1.  E-contracting, e-statements and e-signatures in banking & finance transaction contracts and legal statements
    1. Which are the typical documents (contracts, legal statements, etc.) where written form, paper format and wet-ink signatures are mandatory?
    2. Which are the typical documents where written form is mandatory, and electronic form and e-signature are allowed?
    3.  If the written form is mandatory and electronic form and electronic signature is allowed in banking & finance transactions and agreements, what kind of e-signature is sufficient?
    4. Is there any other electronic signing/acceptance/ statement making method which meets the criteria of written documents in banking & finance transactions and agreements?
    5.  If written form is not mandatory, what kind of e-signature or other e-acceptance method is sufficient?
  2.  Electronic attorney countersigning, notarial deed and Apostille
    1.  Is the attorney countersigning accepted in electronic form? If yes, in what form and on what conditions?
    2.  Is the notarial deed accepted in electronic form? If yes, with what conditions? 
    3.  Is the Apostille accepted in electronic form (e-Apostille)? Is your jurisdiction member of the e-Apostille Program (e-APP)?
  3. Electronic AML customer authentication/identification
    1.  Is the AML customer authentication/identification allowed in electronic way?
    2. Which electronic AML customer authentication (verification)/identification methods are accepted? 
    3.  Are the beneficiary owner declaration and PEP declaration accepted in electronic form? If yes, with what kind of formalities?

jurisdiction

Poland

The written form is mandatory for most financial contracts (facility agreements, bank account agreements, and bank guarantees), and security documents (e.g. financial and registered pledges, guarantees).

In each case the written form is required, a document can also be signed electronically. Qualified electronic signatures are equivalent to written wet-ink signatures. 

An electronic certification of date (qualified electronic time stamp) can also be used instead of a wet-ink notarial or bank certification.

However, certain documents require a specific qualified written form with notarised signatures or a form of notarial deed; in particular, documents to be filed with a land and mortgage registry court such as mortgages. The notarisation of signatures and notarial deeds can only be executed in wet-ink form.

Furthermore, if a document is to be apostilled, it needs to be executed in wet-ink form

1.2 Which are the typical documents where written form is mandatory, and electronic form and e-signature are allowed?

See point 1 above; in principle, if the written form is required, the electronic form would also be permitted. 

The catalogue of documents commonly signed in electronic form includes:

  • facility/loan agreements;
  • bank account agreements;
  • guarantees (suretyships);
  • pledge agreements; 
  • security assignment agreements;
  • powers of attorney;
  • leasing agreements;
  • factoring agreements.

1.3 If the written form is mandatory and electronic form and electronic signature is allowed in banking & finance transactions and agreements, what kind of e-signature is sufficient?

Only a qualified electronic signature (QES; where a valid certificate is needed to attest to the authenticity of an electronic signature and serve as proof of the identity of the signatory) is deemed an equivalent of written wet-ink form. 

However, if the law does not require the written form for the validity of a given contract (e.g. loan agreement other than a facility agreement), any document, including electronic documents with non-qualified signatures or even not bearing any signatures (e.g. email) can be submitted as evidence of executing a valid contract. 

1.4 Is there any other electronic signing/acceptance/ statement making method which meets the criteria of written documents in banking & finance transactions and agreements?

As mentioned in point 3 above, in the case of certain contracts and statements, if the written form is not mandated by law, any form of document can be submitted as evidence. It would ultimately be up to the court on a case-by-case basis to decide whether a given document is sufficient to identify the parties and whether the contract was effectively concluded.

However, in banking and finance transactions in Poland, only the QES is used in practice to replace the wet-ink form regardless of formal legal requirements.

Nevertheless, Polish Banking Law introduces a specific solution for a limited scope of documents. Declarations of will relating to banking operations can be made in electronic format (postać elektroniczna) and will be recognised as fulfilling the written form requirement, including where for a given document, the written form under the pain of invalidity is required. The electronic format (postać elektroniczna) should be distinguished from the electronic form (forma elektroniczna). In order to satisfy the latter, a QES must be used, whereas for the electronic format requirement, a non-qualified electronic signature is sufficient. The electronic format—with the effect of written form granted by the Banking Law—can however be implemented only regarding declarations of will being made in banking activities, not all transaction documents in general. In addition, the above solution is envisaged for documents for which the written form, including the written form under the pain of invalidity, is (originally) required. Consequently, if for an agreement being concluded in banking activities, registration or notarisation is required, the electronic format (e.g. non-qualified signature) will be insufficient. 

1.5 If written form is not mandatory, what kind of e-signature or other e-acceptance method is sufficient?

See point 4 above. If there is no requirement for the written form, any electronic piece of information can in theory be used as evidence of entering into a contract, including via email, SMS, SWIFT, an internet app or website, exchange via electronic communicators, etc.

2. Electronic attorney countersigning, notarial deed and Apostille

2.1 Is the attorney countersigning accepted in electronic form? If yes, in what form and on what conditions?

The concept of “attorney countersigning” is not recognised under Polish law. The (counter)signing  of documents by an attorney at law, on the basis of a power of attorney, is ruled by the general form requirements, as described above.

2.2 Is the notarial deed accepted in electronic form? If yes, with what conditions? 

No.

2.3 Is the Apostille accepted in electronic form (e-Apostille)? Is your jurisdiction member of the e-Apostille Program (e-APP)?

No.

3. Electronic AML customer authentication/identification

3.1 Is the AML customer authentication/identification allowed in electronic way?

Yes. 

According to the Polish Act on counteracting money laundering and terrorist financing (the “Polish AML Act”), obliged institutions, including banks, must apply financial security measures, including customer identification and verification of the customer’s identity, in a scope considering the identified money laundering and terrorist financing risk involved in a business relationship or occasional transaction, and the assessment of that risk. The bank may choose to conduct the customer identification and verification process electronically. However, the above-mentioned general rule applies and the electronic methods of a customer’s identification and verification should take into account the identified risk level/profile. In other words, the bank must ensure that the electronic methods it puts in place are appropriately designed/diversified depending on the level of the risk associated with a given client.

Importantly, according to the Polish AML Act a higher money laundering and terrorist financing risk may occur, e.g. in the case of the establishment or maintenance of a business relationship or the carrying out of an occasional transaction without the physical presence of the customer, where the associated higher money laundering or terrorist financing risk has not been otherwise limited, including by the use of notified electronic identification means within the meaning of the Regulation (EU) No. 910/2014 (eIDAS), including a qualified electronic signature (QES) or a signature confirmed by an ePUAP trusted profile. As clarified by the General Inspector of Financial Information (the Polish FIU), the fact that the customer is not physically present when establishing a business relationship or carrying out an occasional transaction does not automatically trigger a higher risk of money laundering and terrorist financing, but may only indicate the occurrence of such risk. 

3.2 Which electronic AML customer authentication (verification)/identification methods are accepted? 

The customer’s identification is a relatively straight-forward process and consists in collecting the necessary identification data by electronic means (e.g. by email or by filling in a form on the website of the bank). Next, the verification of the identity of a customer, a person authorised to act on behalf of a customer, and a beneficial owner consists in confirming the collected identification data with a document evidencing the identity of an individual person, a document containing up-to-date data from an extract from the relevant register or other documents, data or information from a reliable and independent source.

In terms of verifying the identity of the customer without his/her physical presence, the electronic identification means under eIDAS, including the qualified electronic signature (QES), are deemed to be the most reliable verification instruments. If it is not possible to use these electronic identification means, the bank should consider applying enhanced financial security measures.

Bearing in mind the risk-based approach of the AML regulations, it is left to the bank what documents it will use to verify a customer’s identity and what methods it will apply to access verification materials. Among Polish banks, the most commonly used verification method in the case of remotely establishing a business relationship is video-verification. The bank can, e.g. access the verification materials by means of a video call, during which a bank’s employee has the opportunity to look at the originals presented by the customer and ascertain that the verification materials are not falsified, and, in the case of verification on the basis of an identity document or other document with a photograph, whether the person in the photograph is the person with whom the employee is speaking. The Polish Financial Supervisory Authority (Komisja Nadzoru Finansowego) published good practices regarding the video-verification in its Statement on customer’s identification and verification of customer’s identity based on the video-verification method on 5 June 2019.

3.3 Are the beneficiary owner declaration and PEP declaration accepted in electronic form? If yes, with what kind of formalities?

Yes. Under the Polish AML Act, to determine whether a customer or a beneficial owner is a politically exposed person (PEP), the bank should collect a declaration in the written form (i.e. wet-ink signature or QES) or document form (e.g. non-qualified electronic signature).