E-signatures in finance and NPL transactions in Slovakia

Most agreements on financial services, including finance transaction contracts and their modification and termination, must be in writing and in most cases can be signed electronically (see next question). However, there are some cases where only a wet-ink signature is sufficient on a paper document, including:

• documents where a wet-ink signature is required for the document to be successfully submitted to the respective register, such as the Central Depository, e.g. mortgage/share pledge agreement, share escrow, power of attorney related to these transactions;
• documents with the verification of signatures (including apostilles if applicable); although a QES can replace any additional verification of signatures, it might not be recognised by all authorities in practice (however, it works in case of the Commercial Register);
• other special documents such as notarial deeds (on direct enforceability) and endorsements in a share pledge.

In these cases an electronic signature is insufficient.

In general, signing with a qualified electronic signature or qualified electronic stamp (QES) is always sufficient if the law requires the written form. In addition, such signing can replace any additional verification of signatures, however certain authorities are sometimes reluctant to fully accept documents without such verification.

Otherwise, a legal statement is deemed written if it is made by telegraph, telex or electronic means that enable: (i) the contents of the legal statement to be recorded; and (ii) the person who made the legal statement to be identified and his/her intention to create legal relations.

However, there might be some additional requirements under special laws for the replacement of the written form through the electronic form, such as:

• the electronic form of the document is recognised only if the document is signed with a QES; if it is signed with a simple electronic signature, its submission has to be followed by the delivery of the hard-copy, e.g. in court filings and bankruptcy filings;
• the written form may be replaced only if the document can be captured on a durable medium enabling the storage of information available for the future corresponding with such information and enabling the true reproduction of the stored information (considering the case law C-49/11), and each party can obtain one such copy, e.g. in consumer contracts or contracts with non-professional clients. It is also recommended that the client confirms its express agreement with such electronic form of communication.

Since QESes are not broadly used in the private sphere, the mandatory written form is replaced with the electronic form and e-signatures mostly only in the public sector, e.g. court filings, payment orders, bankruptcy filings, filings with public authorities. 

As a result, electronic signatures are not frequently used in finance transactions, or mostly only in the following cases:

• facility/loan agreements in business relationships (i.e. not in consumer contracts);
• corporate resolutions relating to finance transactions, unless the form of a notarial deed or verification of signatures is required by applicable law; and
• various notices and other ancillary documents.

However, due to the pandemic many banks are currently considering electronic forms of documents and e-signatures.

As mentioned above, a QES is sufficient for electronically signing documents which then qualify as written documents. 

If the signer is a private person with a Slovak e-ID card, he/she can sign the document with the QES belonging to the e-ID card. 

A simple electronic signature meets the criteria of written documents if it is possible to capture the content and identify the acting person, unless the QES is expressly required, e.g. in court filings.

Generally, in many cases, the written form can be replaced with any electronic form of signing which enables the content to be captured and the acting person identified. However, in practice, especially for evidence or registration purposes, most transactions are still concluded in writing.

If the written form is not mandatory, legal statements can be made in any other way and may also be signed electronically with a simple electronic signature or SMS provided it is possible to capture the content, identify the acting person and his/her intention to create a legal relationship as stipulated by Section 43a of the Civil Code 40/1964 Coll.

Electronic countersigning by an attorney based on a power of the attorney is generally acceptable with the same requirements for the form as the respective document (including the POA issued to the attorney). 

In the case of legal statements related to the agreements mentioned in point 1.1 with the mandatory wet-ink signatures, the countersigning must also be in this form.

No, a notarial deed must be signed in the presence of the notary with the wet-ink signatures on a paper document as the notary also verifies the identity of persons signing the notarial deed.

The e-Apostille is not accepted in electronic form in Slovakia and there is no e-Register of Apostilles in Slovakia.

Slovakia has not implemented the Electronic Apostille Programme (e-APP). 

Yes, based on the relevant Slovak act on the prevention and combating of money laundering and terrorist financing (the “AML Act”), finance institutions are entitled to identify and verify their customers without the physical presence of the customer, via a safe, secure and previously audited electronic means of communication. Section 8 (1) of the AML Act stipulates that the trustworthiness of the electronic identification of the customer must be comparable to identification with the physical presence of the customer. This electronic identification and verification procedure also includes presenting and checking the signer’s official ID documents and their validity, as well as ascertaining their authenticity electronically.

The Financial Market Supervision Department of the National Bank of Slovakia issued opinion No. 1/2018 to the identification of client without a physical presence (the “Opinion”) containing IT security and other requirements and conditions for those electronic communication tools.

The Opinion does not list any methods. The authentication (verification)/identification should be comparable to those in the case of the physical presence of individual persons and include authentication (verification)/identification from internal sources (in case of existing clients) or independent external sources (checking the data from the ID, videocall, lists of politically exposed persons, etc. depending on the circumstances).

The Slovak AML Act does not expressly prescribe the form of the beneficiary owner declaration and PEP declaration. Therefore, they can also be made in electronic form, whereby the signing with a QES/AES is recommended.