Legality of eSignatures in Montenegro

Background

Electronic signatures have streamlined the documentation authentication process, offering advantages to both in Montenegro and the global community. These digital mechanisms facilitate swift and environmentally conscious transactions by curtailing paper usage and hastening contract finalization.

For successful adoption in Montenegro, it is crucial to select an electronic signature tool that aligns with the nation’s legal stipulations, specifically the Law on Electronic Documents¹. and the Law on Electronic Identification and Electronic Signature². This is to ascertain the legal validity of electronic signatures compared to their handwritten counterparts in Montenegro. Despite the progressive acceptance, it’s essential to recognize that some documents may still need a physical signature, and seeking legal consultation is advisable to navigate variable regional laws³.

The security measures offered by the eSignature service are paramount. The provider must guarantee robust security protocols, including encryption, authentication mechanisms, and audit logs, to prevent unauthorized access and affirm the document’s authenticity. BoldSign provides these security measures to ensure regulatory compliance and security.

Montenegrin enterprises must emphasize legal conformity, elevate security measures, and choose user-friendly platforms for integrating electronic signatures into their business frameworks. This approach boosts productivity and ensures the protection of their business exchanges.

Overview of the eSignature regulations

The laws on Electronic Documents and Electronic Identification and Electronic Signature regulate the operation of electronic signatures⁴. The regulations give eSignature the legal validity equal to that granted to the wet-ink signature before its enactment.

The Montenegro regulation grants all individuals the freedom to execute their contracts upon agreement by the contracting parties electronically. Such contracts, however, shall not be denied legal validity merely because they were completed electronically⁵.

The regulation divides electronic signatures into:

Standard electronic signatures
Advanced electronic signatures
Qualified electronic signatures

A standard electronic signature is a set of data in electronic form attached to or logically associated with an electronic document and used for the signature and electronic identification of the signatory⁶.

Electronic signatures are created by electronic signature creation devices and are based on a certificate for electronic signature creation. A certificate for an electronic signature is a document in electronic form that is signed by the electronic trust service provider, binding data for verification of the electronic signature to a person and confirming that person’s identity.

An advanced electronic signature is an electronic signature that reliably guarantees the identity of the signer and the integrity of the electronic document, and meets the requirements laid down by this Law. The advanced electronic signature must be⁷:

Uniquely linked to the signer.
Capable of identifying the signer
Developed using means that the signer can maintain their control
Linked to the data it relates to, so that any subsequent change to the data is detectable

Uniquely linked to the signer

An advanced electronic signature must be uniquely connected to the person using it. The signature must be uniquely created using methods only the signer can access, like a private key and confidential information, to verify their identity.

Use and incorporation remain in their sole control 

The person using the secure electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery. 

Identify the person using the technological process 

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a personal identification number (PIN), an email address, or even a company registration number.

Track down any alterations made after signing 

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be clearly identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer’s IP address, timestamps of key signing events, and location, providing proof of identity, timing, and the location of the signature. 

A qualified electronic signature is an advanced electronic signature generated using a certified device for creating electronic signatures and relies on an accredited certificate specific to electronic signatures⁸.

A qualified electronic signature is deemed to have the equivalent legal effect of a handwritten signature, or a handwritten signature and a seal about data in paper form, and it is admissible as evidence in proceedings before state authorities, state administration authorities, local self-government authorities, and local government authorities, and legal persons that perform public functions⁹.

Recognition of foreign electronic certificates and signatures

It’s important to note that Montenegro recognizes the validity of electronic trust services provided by foreign entities under certain conditions. Firstly, qualified electronic trust services can be offered by providers based in Montenegro and those established in other countries. This is significant for the digital market, as it allows greater flexibility and a wider range of services for users in Montenegro.

For an electronic trust service provider outside Montenegro to issue a qualified certificate with the same legal status as one issued domestically, it must meet specific high standards required by Montenegrin law. The standards are:

An electronic trust service provider issuing qualified certificates in Montenegro must comply with Montenegrin law and be registered in Montenegro or an EU member state.
Their certificates must be backed by a guarantee from a provider registered in Montenegro or the EU.
Certificates must adhere to international standards per Montenegro’s agreements with other states or organizations.
Providers in non-EU countries must ensure their certificates conform to EU or international standards.
EU-based providers must meet EU regulations for certificate issuance.

Montenegro recognizes the legal validity of certificates from EU electronic trust service providers despite potential differences in qualifications. It aligns its digital services with EU standards and promotes international digital transactions. The country is working towards integrating its electronic trust services with global and European norms, which enhances market openness and ensures a solid legal framework for secure electronic transactions¹⁰.

Validity of electronic documents

The legal validity of electronic documents is contingent upon certain requirements. An electronic document must be created, dispatched, received, kept, and stored using available information technology; meet specific conditions; contain a basic structure; and be presented in a compliant form.

For an electronic document to be valid throughout its documentation cycle, it must be uniquely marked for ,precise identification, contain a unique mark identifying its creator, ensure information integrity and inviolability, allow access to its content at every stage, and be easily readable.

The structure of an electronic document comprises two inseparable parts: a general part containing the document’s content and, if applicable, the recipient’s name; and a separate part with embedded electronic signatures, timestamps, and other documentation features.

The appearance of an electronic document includes both internal and external forms. The internal form involves the technical and programming recording of content electronically. In contrast, the external form provides a visual and clear outline of the content on a screen, paper, or other material object¹¹.

Scope and limitations of eSignature transactions

Electronic signature transactions and their utilization do not have universal legal acceptance for document finalization. Consequently, there are specific types of transactions and uses for which electronic signatures are suitable, and others are not.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:

Human resources
Procurement
Non-disclosure agreements (assuming they are contracts, not formal deeds)
Software license agreements
Public petitions
Insurance industry
Educational field, etc.

Exemptions

The regulation exempts the following transactions in limiting the scope of use of electronic signatures¹².

Contracts regulated by the law governing family relations
Property disposition contracts that require the approval of the social welfare center
Estate planning contracts
Contracts under the inheritance law
Deeds of gift
Conveyancing contracts, except for rental agreements
Notaries
Guarantee agreements where the guarantor is a person acting outside their profession or trade

Summary of the scope and limitations of eSignature transactions

Permissible transactions	Exempted transactions
Human Resources Procurement Non-Disclosure Agreements(assuming they are contracts, not formal deeds) Software License Agreements Public petitions Insurance Industry Educational field, etc.	Family law contracts Property disposition contracts that require the approval of the social welfare center Estate planning contracts Contracts under the inheritance law Deeds of gift Conveyancing contracts, except for rental agreements Notaries Guarantee agreements where the guarantor is a person acting outside their profession or trade

How does BoldSign help

The following elements of compliance available within BoldSign can be used to comply with Montenegro eSignature laws:

Secure and unique signing link: Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This ensures that the document is only accessed by the intended signer and cannot be tampered with.
Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
Audit trail: : Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This helps ensure that the signer is aware of the implications of signing electronically and has consented to do so.
Custom terms: Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
QES compliance: BoldSign offers fully compliant qualified electronic signatures (QES) that are simple, secure, and legally binding across the EU. QES guarantees that your essential documents are protected with the highest level of e-signature security, giving you peace of mind in your digital transactions. Using BoldSign, you can confidently manage your important documents while ensuring compliance with EU regulations.

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations are subject to frequent changes, and the information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information, without limitation of any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Syncfusion nor its officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

¹ Law on Electronic Document -[https://legalizacija.me/wp-content/uploads/2017/05/12.-Law-on-electronic-document.pdf]
² Law on electronic identification and electronic signature (No. 31/2017 and 72/2019) – [https://wapi.gov.me/download-preview/42be9a4a-9c22-43b9-b245-6d9ebe87a44b?version=1.0]
³ Anna Nordén, ‘Electronic signatures in a legal context,’ in Cecilia Magnusson Sjöberg, editor, I.T. Law for I.T. Professionals – an introduction (Studentlitteratur AB; 2005) pp. 152-154; Ubena John, ‘E-documents & E-signatures in Tanzania: Their Role, Status, and the Future,’ p 104; Stephen Mason, ‘The practical issues in using electronic signatures in different jurisdictions,’ Computer and Telecommunications Law Review, 2021, Volume 27, Issue 6, pp. 165-179
⁴ Law on electronic identification and electronic signature (No. 31/2017 and 72/2019) -[https://wapi.gov.me/download-preview/42be9a4a-9c22-43b9-b245-6d9ebe87a44b?version=1.0]
⁵ Ibid Art. 12, and 13
⁶ Ibid (N.4) Art. 9
⁷Ibid (N. 4) Art 8
⁸Ibid Art 11
⁹Ibid Art. 14
¹⁰Ibid (N. 4) Art 36
¹¹Ibid (N.1) Art. 6
¹²Electronic Commerce Law, (2011) Art.11 -[https://ecommerce4all.me/wp-content/uploads/sites/6/2022/08/law-on-electronic-trade_en_zakon-o-elektronskoj-trgovini.pdf]

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We’re using BoldSign successfully in our b2b SaaS platform - as it’s embedded to allow seasonal farm workers and their agribusiness employers to e-sign their employment onboarding documents for the first time. It’s part of the total solution saving the workers and HR managers 50% more time compared to their traditional pen/paper manual process.

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Croft

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