Act on Electronic Delivery – the most important presumptions of the draft

Under the pressure of the legislative fight against the pandemic and its consequences, it is worth noting that last week the first reading of the act on electronic delivery took place. The Council of Ministers completed work on this document at the beginning of February this year. Should we expect a revolution in the citizen-authorities relationship and what does the law offer entrepreneurs? We would like to invite you to read the study of the most important aspects of the draft, which is planned to enter into force on 1 October 2020.

1. Who’s who in the draft?

Electronic delivery is to operate between the public entity and the non-public entity and between public entities. The aim is to replace traditional letter mail with electronic correspondence, while maintaining secure data transmission and securing the details (evidence) of sending and receiving the mail.

According to the Act, non-public entities are natural persons and other persons who are not public entities. In turn, as a public entity the Act recognises entities from the public finance sector, other state organisational units, as well as legal persons established for the specific purpose of satisfying needs of a universal nature, controlled by entities from the two previous groups. In addition, the group of public entities includes court bailiffs.

Electronic addresses for delivery will be subject to entry in a database, which is in fact a public register kept by the Minister for Digital Affairs, although non-public entities will also be able to use addresses not included in the database, which will be discussed in the following section.

2. What kind of correspondence can be delivered electronically? 

The Act covers official correspondence in relations with public entities. In simpler terms, handling administrative matters will be possible by means of electronic delivery, the legal effects of which are to be equal to traditional letters. Importantly, electronic delivery is to cover only correspondence for which an acknowledgement of receipt or transmission is required. The whole thing is to take place using the electronic address entered into the database created for this purpose. If the originator of the communication is an entity using an address not registered in the database, then the public entity will be able to correspond using electronic delivery to the address from which the non-public entity has sent the message. However, it should still be the address for delivery, i.e. the mailbox that the sender has defined in this way.

The draft provides for the possibility of electronic delivery, except for situations indicated by law. Correspondence containing classified information will continue to be sent by traditional mail. In connection with the digitisation of public procurement procedures, organisation of proceedings under the Public Procurement Law and in procedures for the conclusion of a concession for construction works or services, the Act on Electronic Deliveries will not interfere with already functioning modes of communication between the participants. The same applies to the system already in place covering court proceedings and document repositories. The list of the above exclusions is set forth in Article 3 of the Act.

3. What is an “electronic delivery” as defined in the act?

The definition of a “public electronic registered delivery service” set forth in the legislative glossary refers to a Regulation of the European Parliament and of the Council of the EU^[1] and means a service by which data can be transferred between parties by electronic means in such a way as to provide evidence of sending and receipt of the data, while protecting against the risk of loss, theft, damage or any other unauthorised change. The Act therefore provides for the creation of a service by means of which correspondence conducted by public administration bodies could be completely electronic, with all the evidential and confidential qualities required and guaranteed by traditional, letter-based method of communication.

4. What is a hybrid delivery and when will it be used?

Hybrid delivery is a solution known to the postal law – it consists in sending a postal item by electronic means, provided that at the stage of receipt, transmission or delivery the item has taken the form of a postal letter.

Hybrid delivery on the basis of the Act on Electronic Delivery will apply in several situations, usually requiring delivery in a traditional paper form. First of all, this will happen when it is impossible to deliver to an electronic address and when the public entity has knowledge that the addressee, who is a natural person and has an electronic address registered in the database, is deprived of liberty. Moreover, the Act indicates in Article 6 a number of obstacles of a technical, organisational or state interest nature. What should not be questionable is that a hybrid delivery will also be used at the request of the addressee, provided that the original delivery (e.g. the original document) is made in writing.

5. Who will be entitled to have and who will be obliged to have an electronic delivery address?

The list of entities obliged to have an electronic address for service, entered in the address database, is wide and includes:

• public entities,
• active professionals: notaries public, lawyers, attorneys-at-law, patent attorneys, restructuring advisers, tax advisers and advisers to the General Attorney of the State Treasury,
• non-public entities, entered in the register of entrepreneurs of the National Court Register,
• non-public entities, registered in the CEIDG [Central Registration and Information on Business].

In other cases, a non-public entity may, but is not obliged to set up an electronic address or report it to a database. Importantly, the entry in the database will be tantamount to a request to receive correspondence using electronic delivery.

It will be possible to resign from the service of electronic delivery and delete the entry from the address database. The draft assumes that the correspondence will be kept for one year, after which it will be deleted. During this time it will be possible to access the correspondence by the entity.

6. Amendments to the Code of Administrative Procedure 

There is no doubt that such far-reaching changes in the way of communication in dealing with administrative matters require a change in the provisions of Code of Administrative Procedure. Article 14 will be amended to adapt the existing wording not only to the electronic handling of cases but also to their management, including the use of automatically generated letters which do not require the signature of the official due to the electronic seal placed beforehand. The institution of an electronic document is to disappear permanently from the provisions of Code of Administrative Procedure.

The technical aspects relating to the service, sending and receipt of letters in the form of electronic delivery will be based on the evidence of receipt issued, which will depend on the addressee’s receipt of the correspondence. By receipt, the Act means the addressee’s action, which makes it possible to get acquainted with the document that has been submitted to the electronic address. In turn, the arrival of a document at an electronic address means that the addressee is technically able to read the content of the correspondence. The draft also provides for a presumption of delivery, i.e. the electronic equivalent of notification – the document sent by electronic delivery will be deemed to have been delivered correctly within 14 days as of the date indicated in the proof of arrival of correspondence to the address registered in the database, unless the addressee has received the document before.

[1] Article 3(36) of Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.

Adam Madejski, attorney-at-law