Electronic Signature Laws & Regulations - Serbia

Electronic signatures are increasingly being used in Serbia. The principal Serbian law governing electronic signatures, i.e., the Law on Electronic Document, Electronic Identification and Trust Services in Electronic Business (“Official Gazette of the Republic of Serbia, nos. 94/2017 and 52/2021) (“Relevant Local Law”) was adopted with the objective of aligning the relevant Serbian legislation with eIDAS. As such, the Relevant Local Law superseded the previous Serbian laws governing electronic signatures and electronic documents (i.e., the Law on Electronic Signature originating from 2004 and Law on Electronic Document originating from 2009) (“Previous Laws”).

The Relevant Local Law entered into force on 27 October 2017. In addition to the Relevant Local Law, there is a set of subordinate legislation/regulations governing in further detail particular issues envisaged by the Relevant Local Law (e.g., regulations governing requirements which providers of so-called qualified trust services, also including providers of qualified electronic signature services, have to fulfill).

Types of Electronic Signatures

Under the Relevant Local Law, there are three types of electronic signatures:

1. A (simple) electronic signature is defined as a set of data in electronic form which is attached to or logically associated with other (signed) data in electronic form in a way that integrity of such data and identity of signatory are confirmed by an electronic signature.
2. An advanced electronic signature (“AES”) is an electronic signature which fulfills additional requirements for ensuring a higher level of reliability when it comes to confirming the integrity of the data and the identity of the signatory, in line with the law.
3. A qualified electronic signature (“QES”) is an advanced electronic signature created by a qualified device for an electronic signature's creation, which is based on a qualified certificate for electronic signatures, and which is issued by the provider of a qualified trust service in line with the law.

QES can be provided/issued solely by the entities authorized for their issuance in Serbia and registered as the respective qualified service's providers (“Authorized Bodies”) by the Ministry of Information and Telecommunications as the competent state authority (“Ministry”). The list of the Authorized Bodies is published by the Ministry on its official website at https://www.mit.gov.rs/tekst/sr/583/registar-pruzalaca-kvalifikovanih-usluga-od-poverenja-.php. The current number of Authorized Bodies is quite limited (i.e., less than 10) and some of the entities included in the list are, for example, the Serbian Ministry of Interior, Serbian Chamber of Commerce, Post of Serbia and the Belgrade seated company Halcom.

In addition, it is prescribed by the law that, if there is a relevant international treaty with a particular country/condition of reciprocity, the entities which are authorized to issue qualified electronic signatures in such a foreign country, should also be authorized to do so in Serbia.

Relevant Local Law prescribes that:

• An electronic signature shall not be denied legal effect and probative force in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for QES.
• The written form of an electronic document shall not be denied legal effect and probative force in legal proceedings solely on the grounds that it is in an electronic form.
• A QES shall have the equivalent legal effect of a handwritten signature.

Unlike the Previous Laws, which prescribed particular types of documents that could not be electronically signed, the current Relevant Local Law governs that matter in a more general manner by referring to prohibitions in other specific/applicable Serbian regulations.

The Relevant Local law does not specify the exact agreement or documents that may not be executed with an electronic signature. Instead, it provides that electronic signing is not an option for any contract, other document or legal transaction that a particular Serbian legislation/regulation prescribes must be drawn up in the form of a signature certification or verification, publicly certified (solemnized) documents or in the form of a notary deed (e.g., real estate sales agreements).

Generally, when it comes to any documents, types of the documents or contracts for which it is prescribed that they should be hand-signed or that they should be in a written form (e.g., employment agreements, license agreements, etc.), a QES is the required (or at least recommendable) form since only QES has the equivalent legal effect as a handwritten signature.

Note that there are also arguments for claiming that, when a written form of a document is prescribed as needed, a QES is not necessary, but that, instead, an AES or simple electronic signature should/may be acceptable. This is subject to the circumstances of each particular case, which may impact the decision of which type of electronic signature to use, such as commercial or other importance of such documents or agreements, their value and whether state authorities are involved in the respective transactions or relationships. State authorities they tend to be more formalistic towards preferring QES or even hand-written signatures, in comparison to non-governmental business entities.

There are certain use cases where the creation and use of a QES is a requirement. For example, such a requirement exists in relation to the procedure for the registration of a legal entity's ultimate beneficial owner (UBO), as well as the procedure for the submission/registration of a legal entity's financial reports, both performed before the Serbian Business Registers Agency (APR) as the state authority competent for registration of business subjects or legal entities. Both procedures can be executed solely by authorized representatives of legal entities who should have QES issued to them in Serbia.

Use of electronic signatures in practice
In general, as mentioned above, electronic signatures are used relatively frequently in Serbia, i.e., their use has certainly increased in comparison to the past. Nevertheless, they are still not as standard as wet signatures. Although they are generally widely accepted in the business community, judges and other state authorities are not always fully familiar with the laws governing electronic signatures and/or they may be reluctant to accept e-signatures. Moreover, it still happens frequently in practice that, although electronic signatures are, equalized with wet signatures (subject to certain exceptions when electronic signatures are not allowed at all), state authorities may insist or prefer obtaining hard-copy documents instead of electronically signed ones. For example, when labour inspectors are requesting to check employment agreements that an entity subject to their inspection has entered into with its employees, they often expect to receive hard-copy documents.