Electronic signature law in commercial contracts in Bulgaria

The legal statement in commercial agreements is considered in written form:

  1. If the paper-based legal statement is signed by handwritten signature; 
  2. For commercial transactions, if the statement has been recorded in a manner that could be reproduced;
  3. An electronic statement that is signed by qualified electronic signature (which is equivalent to a handwritten signature): in cases where the electronic document and its signing are contested in court, a qualified certificate for the electronic signature, issued by a qualified trust service provider, may be required; 
  4. An electronic statement that is signed by simple electronic signature, or advanced electronic signature where the parties have agreed that the respective signature will be equivalent to a handwritten signature. 

A written form for validity of commercial transactions is required only if there is a specific legal requirement provided. In all other cases, written form shall not be required.  

When the electronic document (including an electronic statement) is considered to be in a written form and may be used in all cases where the legislation requires  simple written form for the conclusion and validity of a contract. 

The electronic document cannot be used when the legislation requires a qualified form for validity or proof of the statement such as a notary certification of the signature, a notarised deed, a written statement, or participation of witnesses or officials.  

Examples of contracts/agreements where a simple written form is required by law include:

  • Preliminary contracts proceeding the conclusion of a final contract for which a notary deed or notary certification is required;
  • Memorandum of Association for a limited liability company, the Deed of Incorporation of a joint-stock company, and management agreements for the management of an LLC and JSC;
  • In all cases where there is a legal requirement on the written form of a contract, its amendments and annexes;
  • A sale with buyback option, a sale with an advanced payment arrangement, and a sale in instalments;
  • Bank credits;
  • License agreements for copyright and neighbouring rights for licenses of moral rights, licenses of exclusive rights, and licenses of the neighbouring rights of performing artists;         
  • Other license agreements for TMs and industrial designs; 
  • Contracts above EUR 2,500, for evidential purposes since proving the existence of such a contract by using testimony in court is inadmissible; and
  • Insurance contracts.

There are specific regulations on the storage of electronic tax documents. The Bulgarian Value Added Tax Act provides that when an electronic tax document is stored by electronic means, the data ensuring the authenticity of origin and integrity  of their content must also be stored. The authenticity of the origin of the electronic tax document, its integrity of content and readability must be guaranteed for the entire five years of storage. When the electronic means for storage of electronic invoices and electronic notifications to invoices issued or received, tax authorities must be provided electronic access to the stored data.

An Ordinance on the types of requirements for creation and storage of electronic documents in the employment file of the employee provides special legal provisions for digital storage of these documents as part of the employment file. The employer is allowed to use electronic systems for creation and storage of these documents. Access to the system must be through two-factor authentication. The employee will have to be provided with free and uninterrupted access to the employment file. The employee must maintain the electronic system in a way that does not allow accident or illegal  destruction of any documents or data and must prevent unauthorised access, modifications or information spreading. The electronic system must secure: (i) the correct reporting and certifying of the exact time for the occurrence of all facts of legal significance with a qualified time certificate; (ii) storage on the historical data on all entries, operations, persons and IP addresses performing these operations; (iii) tracing and historical data printed on paper and providing copies of the electronic documents that are part of the employment file; (iv) connection to all departments ensuring registration of the documents filed; (v) receiving and sending documents through electronic a registered delivery service, signed with an electronic signature; (vi) electronic access to information and documents.

4. Main and relevant court practices

Supreme Court of Cassation (SCC) No. 70/ 19.02.2014 stipulates that the electronic document, signed with a qualified electronic signature and the electronic document that is signed with a simple electronic signature (where the parties have agreed that the respective signature will be the equivalent to a handwritten signature) will both be considered and assessed as equivalent to the signed written document for evidential purposes.  

5. In which cases are documents only with wet ink signatures accepted?

Electronic documents cannot be used when the legislation requires a qualified form for validity or proof of the statement such as for example notary certification of the signature, notarised deed, own writing of the statement, participation of witnesses or officials.  Real estate sale and purchase agreement are such an example.   

6. List of the relevant national legislation

Electronic Document and Electronic Trust Services Act of 2017 as amended, is the main source, EU Regulation No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.

1. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) and with a time stamp

Yes

2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp

Yes

3. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) and with a time stamp

Yes, if the parties to the contract have agreed that the advanced electronic signature will be equivalent to a handwritten signature. 

4. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) without a time stamp

Yes, if the parties to the contract have agreed that the advanced electronic signature will be equivalent to a handwritten signature. 

5. Electronic document signed with advanced biometric signature

N/A

6. Electronic document signed with a simple, standard electronic signature (SES)

Yes, if the parties to the contract have agreed that the simple electronic signature will be equivalent to a handwritten signature. 

7. Scanned electronic version of the original paper-based document with handwritten signature sent as an attachment in ordinary e-mail without an electronic signature, but with standard e-mail signature panel

Yes, if the parties to the contract have agreed that the simple electronic signature will be equivalent to a handwritten signature and if the statement has been technically recorded in a manner that could be reproduced. 

8. Legal statement sent as a text of an ordinary e-mail without an electronic signature, but with a standard e-mail signature panel

Yes, if the e-mail has been actually received by the addressee and if the statement has been technically recorded in a manner that could be reproduced. (In each particular case, the court will assess all the relevant technical details (e.g. through expert witnesses) and will assess all the factual background based on the relevant provisions of the Commerce Act and if an agreement has been reached through e-mail correspondence) (Relevant case-law: Decision 836/10.05.2016 of the Sofia District Court in case No8520/2013, confirmed by the Court of Appeal - Sofia Decision 1213/30.05.2017, case No 4160/2016 under appeal, Sofia City Court Decision No 1625/18.09.2019 in case No 7408/2016 under appeal and others).

9. Legal statement sent in an SMS

No relevant case law is available to confirm if the exchange of SMSs would be regarded as statements that have been technically recorded in a manner that could be reproduced.

10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail

Not recommended, unless the e-mail incorporates the statement included in the attachment and is sent by the author of the statement. 
The attachment must be received by the addressee and the statement must have been technically recorded in a manner that could be reproduced. In each particular case, the court will assess all the relevant technical details on the content of the statements (e.g. through expert witnesses) and will assess the factual background based on the relevant provisions of the Commerce Act and if an actual agreement has been reached through e-mail correspondence.

11. Electronic document with the typed name of the signer and sent as an e-mail attachment

Not recommended, unless the e-mail incorporates the statement included in the attachment and is sent by the author of the statement. 
The attachment must be received by the addressee and the statement must have been technically recorded in a manner that could be reproduced. In each particular case, the court will assess all the relevant technical details and the content of the statements (e.g. through expert witnesses) and will assess the factual background based on the relevant provisions of the Commerce Act and if an actual agreement has been reached through the e-mail correspondence.

12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.)

Not recommended, no relevant case law is available to confirm if the exchange of messages will be regarded as a statement that has been technically recorded in a manner that could be reproduced.

13. Electronic legal statement sent in a chat application

Not recommended, no relevant case law is available to confirm if the exchange of messages will be regarded as a statement that has been technically recorded in a manner that could be reproduced.

14. Electronic document created on an electronic platform ensured by the other party requesting the legal statement (without an electronic signature) by another party whom the operator of the platform granted access 

No

15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES)

Yes, if the document is signed with a simple electronic signature and the parties to the contract have agreed that the simple electronic signature will be equivalent to a handwritten signature.

16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation

No

17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements")

No, but it will depend of the whole communication and the gathering of data surrounding a contract.
Portrait ofDesislava Anastasova
Desislava Anastasova
Senior Associate
Sofia
Portrait ofAssen Georgiev
Assen Georgiev
Partner
Sofia
Portrait ofAnna Tanova
Anna Tanova
Counsel
Sofia