Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 76
Enero
Marzo
2023
Recibido el 31/11/22 Aceptado el 15/01/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
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ORTILLO
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Asis ten tes Ad mi nis tra ti vos
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Vol. 41, Nº 76 (2023), 76-99
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Notarial practice of will declaration in
civil transactions in the countries of the
European Union
DOI: https://doi.org/10.46398/cuestpol.4176.04
Oksana Khorosheniuk *
Viktor Savchenko **
Oleh Andrukhiv ***
Anatoliy Babichev ****
Valerii Bortniak *****
Abstract
The aim of the article was to consider the peculiarities
of the notarial practice of declaring will in civil transactions
in the countries of the European Union EU, in view of the
further adaptation of positive practices in Ukraine. The main
methodological tools used in the research were the methods of
observation and comparison. The conducted research showed that the
European Regulation regulating the matter established the legal basis for
the use of electronic trust services in notarial practice. The use of qualied
electronic signatures and seals, electronic time stamps and authentication
in this area gives condence in a higher level of document security. The
use of electronic ID and electronic trust services also simplies time-
consuming formalities in notarial practice. It was found that integrated
video conferencing systems, business process workows and electronic legal
signature systems are becoming mandatory components of the digitization
of notarial practice. Gaya, a European program for electronic identication,
can be an example for the implementation of conditions for the current
notarial practice of declaration of will in civil transactions in Ukraine.
Keywords: qualied signature; digital administration; cryptographic
key; digital power of attorney; civil transactions in the EU.
* Department of Law, Khmelnytskyi Cooperative Trade and Economic Institute, 29016, Khmelnytskyi,
Ukraine. ORCID ID: https://orcid.org/0000-0001-6682-1299
** Ph.D in Law, Associate Professor at the Department of Civil Law, V. N. Karazin Kharkiv National
University, 61022, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-7104-3559
*** Doctor of Law Sciences, Professor, Department of Law and Public Administration King Danylo
University, 76018, Ivano-Frankivsk, Ukraine. ORCID ID: https://orcid.org/0000-0003-4871-0143
**** PhD of Public Administration, Vice-rector, Associate professor of the department of management and
administration Karazin Business School, V.N.Karazin Kharkiv National University, 61204, Kharkiv,
Ukraine. ORCID ID: https://orcid.org/0000-0002-7587-4824
***** PhD of Law Sciences, Associate Professor, Rector, V.I.Vernadsky Taurida National University, 01042,
Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-1285-966X
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 76-99
Práctica notarial de declaración de testamento en
transacciones civiles de los países de la Unión Europea
Resumen
El objetivo del artículo fue considerar las peculiaridades de la práctica
notarial de declarar voluntad en las transacciones civiles de los países de la
Unión Europea UE, en vista de la mayor adaptación de las prácticas positivas
en Ucrania. Las principales herramientas metodológicas empleadas en
la investigación fueron los métodos de observación y comparación. La
investigación realizada mostró que el Reglamento europeo que regula la
materia estableció la base legal para el uso de servicios electrónicos de
conanza en la práctica notarial. El uso de rmas y sellos electrónicos
calicados, sellos de tiempo electrónicos y autenticación en esta área da
conanza en un mayor nivel de seguridad de los documentos. El uso de
la identicación electrónica ID y los servicios electrónicos de conanza
también simplican los largos trámites formales en la práctica notarial.
Se descubrió que los sistemas de videoconferencia integrados, los ujos de
trabajo de procesos comerciales y los sistemas de rma electrónica legal se
están convirtiendo en componentes obligatorios de la digitalización de la
práctica notarial. Gaya, programa europeo para la identicación electrónica,
puede ser un ejemplo para la implementación de las condiciones para la
práctica notarial actual de declaración de voluntad en transacciones civiles
en Ucrania.
Palabras clave: rma calicada; administración digital; clave
criptográca; poder notarial digital; transacciones
civiles en la UE.
Introduction
The expression of will of every person is recognized as one of the
important rights. The protection of self-expression is essential both from
an international and a national perspective (Kudeikina and Palkova,
2020). The world community is increasingly engaging into numerous
investment projects, and experiences migration processes. Family ties and
other circumstances aect the denition of a notary as a necessary tool for
documenting acts in the legal international circulation (Samsin et al., 2021).
Any legal agreement is a form of expression of the free initiative of the
parties to enter into civil law relations. It reects the freedom of the parties
to determine the type of legal agreement they will enter into and the content
of such a transaction (Živkovska and Pržeska, 2018). A legal agreement in
the European civil law tradition is an important tool. It helps the subjects of
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Oksana Khorosheniuk, Viktor Savchenko, Oleh Andrukhiv, Anatoliy Babichev y Valerii Bortniak
Notarial practice of will declaration in civil transactions in the countries of the European Union
law to intentionally change their legal position or that of other persons. An
authentic legal agreement is supposed to mean written evidence, form and
drafting procedure. Their sanctioning is regulated by law through a special
ocial empowered to draft them (Widyantoro et al., 2022).
Civil law notarial services include signature certication and execution
of documents, inheritance and testamentary procedures. They can also
include residential and commercial agreements, business and marriage
contracts, divorce, conclusion of other contracts, powers of attorney, etc.
Notaries public present the agreement impartially, taking responsibility for
its content, proving its authenticity and giving it civil law evidentiary value.
The agreement must be provided with legal certainty by concluding it with a
civil-law notary. The notary works with civil law agreements, where the use
of traditional signatures and seals on paper is mandatory for most countries.
A written certicate in the form of a genuine deed executed by a notary has
undeniable evidentiary value both in form and substance (Junyu, 2020).
Global crises caused by COVID-19 and military conicts, among other
things, have aected almost all industries in European countries, including
the notarial practice. The procedure for notarial acts had to be adapted to
the latest socio-political conditions. The requirement of physical presence
at the notary created a direct barrier to the expression of will in view of the
travel restrictions (Biemans, 2021). The European countries had to urgently
search for a reliable solution for secure remote carrying out of transactions.
As a result, the COVID-19 pandemic has pushed countries to expand the
use of electronic identication (Pöhn et al., 2021).
The introduction of ICTs, such as the remote certication of agreements,
the use of programming languages into the notarial practice became a
logical innovation that meets the current needs of society (Lila-Barska,
2021). The electronic signature has begun to expand the potential available
to notaries when executing notarial documents, making it possible to sign
them virtually (Tabone, 2021). The use of a qualied electronic signature
as the most reliable method of electronic signature of documents was
the response to the current challenges in the EU countries (Schwalm and
Alamillo-Domingo, 2021).
In some countries, such as Ukraine, notarial acts required transformation
because of the introduction of martial law (Karmaza, 2022). This situation
made it necessary to simplify the documentary procedure for performing
notarial acts. It is a forced measure and must be accompanied by the
temporary introduction of certain changes to legislative acts.
In view of the foregoing, the aim of the article is to review and identify
a successful adaptive notarial practice of declaring will in civil transactions
of the EU countries. The aim involved the following research objectives: 1)
summarize the main features of modern legislative regulation of the notarial
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 76-99
practice of declaring will in civil transactions of the EU countries; 2) reveal
the state of application of digital technologies in the notarial procedure of
declaring will in civil transactions in a number of EU countries with the aim
of possible implementation of relevant innovations to the legal regulation
of notarial practice of declaring will in civil transactions in Ukraine.
1. Literature review
The choice of the research topic correlates with the modern vectors of the
research conducted by the scholars in dierent states. The work of Tabone
(2021) was the main tool and background for this study. The study was
focused on the analysis of the implementation of electronic identication
and trust services for electronic transactions in the notarial practice of a
number of European countries. The work emphasized the fact that there are
advantages and obstacles to the introduction of electronic signatures when
performing notarial acts in the analysed countries.
The result of the work was also the analysis of notarial documents
that can be signed electronically. The work of Jia and Li (2022) had an
inuence on the author’s position on the topic under research as well.
The authors conducted a comprehensive analysis of electronic signature
technology. Attention was paid to problematic issues that arise during
the intensied use of electronic seals and the achievement of the goal of
copyright protection on digital media. Attention was also focused on the
fact that improved electronic signature technology can increase the security
of signing electronic contracts.
The ndings of Determann (2021) as a result of comparing the advantages
and disadvantages of electronic signatures and documents were taken into
account during the study. The main approaches to legislation and their
potential impact on public and individual interests were the main focus
in the work. Attention was paid to the description and comparison of the
current legislation on electronic signatures in key jurisdictions of dierent
countries, to the study of the consequences of international dierences.
Special attention should be paid to the ndings of Biemans (2021) on the
possibility of remote authentication.
The issues of the justication and proportionality of the requirement of
physical presence when drawing up wills at notaries and the impact of this
necessity on the restriction of freedom of services were raised. The article
by Pöhn et al. (2021) on the introduction of self-sovereign identity (SSI),
which can strengthen the privacy of citizens and provide the necessary
identication, is worthy of note. In turn, Schwalm and Alamillo-Domingo
(2021) examine the revised eIDAS Regulation in their article. It is concluded
that the further success of eIDAS depends on the development of common
solutions, standardization will be key to ensure consistency at the EU level.
80
Oksana Khorosheniuk, Viktor Savchenko, Oleh Andrukhiv, Anatoliy Babichev y Valerii Bortniak
Notarial practice of will declaration in civil transactions in the countries of the European Union
The studies by Apalkova (2021) and Lila-Barska (2021) used in the
article emphasize the role of the introduction of digital technologies in the
notary system of Ukraine. The authors focused on the need for the gradual
introduction of new forms and technologies into notarial activity in order
to guarantee comprehensive assistance to participants in civil law relations.
Certain problematic aspects of the procedure for the introduction and
functioning of electronic notarial services in Ukraine were outlined.
The study by Humaira and Latumeten (2022) was used in shaping
the author’s position. It emphasizes the legal expediency of the adopted
legislative acts in the Netherlands and Belgium regarding the performance
of notarial acts during the COVID-19 pandemic. The authors made a
detailed analysis of the possibility of making a notarial act without physical
presence or doing it virtually. The introduction of notarial digital power of
attorney was also analysed.
The research of Karmaza (2022) analysed the features of the protection
of the rights and freedoms of citizens in the civil process (notarial process)
during the martial law. The author outlined such relevant vectors as
objectivity, subjectivity, implementation in practice. The need to improve
legislative norms, in particular, to expand the procedural capabilities of
notaries with the help of legal norms during the martial law, was noted.
An active study of the issues selected in the article conrms the need
to pay special attention to the notarial practice of declaring will in civil
transactions. The diversity of studies in this eld is also stated. Therefore, it
is urgent to conduct research according to new research criteria, taking into
account the latest comparative law studies.
2. Methods
The research results were obtained through the use of a set of practical
and methodological tools applied at each stage of the research. The research
design is shown in Figure 1.
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 76-99
Figure 1. Research design. Source: own elaboration.
The research objectives were fullled through the use of well-chosen
methodological tools. Observation and comparison were the main
practical methods. The observation method was applied to determine the
state, directions and prospects of further research, as well as legislative
developments in the eld of legal regulation of digitalization of notarial
practice in the European Union. The comparative method also occupied a
special place, which was used in the course of the comparative analysis of
current national legal norms in the eld of notarial practice of declaring will
in civil transactions in the EU member states.
The indicated practical methodological tools enabled to qualitatively
compare practical realities with the legislation systems and scientic
developments of the EU member states, as well as to identify positive
legislative practices, which are appropriate for adoption in Ukraine.
The method of theoretical generalization was used to identify the features
of the theoretical foundations of the strategic implementation of electronic
declaration of will in the notarial practice, and even for a comprehensive
description of the transformational processes of the notarial system and its
digitalization in the European countries; abstract logical — to substantiate
the foundations of the system of legal regulation of notarial services, as
well as to analyse conceptual and methodological approaches of strategic
management of the development of such services; statistical, graphic
analysis, grouping — to assess the state and results of the introduction
of innovative information technologies in the eld of notarial services,
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Oksana Khorosheniuk, Viktor Savchenko, Oleh Andrukhiv, Anatoliy Babichev y Valerii Bortniak
Notarial practice of will declaration in civil transactions in the countries of the European Union
to assess the characteristics of the innovative development of certifying
transactions.
Analysis, synthesis, deduction, induction — to substantiate conceptual
provisions and improve the mechanism of implementation of notarial
electronic services; economic and statistical methods — for statistical
analysis of the development of notarial electronic services, the stages
of the introduction of innovations and their eectiveness; methods of
expert evaluation — to assess the degree of achievement of balanced
development of notarial electronic digital services in the context of modern
transformations; structural logical analysis — to justify methodological
approaches regarding transformation models in the era of digitization of
notarial services and social realities.
The historical method was applied when studying the genesis of the
development of legislation, which regulates the foundations of eective
implementation of notarial electronic services. The doctrinal approach
enabled identifying gaps in the current national legislation in the area
under research in the EU countries. The dogmatic method was applied for
drawing conclusions in accordance with the aim of the study.
The method of analogy made it possible to draw a conclusion about
the need to reform the Ukrainian legal eld and to emphasize promising
novelties of EU legislation with due regard to the experience of the EU
member states. Normative semantic technique, logical methods and the
method of legal modelling were used when formulating proposals of a
legislative nature.
3. Results
The European Regulation — eIDAS — (European Parliament, 2014)
considers variable tools for conducting electronic transactions (Figure 2).
Figure 2. The main grounds for electronic identication according to Regulation
(EU) No. 910/2014.
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Vol. 41 Nº 76 (2023): 76-99
At the same time, the relevant requirements increasingly included a
qualied component. The eIDAS Regulation is directly applicable in all EU
member states without the need for implementation at the national level.
For example, the panorama of electronic signatures is extremely diverse.
The eIDAS Regulation identies three main types of electronic signature
(Figure 3).
Figure 3. Types of electronic signature according to Regulation (EU) No.
910/2014
A simple electronic signature is considered the weakest type of
signature in the IT sphere, as it does not require the use of means capable
of guaranteeing the authenticity and integrity of the signed document.
The evidentiary value of a document with a simple electronic signature
can only be determined by a judge. Examples of SES can be an ATM PIN,
scanned signature from paper in an e-mail, a mailbox username/password
combination, etc.
Advanced electronic signature (AES) can be dened as a process, a
private agreement between the parties. The person who signed can be clearly
identied after signing. It guarantees the invariability of the document, the
legal force and the possibility of remote signing. Unlike QES, AES does not
guarantee the transfer of the burden of proof. Besides, the identication
of the signer must be conrmed by AES supplier or delegate to make AES
valid.
Qualied electronic signature (QES) is the most reliable type of signature
from a legal perspective. It is the result of IT procedure that guarantees the
authenticity and integrity, as well as the transfer of the burden of proof (by
the applicant). Qualied electronic signature is based on a certicate issued
by a qualied trust services provider (QTSP). It is created with a safe device
such as token, smart card, and has double authentication.
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Oksana Khorosheniuk, Viktor Savchenko, Oleh Andrukhiv, Anatoliy Babichev y Valerii Bortniak
Notarial practice of will declaration in civil transactions in the countries of the European Union
The eIDAS Regulation guarantees that people and businesses can use
their own national electronic identication schemes (EID) to access public
services available online in other EU countries. The Regulations (European
Parliament, 2014) also contributes to the creation of a European domestic
market for trust services. This guarantees that they will work across borders
and have the same legal status as their traditional paper equivalents. On June
3, 2021, the European Commission adopted a proposal for amendments to
the eIDAS Regulation (European Parliament, 2021).
It proposes a digital identication framework with European digital
identication wallets. This provides safe and easy access to dierent services,
both public and private. The wallet maintains privacy by its design, enabling
users to fully control personal data, including attributes of persons that can
be disclosed through a wallet. Besides, the wallet should be certied with
high security. The National Court or the EU Court of Justice cannot reject
the signature (or document) on the grounds that it is electronic. However,
the court should still check the formalities of execution in accordance with
the EU legislation or national legislation regarding a specic document.
The formalities of execution may mean that certain documents (wills) are
not subject to electronic execution in some EU legal systems.
Electronic seal means electronic data that is bound with other electronic
data to ensure their origin and integrity. Advanced electronic seal is uniquely
related to the seal creator capable of identifying the seal creator. It is bound
to the data to which it relates, so that any change of data can be detected. A
qualied electronic seal (QES) means an improved electronic seal created
using a device to create a qualied electronic seal. It is based on a qualied
certicate for electronic seal. Electronic time stamp (eTimestamp) bounds
an electronic document to a certain time, providing evidence that the
document existed at that time.
Website authentication certicates (WAC) are electronic certicates
that prove that the website is trustful and reliable. They guarantee that the
website is related to the person to whom the certicate is issued. They also
help to avoid data phishing. Delivery digital data exchange service enables
the user to send the data electronically. It provides conrmation of the
departure and delivery of the document and protects against the risk of
loss, theft, damage or unauthorized change.
Identication of subjects is necessary for real estate contracts, easement
agreements or lease agreements with a duration of more than nine years,
etc. It is regulated by qualied services supplier, such as Gaya (Gayadeed,
2022). This is an application that helps companies and professionals
to safely sign agreements from anywhere in the world. This is provided
through the built-in video conferencing system, work processes and
legally enshrined electronic signature systems. Gaya was selected in the
rst open eSSIF-LAB project, which is funded by the EU. It is aimed at
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Vol. 41 Nº 76 (2023): 76-99
widespread implementation of self-sovereign identity (SSI) as a next-
generation solution of digital identication. This leads to faster and more
secure electronic transactions on the Internet and in real life. The use of
this programme can help reduce the time and cost of an environmentally
friendly way using only a personal computer and a mobile phone.
Built-in video conferencing system contributes to a full privacy
and prevents personal data leakage. An important legal aspect is Gaya
compatibility with electronic identication, authentication and signature
governed by eIDAS. The result is the legal force of agreements signed with
this platform.
Notaries play an important role in the Member States of the European
Union because of their tasks and responsibilities, where the legal order
is based on Latin civil law. Ireland is the only jurisdiction of EU common
law. The notaries are to draw up private agreements and counsel the
parties. When drawing up ocial documents, the notary is responsible
for the legality of these documents and for appropriate advice. The task
includes informing the parties about the meaning and consequences of
the obligations they take on to ensure compliance with the notary acts.
The Council of the Notariats of the European Union (CNUE) is the main
European organization, which represents 22 national notarial chambers
and more than 45,000 notaries (CNUE, 2021).
CNUE and its member notaries already have considerable experience in
the eld of electronic communications. This applies to the national level,
where electronic communications are common, as well as to the cross-
border context through dierent CNUE IT projects. The EU Member States
are actively introducing communication systems between notaries, public
administration departments and clients through electronic channels.
CNUE studies the potential impact of citizens’ and enterprises’ digital
wallets that bound their national digital identication on the work of
notaries. CNUE also considers it necessary to be extremely vigilant in terms
of application and exceptions. The Council of the Notariats of the European
Union ensures that the eIDAS regulation does not touch the formal national
requirements for legal acts.
One of the rst advantages of introducing a remote digital signature
at a notary for certain documents is the possibility of doing business with
clients in dicult situations. Another important advantage is speeding up
the signing process when the parties are far from each other. In general, the
improved remote digital signature provides a better customer experience by
simplifying restrictive administrative procedures. The digital signature also
makes the daily life of notaries much easier, enabling them to focus more
on their core activity. For example, France has enshrined the permission to
sign certied documents electronically in law since 2000. Certain notarial
86
Oksana Khorosheniuk, Viktor Savchenko, Oleh Andrukhiv, Anatoliy Babichev y Valerii Bortniak
Notarial practice of will declaration in civil transactions in the countries of the European Union
documents can be signed digitally and remotely, provided that the digital
signature is certied in accordance with eIDAS.
In addition to eIDAS, the Civil Code of France is the main legal
instrument governing electronic signatures in France. This also applies to
the assessment and certication of IT products, devices and systems used
to create electronic signatures. According to French law, only QES has the
presumption of reliability. This means that an electronic signature shall be
considered reliable unless the party contesting the signature proves that the
signature is not reliable. Unqualied electronic signatures (SES and AES)
remain admissible in court if the party which tries to enter the signature can
prove that the signature is reliable.
A signature is considered reliable if it clearly identies the person who
created it. It is also necessary to store it appropriately to ensure integrity.
A reliable signer identication process meets the said conditions. The
Civil Code of France provides that an electronic document has the same
evidentiary value as a paper document, given that the reliability conditions
are met. The use of electronic signatures in electronic contracts in France
is growing, especially in the eld of electronic commerce. The National
Cybersecurity Agency of France (ANSSI) issues qualied certicates for
electronic signatures in France.
Certicate-based digital signatures, such as Qualied Electronic
Signatures (QES), are mainly reserved for certain regulated activities, such
as notarial services, where the evidentiary value of the signature is of great
importance. Remote digital signing at a notary applies to fee agreements,
powers of attorney, preliminary sales contracts, private aairs and nancial
accounts. French law does not single out any documents or agreements that
cannot be signed or executed electronically. It may, however, be necessary
to sign a number of documents by a wet signature.
These include documents that create or transfer rights to immovable
property related to family and inheritance law (for example, marriage
certicates, wills, deeds, etc.). They can also include documents related to
personal and real guarantees. The cases where documents are provided by
persons acting for trade, business or professional purposes are exceptions.
France uses the central portal — service-public.fr — to access more
than 900 services for electronic identication purposes. The single sign-on
(SSO) solution is called FranceConnect and is used by OpenID Connect.
Documentation, as well as several repositories are available online.
FranceConnect enables users to connect from existing veried accounts,
such as LaPoste or Mobile Connect, to these services. The digitization
of notarial services does not have universal support in France: 72% of
surveyed notaries believe that these innovations pose a certain threat to
their activity (PriceHubble, 2021). They concern, among other things,
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about the lack of familiarity, popularization of skills, standardization, fear
of loss of monopoly, simplication of the notary’s role, and replacement of
notarial skills by other professions.
The eIDAS Regulation was implemented in Italy as Legislative Decree no.
82/2005, also known as the Digital Administration Code (DAC) (Consuleze
Intermediazioni & Partecipazioni, 2005). Italy has ocially announced two
eID schemes: Carta d’Identità Elettronica (CIE) and Sistema Pubblico di
Identità Digitale (SPID). Both options are available in the public sector.
Authentication is possible through a username and password, as well as
multiple options for one-time passwords, smart cards, or hardware security
modules.
An electronic document (including a contract) signed by means of SES,
AES and QES complies with the written form requirement, and acquires
full evidential force. SES can be used for any other documents. The SES
ability to meet the written form requirement and its evidentiary value may
be assessed by a judge during the trial in terms of its security, integrity
and inviolability. DAC (Consuleze Intermediazioni & Partecipazioni,
2005) also provides a denition of digital signature (DS). This is a special
type of qualied electronic signature, which is based on a system of two
cryptographic keys (public and private).
DS enables the signer with the private key and the recipient with the
public key to conrm and verify the origin and integrity of the electronic
document. The electronic signature authentication involves certifying by
a notary that the signature was made in front of a notary. A necessary
condition is a preliminary assessment of the signer identity, the validity
of the used electronic certicate (if available) and the fact that the signed
document does not contradict the law.
A number of acts in Italy must be performed by a notary in the presence
of all parties otherwise they would be null and void. Law no. 110/2010 was
an attempt to partially solve the problem of physical presence by creating
an electronic public act (atto pubblico informatico) (Normattiva the Portal
of Current Law, 2010). An electronic public act enables creating a document
that can be signed with a digital signature (DS).
Completed electronic public documents have the same legal force
as documents signed on paper. For example, documents related to
extraordinary corporate agreements (mergers and acquisitions, transfers of
existing enterprises) can be issued as an electronic public act. Notarial law
requires the notary to physically see and appear in front of the party using
the DS. In this case, the notarial authentication services can be provided
in dierent places (with dierent notaries) to limit the need for movement
and crowding of people. From a practical perspective, this means that an
electronic public act can be signed using DS in front of a notary public at
Location 1.
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It must then be sent (by email) to Location 2, where the other party can
further sign it using DS. In this case, the second notary public completes the
case. Some notarial documents are still signed with wet ink. They are sent
to state administration departments electronically after certication by a
notary public. In Italy, there were 280,532 notarial contracts, for example,
on the purchase and sale of real estate and any other exchange of property
and equipment for a fee in Q4 of 2021 (+0.5% compared to the previous
quarter and +14.4% annualized) (Istat, 2022). Such a number of contracts
indicates the need for further development of the procedure for electronic
recording of notarized agreements.
The current European trend is the widespread use of authentic digital
power of attorney. The electronic signature is used to sign not the notarial
act itself (for example, the purchase agreement or the founders’ agreement),
but the authentic power of attorney. This document is used by the involved
party to issue a notary power of attorney, for example, to a notary public, to
sign the actual act on their behalf.
The use of an authentic power of attorney remotely is a new and great
leap in the digitization of the notarial services. For example, a relevant
initiative was enshrined in the legislation of Belgium, which contained
various provisions on justice in the context of combating the spread of the
COVID-19. The draft law amends the current Law on Notary of 16 March
1803 (JUSTEL, 1803) and provides for the possibility of issuing electronic
powers of attorney. Additional conditions shall apply when issuing such a
power of attorney remotely.
All parties involved must appear before the notary via video conference,
the parties must identify themselves and sign the power of attorney
electronically. Besides, issuing a digital power of attorney via video
conference is free of charge for the parties involved. In this case, the notary
signs the act with his/her electronic identity card. By the way, Belgium was
one of the rst countries to implement electronic identication (eID). At
rst, eID was originally based on an ID card, and later evolved into a federal
authentication service. A relevant private mobile solution is supported in
addition to the state eCard. It is bound with smartphones and SIM cards
using security features. The programme is available for iOS, Android and
Huawei. Belgium provides more than 800 services through its central
portal belgium.be.
Drafting a will by a notary requires personal contact between the notary
(and/or witnesses), on the one hand, and the testator, on the other. This
means that the will cannot be executed by proxy. In the Netherlands, the
physical presence requirement has been temporarily replaced with remote
notarization and/or remote testimony using audio-video technologies
(Overheid.nl, 2020). The notary must be able to establish the testator’s
identity and communicate with the testator using audio-video technical
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means. He/she must add to the notarial act that it is impossible for the
testator to sign the deed, and indicate the way the testator appeared before
him/her.
The notary must verify the testator’s legal capacity and must establish
that the will constitutes the testator’s nal wishes. The testator may lack of
mental capacity to declare the will, or the undue inuence of third parties
makes the notarized will objectionable or even invalid. This also means
that the testator must not be inuenced (coerced) by a third person in
the same room. This notarial act should be used only if any other options
are absolutely impossible. The Dutch law prescribes that a notary public
certifying notarial acts can only be a notary public appointed in the
Netherlands in accordance with the law of the Netherlands.
On October 01, 2021, the Portuguese Chamber of Notaries held a
seminar on future challenges of digital identication in notarial practice
and experiences of the Member States (CNUE, 2021). The notaries in 22
Member States learned about dierent experiences of digital identication
in Europe at this event. The European Notarial Network (ENN) held a
meeting in Paris on May 3, 2022. The ENN meeting was aimed at discussing
and nding solutions to the problems the European notaries face when
solving cross-border issues.
An important task of the meeting was to identify and implement actions
to support Ukrainian notaries and Ukrainians in need of legal support, such
as war refugees. CNUE and ENN are working to create a network of notaries
for Ukraine that can be mobilized to respond to specic requests. A number
of practical tools are also being developed. This includes bilingual forms to
help minors, the addition of “Ukraine” pages to CNUE information sites,
and frequently asked questions guide for notaries.
The current legislation of Ukraine provides that a legal transaction is
an act of a person with a purpose of acquiring, changing or terminating
civil rights and obligations. The Civil Code of Ukraine stipulates that a legal
transaction executed in writing shall be notarized only in cases established
by law or by agreement of the parties (Verkhovna Rada of Ukraine, 2003).
The legal transaction shall be notarized by a notary public or another ocial
who is entitled to perform the notarial act by law. Notarization involves
certication on a document containing the text of the legal transaction
(Verkhovna Rada of Ukraine, 1993).
Only the agreement that meets the general requirements established by
the legislation of Ukraine shall be notarized. The content of the agreement
shall not contradict the Civil Code (Verkhovna Rada of Ukraine, 2003),
other civil law acts and moral principles of society. The person who
commits the legal transaction must have the necessary civil capacity, and
the agreement itself must be executed in the form prescribed by law. The
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procedure established by law regulates the performance of notarial acts
using a qualied electronic signature, seal or other means of electronic
identication (Verkhovna Rada of Ukraine, 2017). Despite the mentioned
opportunities, the wide use of digital signatures in notarial services is
procedurally limited, because it is not allowed to perform a notarial act in
the absence of persons (Verkhovna Rada of Ukraine, 1993).
The introduction of the Diia signature (remote digital signature) makes
the use of an electronic signature much easier and more convenient in
Ukraine. The traditional process of obtaining an electronic signature involves
collecting the necessary documents. It is followed by the registration in
one of the certication centres, visiting the certication centre and, nally,
creating an electronic signature with the help of the centre’s employees.
This takes less than ten minutes on the user’s smartphone in Diia
application. Besides, Diia provides an e-signature generation service
and a convenient way to use it through a facial recognition instead of
conventional passwords when signing electronic documents. Validation
and authentication are mandatory. As of November 2021, the ease of
use of this service has resulted in 6 million generated signatures and
327,000 transactions with a 97% success rate (E-Governance Academy,
2021).
The Diia signature is used for public and private services, e-commerce,
banking and nancial services. The Diia signature can be used for government
services, online banking, and electronic document management services.
One part of the key is stored on the user’s phone, and the other — in a
special secure cloud storage.
In 2022, notaries who are on the ocial list approved by the Ministry
of Justice of Ukraine can perform registration acts in view of a full-scale
Russian invasion. The Notary Chamber of Ukraine (NCU) has created a
register of notaries of Ukraine who continue to work and provide services
in the wartime. The NPU was also involved in the creation of a chatbot to
search for notaries in Telegram.
During martial law and within one month from the date of its termination
or cancellation, notarial acts in Ukraine shall be performed with due
regard to the relevant features (Cabinet of ministers of Ukraine, 2022).
For example, during martial law, the term for accepting an inheritance
or refusing to accept is suspended. The range of authorized ocials who
can certify wills and powers of attorney, which are equivalent to notarized
documents, has also been expanded. Uncompleted notarial acts at the
request of a person related to the aggressor state are terminated. This
does not apply to particular cases regarding, for example, certication of a
testament of a prisoner of war.
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As of June 23, 2022, 34 (5%) state notary oces and 103 (2%) private
notary oces were damaged (National Council for the Recovery of Ukraine
from the Consequences of War, 2022). A total of 80 (12%) public notary
oces and 316 (6%) private notary oces are located in the temporarily
occupied territory. Accordingly, communication with them has been lost.
Notaries provide their services in Ukraine oine under these conditions,
archive les are stored on paper. A comparison of the number of certied
transactions (real estate contracts) for QII 2021 (Ministry of Justice of
Ukraine, 2021) and 2022 (Ministry of Justice of Ukraine, 2022) in Ukraine
shows that the number of certied transactions (real estate contracts)
decreased 6.5 times in the corresponding periods (Table 1).
Table 1. Analysis of indicators of notarized transactions in Ukraine for QII 2021
and QII 2022.
Item
No. Indicator
Total
transactions
(real estate
contracts)
certied by
public and
private notaries
for Q II 2021
Total
transactions
(real estate
contracts)
certied
by public
and private
notaries for
Q II 2022
1
Real estate alienation
agreements (except for
land plots, as well as land
shares
125,206 18,152
1.1 Sales contracts 85,388 10,681
1.2 Contracts of barter 744 61
1.3 Deeds of gift 31,865 5,997
1.4 Life care contract 485 174
1.5 Donation agreement 27 4
1.6 Rental contracts 8 0
1.7 Other real estate alienation
agreements 6,689 1,235
2
Land plot alienation
agreements (including
agricultural land plots), as
well as land shares
87,544 14,296
2.1 Sales contracts 70,388 11,060
2.2 Contracts of barter 1,419 37
2.3 Deeds of gift 15,574 3,155
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2.4 Other land plot alienation
agreements (including land
shares) 163 44
3Total notarised
transactions (real estate
contracts) 212,750 32,448
Source: own creation.
Despite current dicult situation, Ukraine directs its eorts to the
implementation of innovative solutions, in particular in the eld of notarial
services. This will help the country move to a digital economy, which
correlates with the choice of most EU countries. Ukraine has started the
introduction of the electronic notary — Nota. The rst stage of the project
is the creation of notarial documents with a QR code, which can be veried
through the QR scanner in Diia application. Notaries can use the QR code to
create the following documents: a power of attorney, a car rental agreement,
a signature authenticity statement. Only those notaries who have access to
the Unied State E-Notary System can create a document with a QR code.
The draft Ukraine’s Recovery Plan (National Council for the Recovery
of Ukraine from the Consequences of War, 2022) provides a special place
to the development of the notarial services, which is a body of undisputed
civil jurisdiction and preventive justice. Digitization of the notarial
services involves the creation of the Unied State E-Notary System, the
implementation of an electronic notarial document that is equally valid as
a paper one.
It is very important to digitize the notary’s paper archive and create an
electronic notary archive. The Ukraine’s Recovery Plan also provides for the
registration of wills registered in Ukraine in foreign states (the EU Member
States).
It is proposed to perform notarial acts without the use of special
forms for notarial documents. A promising direction is the development
of the technology for performing notarial actions remotely through
communication means. Modernization of the notarial services involves
optimization of the procedure for termination of notarial activity and
its subsequent registration, creation and management of electronic
registration/personal les of notaries (National Council for the Recovery
of Ukraine from the Consequences of War, 2022). The introduction of an
electronic certicate of the right to engage in notarial activity takes a special
place in the modernization. Another innovation is planned: granting the
right to private notaries to create notary oces/bureaus operating as a bar
association.
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4. Discussion
It can be stated that the digitization of information was triggered by
the evolution of technological developments. As a result, legal systems are
also subject to such changes and must be studied in the light of digital law.
Notarial practice requires the adaptation of traditional functions to current
conditions in order to ensure adequate decisions without compromising
legal certainty and fairness (Carrera, 2022).
But the researcher emphasizes that the resources provided at the
current level of technological development are limited in terms of
potential. Technology should associate with the professions used to provide
innovative solutions to emerging challenges. In practical terms, the law-
related professions need updating. Notaries must learn and research digital
law (Carrera, 2022).
It turned out that many old laws do not provide for modern technologies.
Therefore, they do not provide clear answers as to whether the form
requirements can be met electronically. But the need for written evidence in
the form of real acts is growing in connection with the increasing demands
for legal certainty in various economic and social relations (Widyantoro et
al., 2022). Electronic records and signatures oer notaries many advantages
over conventional paper document management. This includes speed, cost
savings, convenience, easier search and analysis, cheaper archiving and
retrieval, and automation of storage and disposal (Jia and Li, 2022).
It also includes additional options to protect authenticity, integrity, better
evidence and identication, scalability options. According to researchers,
electronic signatures can clearly indicate the true identities of both parties
in electronic documents, ensuring the security of the document transfer
process and non-failure. But many dierent form requirements apply in
many cases and jurisdictions to particular transactions, documents and
signatures (Determann, 2021). The researcher believes that the legal and
political uncertainty hinders the adoption of electronic signature products
and the global harmonization of current legislation.
It can be stated that the introduction of remote identication and remote
notarization leaves the existing types of wills of a particular jurisdiction
in their current form. At the same time, enshrining these possibilities in
legislation preserves legal certainty (Biemans, 2021). According to the
researcher, the introduction of audio-video technologies in the preparation
of wills in the Netherlands appears to be a logical step forward in the 21st
century.
Belgium has also implemented a digital power of attorney for a more
simplied use of notarial services (Beuker et al., 2019). The positive side of
the COVID-19 pandemic for Belgium was also the acceleration of the main
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Notarial practice of will declaration in civil transactions in the countries of the European Union
digitization process in the eld of notarial services, which will contribute to
the sustainable recovery of this industry (Humaira and Latumeten, 2022).
It can be concluded that it is necessary to ensure the continuity of the
protection of rights and freedoms in the civil process during martial law.
This is why it is extremely important to improve the legislative norms of
Ukraine in these conditions, in particular, regarding the expansion of the
procedural capabilities of notaries (Karmaza, 2022).
It can be stated that the procedure for performing notarial acts in
relation to transactions with the involvement of a foreign party is an urgent
problem. Such acts of the notary are closely related to the protection of
individuals and legal entities in Ukraine (Samsin et al., 2021). According
to researchers, the use of ICT by notaries can simplify the process and help
avoid subjective mistakes. This will help to open up new opportunities for
simplifying transactions that involve foreign parties in Ukraine.
It can be stated that the notarial services in Ukraine are being in the
dynamic development and improvement of both the system itself and the
notarial services in general. The introduction of electronic notarial services
is a rather urgent issue and needs to be implemented as soon as possible.
The main goal of the electronic notarial services is to transform it into the
most accessible and convenient institution (Apalkova, 2021). According to
the researcher, the development of digital technologies should focus on the
introduction of electronic registers to speed up the execution of notarial
acts.
Conclusions
In the EU countries, the notarial practice of declaring will in civil
transactions is aimed at ensuring a proper balance. It is necessary between
the interests of the state in implementing the digitization of the notarial
process, on the one hand, and the interest of citizens in receiving quality
services, on the other.
The deployment of eIDAS means a higher level of security and
greater convenience for online services in the EU notary system. Remote
authentication, electronic archiving, long-distance video conferencing,
and electronic identication have become more predictable. Appropriate
actions improve standardization opportunities and reduce variations and
deviations. All of the above also contributes to the sustainability.
Any form of electronic signature may be used to sign transactions unless
expressly prohibited by the law of an EU Member State. Some Member
States provide that wills, trusts, powers of attorney and any agreements
normally signed by a notary cannot be signed with an electronic signature.
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A qualied signature provides a higher level of security by providing
electronic evidence, which is guaranteed by a digital certicate. The
European provider of qualied services — Gaya — is worth mentioning. An
important legal aspect is Gaya’s compatibility with electronic identication,
authentication and signature regulated by eIDAS. The result is the legal
force of the agreements signed with this platform.
The notarial practice of declaring wills in civil transactions of the EU
countries indicates the gradual digitalization. According to French law, the
parties are free to determine the form of their contract, that is the manner
of signing it. Documents in the eld of family and inheritance law that
require a so-called “personal signature” cannot be signed with an electronic
signature. Belgium introduced digital power of attorney for more simplied
use of notarial services.
In the Netherlands, the requirement of physical presence of a notary
and/or witnesses has been replaced by the use of audio-visual equipment
for authentication of the testator’s last will. The introduction of an
electronic public act in Italy during the performance of notarial acts is worth
mentioning. But it can also be stated that the notaries of the EU countries
have fears that these innovations pose a certain threat to notarial practice.
Despite the war in Ukraine, the notarial practice in the country is
being developed and improved. The international experience of European
countries can help in the exchange of eective practices and improvement
of the national legislation of Ukraine in the notarial eld.
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Esta revista fue editada en formato digital y publicada
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Vol.41 Nº 76