficient request for disclosure of public information. Furthermore, the request for disclosure of public information does not initiate the administrative proceedings and it is not intended to finalize the proceedings with the refusal. It is logical and obvious that applicant’s intention is to obtain information and not to receive a negative decision. The request for public information can take any form, unless it is sufficiently clear what is requested.
See also “Polish case law on e-access to public information” and “E-signatures in Poland“.
E-signatures in Poland
January 29th, 2010, Tomasz RychlickiThe current Polish legislation on e-signature includes the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments. The provisions of Article 3 of the ESA introduced two types of e-signature: “electronic signature”, which means data in electronic form which, together with other data, either attached thereto or logically associated therewith, are capable of identifying the signatory and the so-called “secure electronic signature”, which means electronic signature which is uniquely assigned to the signatory, is made using secure signature-creation device and signature-creation data that the signatory can maintain under his sole control, is related to the data to which it has been attached in such a manner that any subsequent change of the data is recognizable.
According to article 5 of the ESA, the data in electronic form bearing a secure electronic signature verified by a valid qualified certificate shall be legally recognized as equivalent to documents bearing handwritten signatures. A secure electronic signature verified by a valid qualified certificate shall ensure the integrity of the data bearing the signature and unambiguous indication of the qualified certificate by assuring that any subsequent changes of the data and any subsequent changes of the indication of the certificate used to verify the signature are recognizable.
Recently, the Polish Ministry of Economy proposed amendments to the ESA. The draft provides new types of e-signatures that are consistent with the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signature.
The draft provides 4 types of e-signature: normal, advanced, personal and certified. The normal one will be the same features as present “electronic signature” as defined in article 3 of the ASA and will primarily serve as a declaration of identity.
The advanced e-signature will have to meet the additional requirements for certification of the person using it. It will certify the data integrity and allow you to establish the identity of the signatory to both individuals and legal persons, such as when submitting electronic invoices.
The data in electronic form signed by a qualified (secure) electronic signature will have specific legal effects – the same as a handwritten signature for the data recorded on paper. Such data will be admissible as evidence in legal proceedings. The signature will be used to sign statements of knowledge and will.
Polish case law on e-access to public information
January 21st, 2010, Tomasz RychlickiBelow, you will find a list of judgments on e-access to public information. By “e-access to public information” I mean all issues related to obtaining public information through or with the help of IT technology. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.
– The judgment of the Voivodeship Administrative Court of 15 March 2013 case file II SAB/Wa 513/12.
– The judgment of the Voivodeship Administrative Court of 18 December 2012 case file II SAB/Wa 335/12.
– The judgment of the Voivodeship Administrative Court in Kraków of 26 November 2012 case file II SAB/KR 152/12.
– The judgment of the Voivodeship Administrative Court in Warsaw of 24 October 2012 case file II SAB/Wa 245/12.
– The judgment of the Voivodeship Administrative Court in Kraków of 18 September 2012 case file II SAB/Kr 105/12.
– The judgment of the Supreme Administrative Court of 14 September 2012 case file I OSK 1203/12.
– The judgment of the Voivodeship Administrative Court of 13 July 2012 case file II SAB/Wa 30/12.
– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 730/12.
– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 666/12.
– The judgment of the Voivodeship Administrative Court in Lublin of 20 March 2012 case file II SAB/Lu 10/12.
– The judgment of the Supreme Administrative Court of 3 February 2012 case file I OSK 2172/11.
– The judgment of the Voivodeship Administrative Court in Gliwice of 19 September 2011 case file IV SA/Gl 1002/11.
– The judgment of the Voivodeship Administrative Court in Gliwice of 2 August 2011 case file II SAB/Wa 86/07.
– The judgment of the Supreme Administrative Court of 3 August 2010 case file I OSK 1727/09.
– The judgment of the Regional Court Katowice Wchód in Katowice of 27 April 2010 case file I C 19/10.
– The judgment of the Voivodeship Administrative Court in Szczecin of 16 December 2009 case file II SAB/Sz 148/09.
– The judgment of the Voivodeship Administrative Court in Warsaw case file II SAB/Wa 57/09.
– The judgment of the Voivodeship Administrative Court in Warsaw of 10 December 2007 case file II SAB/Wa 86/07.
– The judgment of the Supreme Administrative Court of 14 March 2006 case file I OSK 190/06.