E-signatures in finance and NPL transactions in Slovenia

Under Slovenian law, agreements can be concluded in any form unless a specific form is expressly prescribed by law. In general, specific forms are prescribed for agreements that are deemed to be of greater importance or if the public interest needs to be protected.
 
For example, the written form is prescribed for agreements to transfer real estate, agreements to establish a right in rem over real estate (e.g. mortgage agreement), agreements on out-of-court sales, etc. Further, the form of notarial deed is prescribed for share pledge agreements, non-possessory pledge agreements, fiduciary transfer of ownership, fiduciary assignment of claims, etc.

Please note that security documents are in practice often voluntarily executed in the form of a notarial deed to achieve direct enforceability in the event of default. 

As a general rule, the written form can also be achieved by appropriate execution in electronic form. However, the law specifically lists agreements for which an electronic form is not accepted. These agreements include documents to be submitted to the land registry (e.g. establishing a right in rem over real estate), agreements for which the legislation requires to be concluded in the form of a notary deed, etc.

The Electronic Business and Electronic Signature Act (Zakon o elektronskem poslovanju in elektronskem podpisu; the “ZEPEP”) stipulates that if the written form is prescribed by law or regulation, the electronic form will be deemed to be equivalent to the written form if the data in electronic form are available and suitable for later use. Certain exceptions apply as specified under question 1.

Further, the ZEPEP stipulates that a secure electronic signature, certified by a qualified certificate, is equivalent to a handwritten signature and has the same validity and probative value. 

Based on the above, any agreements (except those explicitly excluded) for which the written form is prescribed could also be executed in an electronic form if certain technical standards are met. 

Only a qualified electronic signature has the same validity and probative value as a handwritten signature. 

We are not aware of any such methods. 

The ZEPEP states that an electronic signature will not be denied validity or probative value solely because of its electronic form, or because it is not based on a qualified certificate.

This means that if no form is prescribed, any kind of electronic signature should suffice to validly conclude an agreement. However, if a signature is not reliable, the interested party would have to prove its authenticity in the event of a dispute.  

No special provisions exist regarding attorney’s signatures. Therefore, if the written form is prescribed by law, the countersignature is acceptable only if signed by a qualified electronic signature. If no specific form is prescribed, any kind of electronic countersignature can be used. 

According to the Slovenian Notarial Act (Zakon o notariatu), notarial deeds can be made as physical documents or in an electronic form. The authenticity, immutability and reliability of storage must be guaranteed for the electronic form to be valid. Such electronic document has the same effects as a document in physical form. 

The Apostille is accepted in electronic form in Slovenia. Slovenia has implemented the Electronic Apostille Program (e-APP). 

According to the Slovenian Prevention of Money Laundering and Terrorist Financing Act (Zakon o preprečevanju pranja denarja in financiranja terorizma; the “ZPPDFT-1”), customer authentication/identification is permissible by means of electronic identification with a high level of reliability. 

Only electronic identification with a high level of reliability is accepted. If certain information cannot be obtained via electronic identification, a copy of an official identification document on paper or in digital form should be used. If further information is required, it must be obtained directly from the client.

Subject to the fulfilment of certain conditions, the ZPPDFT-1 also allows real-time identification via video-electronic identification. To use this means of identification, the person performing the video-electronic identification sends the customer a special unique identification number via email or SMS. That number must be assigned exclusively for the purpose of the individual video-electronic identification procedure.

Slovenian Rules on the Establishment, Maintenance and Management of the Register of Beneficial Owners provides that each entry in the register must be made online via the application on the portal of the Agency of the Republic of Slovenia for Public Legal Records and Related Services. A qualified electronic signature is required to execute any changes to the register. 

Further, the ZPPDFT-1 does not provide for any special form of PEP declaration as each supervisory authority determines the PEP procedure with its internal acts. Therefore, the form of PEP declaration should be assessed on a case-by-case basis.