Question:

The administrative agency receives a claim as a request or an application by fax or by electronic means without including a secure electronic signature (signed application is scanned and sent by e-mail), as it is understood by the provisions of a sectoral law. Should the administrative agency abide by the provisions of the sectoral law concerning the admission of the application or does it infringe Article 63, paragraph 7 of General Administrative Procedure Act?

Answer:

The conditions for receiving applications electronically are provided by Article 63 of the General Administrative Procedure Act (GAPA). Applications in electronic form are submitted by sending them by electronic means to the informational system of the administrative agency or to a uniform information system of the state administration, which has been set up for the reception, delivery, and providing information of the administrative procedure (Article 63, paragraph 4 of GAPA). To prevent abuse and ensuring reliable verification of the applicant's identity, the Act provides the obligation that the application be signed with a secure electronic signature with a qualified digital certificate. Detailed questions relating to the filing of applications by electronic means and in respect to the operation of an information system for the reception, delivery, and notification of the applications are regulated, due to its implementation-technical nature, by an implementing regulation, the Decree on Administrative Operations (DAO) (Androjna and Kerševan, Upravno procesno pravo, 2006, p. 200). DAO states in Article 107, paragraph 2 that when in doubt regarding the authenticity of the application the administrative agency may require authentication of applications using a certified signature or a secure electronic signature. Therefore when the administrative agency is in doubt whether the application was deposited by the person listed as the applicant, the authority may require, under Article 67, paragraph 3 of the GAPA, that the client validates such an application with a written confirmation.
If sectoral legislation is used with the specific administrative procedure, the administrative agency acts primarily under the provisions of the law governing the process (in part) differently than the GAPA. On procedural issues which are not regulated by the sectoral law, the complementary or subsidiary rules of the GAPA are to be used (Article 3 of GAPA, Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, p. 18).
In this case, a sectoral law includes specific provisions governing the method of accepting applications which allows filing applications by fax and electronic means. It also stipulates how the administrative agency shall act if the application is illegible and/or cannot be reproduced, but does not explicitly mandate the conduct of the administrative agency if the application does not show a genuine signature of the party (fax) or if an e-mail application is not signed using a secure electronic signature.
Therefore, in case of doubt of the identity of the applicant, the administrative agency shall follow Article 67, paragraph 3 of GAPA, and invite the applicant to confirm the application with a written confirmation.
According to the principle of protecting the clients' rights and public benefits (Article 7 of the GAPA), we believe that in applications which constitute the exercise of the rights of parties during further procedure, the provisions or the intent of the sectoral law could be considered at a different and lower level of identity verification of the applicant (and with it the concept of public interest arising from applicable regulations), as so special to supersede GAPA. This means that an application submitted by e-mail without using a secure e-signature should be considered as formally complete and adequate, if no other circumstances imply doubt over the identity of the applicant. It would be wise to amend the sectoral law in the future, so that its provisions are clear in this regard.

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