New rules for e-delivery – Polish and EU provisions
Publication date: November 30, 2023
e-Delivery – the most important information
e-Delivery is the electronic equivalent of a registered letter with acknowledgment of receipt. Thanks to this service, public entities, citizens, companies and public trust professions can benefit from convenient and safe electronic deliveries. They are legally equivalent to traditional registered mail with acknowledgment of receipt. The Polish Act on Electronic Deliveries (Act of November 18, 2020 on Electronic Deliveries (consolidated text: Journal of Laws of 2023, item 285, as amended)) provides for the introduction of a completely new system of contact between offices and their clients, as well as the possibility of exchanging electronic correspondence between private entities. E-Delivery is intended to eliminate the circulation of paper correspondence from the market, i.e. replace the current registered mail with return receipt or personal delivery. Instead, public authorities will contact entrepreneurs electronically, and when cannot be used, they will use a public hybrid service, i.e. sending paper letters using automatic letter printing and packaging systems by Poczta Polska (Polish Post). As a consequence, the exchange of correspondence as part of the new services will allow official matters to be handled electronically, in a way that ensures effectiveness, mutual identification, shortened implementation time, as well as communication security. At the same time, traditional delivery by registered mail will be eliminated by modern delivery methods.
Based on the schedule for introducing the obligation to use the National Electronic Delivery System, it can be concluded that this deadline varies depending on the entity. First of all, entities that are obliged to use e-delivery from December 30, 2023 should be taken into account. These include entities such as: government administration bodies and budgetary units serving these bodies – they are defined in Art. 155 section 1 of the Act on electronic deliveries. Then, pursuant to Art. 155 section 2 of the said Act, other public authorities were taken into account, including state control and law protection bodies and budgetary units supporting these bodies. Art. 155 section 3 of the quoted Act includes ZUS (Polish Social Insurance Institution), KRUS (Agricultural Social Insurance Fund) and funds managed by the president of the Agricultural Social Insurance Fund. Next, art. 155 section 4 and section 5 of this Act lists the National Health Fund and executive agencies, budgetary management institutions, state earmarked funds, independent public health care facilities, public universities, the Polish Academy of Sciences and its organizational units, state and local government cultural institutions, other state or local government legal entities established pursuant to separate acts in order to perform public tasks. The last ones included in Art. 155 section 6 of the Act are local government units and their associations, as well as metropolitan associations and local government budgetary entities – in the scope of the public service of registered electronic delivery. However, from January 1, 2025, entities defined as other public entities are obliged to use e-delivery.
When an entrepreneur must have e-Delivery box – this also applies to entrepreneurs with international shareholding structure
The deadline for implementing e-Delivery depends on the date of registration of the company in CEIDG (Central Register and Information on Economic Activity) or KRS (National Court Register):
Companies that register their business on or after December 30, 2023 (National Court Register) and from January 1, 2024 (Central Register and Information on Economic Activity) will set up e-Delivery boxes when registering their companies (entities).
Companies that were established before these dates must submit an application to set up an e-Delivery box by a specific date: companies from the National court Register – by March 30, 2024, companies from the Central Register and Information on Economic Activity – by September 30, 2026.
From October 1, 2029, entities such as: courts, tribunals, bailiffs, prosecutor’s offices, law enforcement agencies and the Prison Service, as well as local government units and their associations, as well as metropolitan associations and local government budgetary entities – in the scope of public services, are obliged to use e-delivery in hybrid manner.
As for non-public entities, from December 30, 2023, e-delivery must be used by persons of public trust such as: attorneys, legal advisors, tax advisors, restructuring advisors, patent attorneys and notaries. Non-public entities are also included here, e.g. entrepreneurs running a company or foundations and associations entered into the National Court Register after December 30, 2023. As for non-public entities entered in the National Court Register before December 30, 2023, the deadline is March 30, 2024.
Due to the above, the obligation to use e-delivery applies to public entities specified in Art. 155 of the Act on electronic deliveries, non-public entities –
– persons performing a profession of public trust,
– an entrepreneur registered in Central Register and Information on Economic Activity,
– a general partnership,
– a limited partnership,
– a limited joint-stock partnership,
– a professional partnership,
– a limited liability company,
– a joint-stock company,
– a simple joint-stock company,
– a European company,
– a cooperative,
– European cooperative,
– professional self-government of economic entities,
– mutual reinsurance company,
– mutual insurance company,
– European economic interest grouping,
– main branch of a foreign reinsurance company,
– main branch of a foreign insurance company,
– other legal persons conducting business activity, entered in the register of entrepreneurs,
– branch of a foreign entrepreneur.
As for citizens, they have the opportunity to use e-delivery, but there is no such obligation as in the case of the entities mentioned above.
It is important to raise the issue of fees related to sending documents via e-delivery. The rule is that free correspondence occurs when the sender is a citizen and the addressee is a public entity, between public entities and when the public entity sends documents to citizens, companies and other public institutions. Citizens and companies will bear the costs of correspondence if a public entity does not participate in it, e.g. between companies or between a company and a natural person.
Moreover, due to the introduction of e-delivery, the user will be obliged to operate an electronic delivery box. The user entered in the National Court Register appoints the administrator of the box, while the user entered in Central Register and Information on Economic Activity may manage the box himself or appoint an administrator for this purpose. The e-Delivery service provider is obliged to notify recipients about the readiness of the shipment for collection. The user should be informed by e-mail about correspondence waiting in the mailbox; such information will be sent only once when the correspondence arrives in the mailbox. At the moment of notification of the shipment, the 14-day period for receipt of the letter begins. Receiving an electronic document is understood as any action of the addressee who has an address for electronic delivery, resulting in the addressee having access to the document received at this address and being able to read the content of the received document. The legislator decided not to confirm receipt of the shipment with a qualified signature. However, in the event of failure to collect the letter within 14 days, fictitious delivery was provided. The correspondence will be considered delivered automatically after the notification deadline.
e-Delivery and Regulation No. 910/2014 of the European Parliament and of the Council.
The issue of e-delivery at the European Union level is regulated in Regulation (EU) No 910/2014 of the European Parliament and of the Council of 14 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/ 93/EC (eIDAS Regulation). As indicated in the Act, the objectives of the Regulation are to increase trust in electronic transactions in the internal market by providing a common basis for secure electronic interaction between citizens, businesses and public authorities, which will increase the efficiency of public and private online services, e-business and e-commerce in the Union, ensuring secure electronic identification and authentication for access to cross-border online services offered by Member States and removing, at least for public services, existing barriers to the cross-border use of electronic identification means used in Member States for authentication purposes. This Regulation strengthens and extends the achievements of Directive 1999/93/EC of the European Parliament and of the Council, which concerned electronic signatures. At the same time, this Regulation is applied in full compliance with the rules on the protection of personal data provided for in Directive 95/46/EC of the European Parliament and of the Council.
The Act in question determines the conditions for the recognition by Member States of electronic identification means of natural and legal persons covered by a notified electronic identification system of another Member State, lays down provisions on trust services, in particular electronic transactions, and establishes a legal framework for electronic signatures, electronic seals, electronic time stamps, electronic documents, electronic registered delivery services and website authentication certification services. This Regulation applies to electronic identification systems that have been notified by a Member State and to trust service providers established in the Union. It contains a reference to the provisions of Directive 95/46/EC on the processing of personal data. It lists the conditions for notification of the electronic identification system and distinguishes the security levels of electronic identification systems. The issues of notification, security breaches and liability for damage caused as part of a transgenic transaction were also discussed. It also sets out the interoperability framework. It introduces the obligation for Member States to establish sanctions in the event of violations of the Regulation and the creation of a supervisory authority. It contains security requirements applicable to trust service providers and specifies the legal effect of an electronic signature equivalent to a handwritten signature. The Regulation contains requirements for advanced electronic signatures and regulations related to qualified certificates of electronic signatures as well as specifies the legal implications of electronic seals and requirements for advanced electronic seals. The Regulation also regulates legal issues related to electronic time stamps and the legal effects of electronic registered delivery services and the requirements for qualified website authentication certificates while referring to the legal effects of an electronic document.
e-Delivery and Polish law
Important issues related to e-Deliveries are also regulated in the Act of November 18, 2020 on electronic deliveries. As stipulated in Art. 1, the Act specifies: the principles of delivering correspondence using the public electronic registered delivery service and the public hybrid service, the principles and conditions for the provision of the public electronic registered delivery service and the public hybrid service, and the principles of using the qualified electronic registered delivery service to exchange correspondence with public entities. It should also be noted that the legislator has defined situations when the Act does not apply. Pursuant to Art. 3 of the Act, the provisions of the Act shall not apply in cases such as: delivery of correspondence containing classified information, in public procurement proceedings and in competitions conducted on the basis of the Public Procurement Law, in proceedings for the conclusion of a concession contract conducted on the basis of the Act on concession contracts for construction works or services if separate regulations provide for submitting or delivering correspondence using electronic technical and organizational solutions other than the delivery address, in particular to accounts in ICT systems supporting court proceedings or to document repositories and in the case of exchanging data with ICT systems via network services. Article 4 of the Act best reflects what e-delivery actually is. Namely, a public entity delivers correspondence requiring confirmation of its posting or receipt using the public electronic registered delivery service to the electronic delivery address entered in the electronic address database. The Act also includes the conditions for delivering correspondence using a public hybrid service. This is regulated in Art. 5, which distinguishes two cases when it applies – the inability to deliver correspondence to an electronic delivery address and when he has knowledge that a natural person with an electronic delivery address has been deprived of liberty. Article 6 refers to statutory exclusions from the application of the provisions on the address for electronic delivery and the use of a public hybrid service. Pursuant to this provision of Art. 4 and art. 5 does not apply in situations such as when: the entity requests delivery of the original of a document originally prepared in paper form, correspondence cannot be delivered to an address for electronic delivery or using a public hybrid service for the reasons specified in the Act, and separate provisions provide for the possibility of delivery using methods other than the public electronic registered delivery service or the public hybrid service, in particular with the help of its employees, and the sender considers another method of delivery to be more efficient in specific circumstances. Article 7 refers to the legal effect of entering an address for electronic delivery in the electronic address database. Based on this article, it can be concluded that such an entry is tantamount to a request for correspondence to be delivered by public entities to this address. Article 8 obliges a public entity to have an address for electronic delivery entered in the database of electronic addresses linked to the public service of registered electronic delivery. Article 9 lists other entities obliged to have an address for electronic delivery entered into the electronic address database. Article 10 gives powers to entities not included in Art. 9 to have an address for electronic delivery entered into the electronic address database. Chapter 2 of this Act regulates issues related to the address for service and delivery boxes. Among other things, it refers to the method of creating an address for electronic delivery related to the public service of registered electronic delivery and assigning a delivery box to it, and provides formal requirements for an application submitted to create an address for electronic delivery for public and non-public entities.
Sources:
- https://www.gov.pl/web/e-doreczenia;
- REGULATION (EU) 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;
- Act of November 18, 2020 on electronic deliveries;
- https://www.gov.pl/web/e-doreczenia/harmonogram;
- https://samorzad.pap.pl/kategoria/e-urzad/e-doreczenia-w-pytaniach-i-odpowiedziach;
- https://www.biznes.gov.pl/pl/portal/004495#2.
