Question:

a) In 2009 the party based on the call (e.g. student on the basis of the call for admission and extension of residing of the students of the higher education in student homes and at private citizens) filed an application by electronic form (without the secure electronic signature) and with regular mail on 20.07.2009. The call provided that the party must send the application by registered mail or personally with the competent agency no later than by the 20.07.2009 unless if after this date exceptional circumstances develop (e.g. without parents or guardians, heavy patient, etc.). Administrative agency did receive the application by regular mail on the next day - 21.07.2009. Was this application filed in due time?

b) For the year 2012 the agency based on adequate legal basis and after the call for submission of applications established information system that enables authentication of the user with the qualified digital certificate or by the username and password. For submission of the applications the time limit is set (e.g. filing an application by the 10.08.2012). Authenticated user in this system completes the application data/form and verifies it. Submission can be taken:
- As confirmation of data in the system (by the username and password) with the further printing of the application and sending by regular mail or
- As confirmation of data in the system with continued secured electronic signing of the application and so (exclusively) electronic submission (and potential subsequent regular mail submissions of annexes to the application).

When is the application considered due submitted according to the set time limit?

Answer:

Electronic Commerce and Electronic Signature Act (ECESA) in the Article 15 provides that secure electronic signatures certified by a qualified certificate shall with regard to data in electronic form be equivalent to a handwritten signature and this corresponds to Article 63 of the GAPA that an application can be sent electronically if it is signed with secure electronic signature certified by a qualified certificate. The possibility exists that this kind of electronic application can be incomplete. Then the same measures are taken as with the incomplete classic or paper application including with the provisions that define different time limits and time limitations.

Question a) Based on the stated provision regarding the call about the manner of handing out the applications (by registered mail or in person by the 20.07.2009), the application that was filed by regular mail or electronically without secure e-signature in the time limit and was received by the administrative agency the day after (e.g. 21.07.2009) is too late.

Provisions of the sectoral general acts (as is the call based on the adequate state of law) prevail over the provisions of the GAPA (Article 3 of the GAPA) which regulate procedure regarding the manner and due time of the application slightly differently (e.g. filling electronically or personally or by mail, considering the date of receiving according to the day of sending the shipment, if date of handing out is evident, etc.).

If the call based on the sectoral statute that is superior to the GAPA would not explicitly provide the manner of handing out then in this case provisions of Article 67 and Article 68 of the GAPA would apply, upon which the application send by the 20.07.2009 electronically would be incomplete because applicant's signature would be missing. Administrative agency would in this situation by the Article 67 of the GAPA call the party for the correction of deficiencies in a time limit and if the party would fulfil the obligations in time the application would be considered filed in due time. In the stated case the application is recognized in accordance with the Article 129, Paragraph 1, Item 3 of the GAPA and is rejected, unless if by the call’s conditions any special reasons exist for subsequent handing out.

Question b) When for handing out an application time limit exists (by the call) it is considered in accordance with Article 68 of the GAPA, that complete and in due time handed out applications are those which:

- Are sent and were received by the agency in writing and with the applicant's signature in due time or
- Are sent before the expiration of the time limit and were received by the agency until the time limit or after the time limit in writing (about filing applications in writing in due time see case) and with applicant's signature or
- Are handed out electronically and signed with secure electronic signature certified by a qualified certificate and in due date admitted into the information system of the agency.

If it is admissible to file the application by two or more ways every one of them is relevant and the application is considered handed out in due time and correctly filed as it meets one of the prescribed manner, although by the other manner rules would provide the expiry of the time limit or inadequacy of the manner. The provisions of call or sectoral regulations can also be different. Agency in accordance with the Article 129, Paragraph 1, Item 3 of the GAPA rejects the applications that did not arrive in accordance with above mentioned conditions or conditions stated in the tender documentation.

If the information system because of the better evidence keeping (or any other reason) demands from the user without qualified certificate an entry of data and confirmation to which should by call’s conditions follow sending of paper application with applicant's signature by post then the entry of data and confirmation without the application by post in due time is considered as late application. The same applies vice versa – if sectoral regulation demands simultaneous physical and electronic activity (in limited time) the party must respect that or else the application is rejected, although it was send physically in the time limit, but the »e-entry« was not (partially or not correctly) conducted.

To avoid an ambiguous positions with partial entry (from the experience in practice) the agency must in the future –henceforth the call - define more precisely what are the consequences if e.g. adequate written application is handed out in due time, but e-entry of the data is not conducted or it is conducted but not confirmed. By the current regulation marginal positions, when the application is handed out »by half« (unfortunately) cannot be regarded as handed out in due time and correctly submitted. E.g. above stated first manner of handing out the application (as entry and confirmation of data in the information system with further printing of the application and sending it by regular mail) is valid only if executed consistently and completely, because after the call the entry of data and confirmation applies as precondition and it is not only of informative nature and at the same time it formally counts as important physical application in the same time limit (by the 10.08) with marked date (e.g. registered) of handing out or acceptation.

If handing out the application is only partial according to prescribed manner it is counted as too late and not incomplete. Parties therefore by the current regulation cannot be helped with procedure by Article 67 of the GAPA and that kind of claims are rejected.

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