The obligation to exercise public authority electronically has generally been in force since 1 November 2013, subject to the exceptions set out in Section 17(1)(a) to (c) Opens in a new windowof the e-Government Act (hereinafter referred to as the “e-Government Act” or “ZoEG”). Section 60(1)Opens in a new window of the ZoEG provides for a deferral of this obligation until 1 November 2016, but only in cases where technical reasons on the part of the public authority prevent it from exercising public authority electronically and, at the same time, no specific legislation imposes an obligation on it to do so electronically.
As of 1 November 2016, the obligation under Section 17(1) of the e-Government Act has applied, i.e. the general obligation to exercise public authority electronically. If technical obstacles arise on the part of a public authority after 1 November 2016, preventing it from exercising public authority electronically, Section 60(1) of the e-Government Act can no longer be invoked, as the transitional provision expired on 1 November 2016.
In the event of objective technical reasons, a public authority may rely on Section 17(4) of the e-Government Act, which allows a specific act to be carried out in paper form if it is objectively impossible to perform it electronically for technical reasons and the statutory deadlines within which the authority is required to perform the act would otherwise be jeopardised. The purpose of this provision is to address urgent technical problems caused by circumstances such as power outages, equipment malfunctions and similar incidents. It is not intended to provide scope for the long-term non-application of electronic exercise of public authority.
The e-Government Act defines the exercise of public authority as proceedings concerning the rights, legally protected interests and obligations of persons. Accordingly, the application of the provisions of the e-Government Act is limited to cases in which decisions are made concerning, in simplified terms, the specific rights and obligations of natural or legal persons. In other words, its scope is limited to proceedings resulting in a decision as an individual legal act and does not extend to every exercise of the powers of public authorities under specific legislation.
An example illustrating this distinction can be found in proceedings under the Building Act, in which a municipality acts as a building authority. In the context of spatial planning, a municipality carries out various activities and procedures resulting in spatial planning materials and spatial planning documentation (e.g. an urban planning study or a municipal zoning plan). However, given the nature of these procedures and the character of their outcomes, the e-Government Act does not apply to them, as they do not concern the rights or obligations of specific persons. By contrast, where the outcome of spatial planning proceedings is, for example, a decision on the location of a construction project or a decision imposing a building prohibition, the e-Government Act does apply. Such proceedings result in an individual legal act that directly establishes rights or imposes obligations on a specific person.
The first step, therefore, is to identify the proceedings to which the e-Government Act applies within the scope of the activities of a particular public authority, in accordance with the above definition of the exercise of public authority. These will generally include judicial proceedings, proceedings under the Administrative Procedure Code and other administrative procedural regulations in which decisions are issued, including proceedings concerning the imposition of fines and inspection proceedings.
With regard to the types of proceedings concerned, pursuant to Section 2(2)Opens in a new window of the e-Government Act, the Act does not apply to the exercise of public authority or to communication between public authorities where such communication involves classified information or sensitive information; to the exercise of public authority by the National Bank of Slovakia or the Crisis Resolution Council; to service by public notice through publication in an official register (e.g. the Commercial Gazette); or to the provision of information under the Freedom of Information Act (although the forwarding of a submission and the issuance of a decision refusing access to information are covered).
The following are also excluded: the electronic exercise of public authority relating to the civil service and social security of members of security forces, intelligence services and emergency services specified by law, as well as the exercise of public authority relating to security clearance procedures concerning proposed persons falling within the competence of intelligence services.
Furthermore, pursuant to Section 17(1)Opens in a new window of the e-Government Act, the Act does not apply to proceedings and acts which specific legislation expressly requires to be carried out in paper form, which are conducted orally or by presenting a specific item, or to acts such as oral hearings, on-site inspections or other acts performed outside the premises of a public authority.
From the perspective of the method of communication, it is also important to note that where communication takes place between a public authority and parties to proceedings (i.e. essentially between a citizen/business and a public authority), electronic messages must be delivered through electronic mailboxes.
However, where a public authority communicates with another public authority that is not a party to the proceedings in question, they may communicate outside electronic mailboxes, either through the Public Administration Portal's (ÚPVS) process integration and data integration module or by another direct means.
A specific situation arises where a public authority acts as a party to proceedings. In such a capacity, the public authority is required to communicate electronically, at the latest from 1 January 2019, unless specific legislation already required mandatory electronic communication for the particular proceedings concerning a person's rights, legally protected interests or obligations, or for part thereof, before that date.
For the purposes of the e-Government Act, Section 17(1) and (3)Opens in a new window is particularly important. In simplified terms, these provisions establish that a public authority is obliged to communicate electronically, whereas a citizen/business may decide whether to communicate with the authority electronically or otherwise. At the same time, where specific legislation expressly requires electronic communication, such communication must take place electronically and the citizen/business has no option to choose paper-based communication.
With regard to the electronic receipt of submissions, the e-Government Act should be understood as legislation that does not replace the methods of submitting documents and applications laid down in specific legislation. Rather, it merely stipulates that where an electronic submission is made in accordance with the procedure laid down in the e-Government Act, it is deemed equivalent to submissions made under specific legislation, provided, of course, that all the applicable content requirements are met.
With regard to communication between public authorities and citizens/businesses, the e-Government Act is based on the premise that, in order to exercise rights or fulfil obligations under specific legislation electronically, electronic communication must take place by means of an electronic message. An electronic message containing an electronic submission must be delivered to the electronic mailbox of the relevant public authority.
An electronic message is defined as a logically organised set of data containing the identification of the sender and recipient and at least one electronic submission or electronic official document, including any attachments.
An electronic submission is defined as a set of data completed in accordance with the relevant electronic form.
Based on this concept, the following requirements must be met when submitting documents under the e-Government Act:
In other words, if a public authority receives a submission that does not comply with the data structure prescribed by the relevant form or is not submitted in the format of an electronic message, the requirements for electronic communication in the exercise of public authority under the e-Government Act will not have been met.
The electronic submission forms, their requirements and their structure are determined by the relevant central government authority responsible for the respective area (or by municipalities within their own autonomous powers). These forms must be issued in accordance with Decree No. 55/2014 Coll.Opens in a new window of the Ministry of Finance of the Slovak Republic on standards for public administration information systems.
An exception to the above applies during the transitional period, under which, until 31 December 2019, the Social Insurance Agency may use an ordinary electronic document instead of electronic forms. However, such a document must still be sent as part of an electronic message, as described above, and must be signed using a qualified electronic signature or a qualified electronic seal.
With regard to the receipt of submissions, the following principles therefore apply in simplified terms:
Under the e-Government Act, the statutory body of a public authority, as well as any person authorised by that statutory body, is entitled to access the authority's electronic mailbox.
Access is possible only through one of the following means: an electronic identity card with a chip and a personal security code; a residence permit card for a foreign national with a chip and a personal security code; an alternative authenticator; or automated access using an authentication certificate. The first three options require an action performed by a specific individual, whereas the last option is conditional upon integration with the information systems of the National Agency for Network and Electronic Services (NASES).
A public authority must therefore decide how it will access its electronic mailbox and process electronic submissions, namely whether this will be done through individual actions performed by authorised employees or through an automated process.
In simplified terms, an electronic official document consists of data completed in accordance with an electronic form and representing the outcome of proceedings conducted by a public authority (typically a decision); data sent to parties to proceedings in the course of the exercise of public authority or used to initiate proceedings (typically requests to supplement a submission, pay an administrative fee or resolutions initiating proceedings); as well as data used to record legal facts associated with an official document (typically endorsements certifying the legal force or enforceability of a decision).
The term “data” is used because the e-Government Act provides, similarly to the rules governing submissions, that official documents must also be created using electronic forms. As with electronic submissions, a transitional period applies to the creation of official documents, during which the Social Insurance Agency may, until 31 December 2019, use an ordinary electronic document instead of electronic forms.
An electronic official document must contain the particulars prescribed by the relevant procedural legislation for the specific type of document (decision, resolution or notice). It is prepared electronically and, pursuant to Section 23(1)Opens in a new window of the e-Government Act, must be signed by an authorised person using a qualified electronic signature supported by a mandate certificate, or by means of a qualified electronic seal. In both cases, a qualified electronic timestamp must be attached. The document is then delivered to the party to the proceedings through their electronic mailbox, provided that the mailbox has been activated for delivery.
Pursuant to Section 26(4)Opens in a new window of the e-Government Act, where any of the substantive requirements of an electronic official document are inherently linked to its paper form, such a requirement is deemed to have been fulfilled by authorising the electronic official document. The electronic form for an electronic official document may also contain a person's identifier.
Pursuant to Section 8(1)Opens in a new window of the Act on Trust Services for Electronic Transactions in the Internal Market and on Amendments to Certain Acts (the “Trust Services Act” or “ZoDS”), a mandate certificate is a qualified certificate for an electronic signature issued to a natural person who is authorised by law or on the basis of law to act on behalf of another person or a public authority, or in their name, or to a natural person who performs an activity or holds an office pursuant to specific legislation.
In other words, a mandate certificate serves both to create a qualified electronic signature and to demonstrate that the signatory is acting for or on behalf of a public authority, is themselves a public authority (e.g. a notary or bailiff), or holds an office within a public authority (e.g. a judge or public prosecutor).
It follows from the above that where an electronic official document is prepared and its substantive requirements are, by their nature, linked to its paper form (typically, in particular, the impression of an official stamp or a handwritten signature), the public authority may replace these requirements by using either a qualified electronic signature supported by a mandate certificate or a qualified electronic seal, accompanied by a qualified electronic timestamp.
The choice between using a qualified electronic signature supported by a mandate certificate and a qualified electronic seal is subsequently influenced primarily by the provisions of specific legislation governing the requirements of the official document. For the purposes of choosing the method of authorisation pursuant to Section 23(3)Opens in a new window of the e-Government Act, the key consideration is, in particular, the person to whom the method of expressing the will of the public authority is attributed under the relevant specific legislation.
Where a specific legal regulation:
Section 26(4)Opens in a new window of the ZoEG is a provision concerning the substitution of content requirements associated with the paper form of a document. With regard to a signature on a decision or other official document, it is not possible, in the case of a paper document, to speak of the signature of a public authority as a legal entity or as an entity in its own right, since a signature on a paper document is invariably linked to its execution by a natural person. Therefore, Section 26(4) of the ZoEG must also be interpreted in light of its purpose, which, in the case of a signature, is to replace the expression of will on the part of a public authority, which is linked to the paper form of a document, with one of the methods of authentication applicable to the electronic form of an official document. In our opinion, such an interpretation applies to cases where a specific legal regulation generally stipulates that an official document must contain the signature of an authorised person who prepares the official document on behalf of a public authority.
Pursuant to Section 3(k),Opens in a new window third point, the so-called certificate of legal effectiveness or enforceability (doložka právoplatnosti, or doložka vykonateľnosti) constitutes a specific type of electronic official document.
The ZoEG does not regulate the substantive requirements of such a certificate. Consequently, the relevant provisions of specific legislation or the internal regulations of public authorities governing these requirements shall apply.
Pursuant to Section 28(3)Opens in a new window of the ZoEG, the so-called certificate of legal effectiveness or enforceability must be inseparably linked to the official document in respect of which it certifies legal effectiveness or enforceability. This link is established by signing both documents jointly with a qualified electronic signature or a qualified electronic seal and attaching a qualified electronic time stamp to them.
Since legal effectiveness or enforceability may concern only certain operative parts of a decision, or may differ in relation to individual parties to the proceedings, these circumstances must be reflected directly in the certificate. For example, if a public authority certifies the legal effectiveness or enforceability of the second operative part of a decision on an electronic document submitted by a party to the proceedings, where a certificate of legal effectiveness has already been attached in respect of the first operative part, it must issue a new certificate relating to the second operative part and link it to the documents already in existence.
From a practical perspective, it therefore seems appropriate to recommend that, when requesting certification of legal effectiveness or enforceability, public authorities should use the electronic official document maintained in their case file and always attach to it the certificate that is current at the relevant time. This will eliminate the need to attach multiple certificates to a single official document.
Certificates of legal effectiveness and enforceability are published in the electronic formsOpens in a new window module under the following identifiers:
Since October 2019, the certificate form has also been available via the green button labelled “Mark Certificate” (Vyznačiť doložku), directly in sent electronic official messages containing electronic official documents, i.e. messages with the class EGOV_DOCUMENT (decisions). It was also added in bulk to the forms available via the “Create Notification/Request” (Vytvoriť oznámenie/výzvu) function, which every public authority (OVM) has available in its electronic mailbox (in the upper-left corner).
Pursuant to Section 29(1) of the ZoEG, electronic official documents are served to an electronic mailbox that has been activated, taking into account the provisions of specific legislation governing electronic service of documents. Accordingly, a public authority must be able, in every case involving the service of an electronic official document, to verify whether the relevant person has an activated electronic mailbox for service.
During the transitional period ending on 31 December 2020, the service of electronic official messages by financial administration authorities in customs proceedings or other administrative proceedings before a customs authority, as well as in tax administration matters, is governed by a regime under which the message is always delivered to the electronic mailbox on the Central Government Portal (ÚPVS). However, it may also be delivered to the central electronic folder or via the Financial Administration portal. The message is deemed to have been served at the moment when it is first made available at either of these locations.
In accordance with Section 31(2) of the ZoEG, documents are not served to an electronic mailbox only in the following cases:
Accordingly, if a public authority creates an electronic official document but cannot deliver it to an electronic mailbox for one of the above reasons, it should first attempt to serve it electronically at the location prescribed by the legislation governing the relevant proceedings. For example, if specific legislation provides for its own system of electronic mailboxes or another method of service in such cases, the public authority should use that method.
Only if the electronic official document cannot be served by these means should the public authority prepare a paper counterpart of the document and serve that counterpart in accordance with the provisions governing service in paper form.
A specific case arises where the recipient's electronic mailbox has not been activated. In such circumstances, as in the cases described above, the public authority prepares a paper counterpart of the electronic official document in accordance with Section 31aOpens in a new window of the ZoEG, following the procedure prescribed by Decree No. 85/2018 Opens in a new windowColl. of the Office of the Deputy Prime Minister of the Slovak Republic for Investments and Informatization (currently the Ministry of Investments, Regional Development and Informatization of the Slovak Republic), which lays down the details of the procedure for preparing a paper counterpart of an electronic official document and the requirements applicable thereto.
Pursuant to Section 31a(3) Opens in a new windowof the ZoEG, a paper counterpart of an electronic official document has the same legal effects as the electronic official document from which it was prepared. Service of a paper counterpart of an electronic official document has the same legal effects as service of the electronic official document itself.
For the purposes of identifying the person on whom a document is to be served, the ZoEG requires the use of a personal identifier. In the case of natural persons, this consists of their first name, surname and birth identification number (rodné číslo), or an equivalent identification number in the case of a foreign national. In the case of legal entities, it consists of their identification number, or an equivalent number in the case of a foreign legal entity.
Put simply, the set of data required by a public authority to identify an electronic mailbox consists of the personal identifier of the relevant person.
Since a birth identification number, or an equivalent number in the case of a foreign national, is not ordinarily required as a standard element of submissions, a public authority may frequently find itself in a situation where it does not have sufficient information to identify the electronic mailbox of a party to the proceedings.
Pursuant to Section 12(9) of the ZoEG, NASES makes electronic mailbox addresses available to public authorities. This provision, as well as the method by which a public authority can identify an electronic mailbox, is implemented both at the level of automated communication between information systems and through the user interface.
The search function in the user interface enables an electronic mailbox address to be identified even without knowledge of the person's birth identification number. By entering the person's first name and surname, the system displays a list of activated electronic mailboxes corresponding to the entered details.
If the public authority knows the natural person's date of birth, it can identify the electronic mailbox by using the first six digits of the birth identification number, provided that these six digits (representing the date of birth) are not identical for multiple persons with the same first name and surname.
An important point is that where a submission is made after logging in to the Central Government Portal (ÚPVS), the submitting person is automatically identified (the person is authenticated), and there is therefore no issue concerning the identification of that person's electronic mailbox.
If the information constituting a person's identifier is a mandatory element of a submission, the public authority is entitled, in the course of remedying defects in an incomplete submission, to request that such information be supplemented, failing which the proceedings may be discontinued. The electronic mailbox can subsequently be identified on the basis of the supplementary information provided.
The information constituting a person's identifier means the person's first name, surname and birth identification number, or an equivalent identification number in the case of a foreign national, where the person is a natural person; and the identification number, or an equivalent number in the case of a foreign legal entity, where the person is a legal entity.
In cases where, in particular, the birth identification number is not a mandatory element of the submission and the public authority is not entitled to request that it be provided as part of the procedure for remedying defects in the submission, it is possible to use the person's date of birth as supplementary identification information.
This applies, for example, to proceedings under the Civil Dispute Procedure Code, where the date of birth is a mandatory element of a statement of claim pursuant to Section 132(1)Opens in a new window, in conjunction with Section 133(1)Opens in a new window, or to proceedings under the Administrative Procedure Code, where identification of the submitting person is also a mandatory element of the submission pursuant to Section 19(2)Opens in a new window of the Administrative Procedure Code.
Accordingly, if a public authority is entitled to request the natural person's date of birth as supplementary information to a submission, it may subsequently be able to identify the electronic mailbox to which the official document is to be delivered by using that information.
If, even after the submission has been supplemented, the public authority is unable to identify the electronic mailbox to which the document is to be delivered unambiguously, for example because several records contain the same first name, surname and date of birth but different birth identification numbers, and the authority has other supplementary information enabling it to identify the person, particularly their residential address, it is entitled to rely on Section 17(6) Opens in a new windowof the ZoEG, in conjunction with Section 23a(2)Opens in a new window of Act No. 253/1998 Coll., as amended (hereinafter referred to as the “Population Register Act” or “ZoRFO”), and request the relevant birth identification number from the Register of Natural Persons (RFO). This information will enable the authority to identify the electronic mailbox.
We are of the opinion that the following sequence of steps should be followed when identifying the electronic mailbox of a party to the proceedings:
If, despite all the steps outlined above, it is still not possible to identify the electronic mailbox, we are of the opinion that, in accordance with the principle that “no one is bound to fulfil an impossible obligation” (nemo tenetur ad impossibile), and taking into account the need to ensure that the public authority fulfils its obligations and that the rights of the parties to the proceedings are protected, the public authority should serve the official document in paper form.
Pursuant to the new Section 31a Opens in a new windowof the ZoEG, a system of centralised official service of documents is being gradually introduced into practice.
Under this provision, following the expiry of the transitional period stipulated in Section 60f(4)Opens in a new window, all state budgetary organisations will be required to serve electronic official documents through the administrator of the electronic service module. State budgetary organisations will be required to follow this procedure no later than 1 November 2018.
This change means that a public authority will no longer be required to send an electronic official document individually. Instead, it will fulfil its obligation by submitting the duly authenticated document through the electronic service module.
The administrator will ensure that the document is delivered to the recipient's electronic mailbox. If the recipient's electronic mailbox has not been activated, the administrator will arrange for the document to be delivered to the recipient in paper form through a postal service provider, in accordance with the procedure laid down in the specific legislation governing the relevant proceedings. The administrator will also ensure that a paper counterpart of the electronic official decision is prepared.
The law also regulates the allocation of responsibility for fulfilling obligations relating to centralised official service of documents, as follows:
Centralised official service of documents will be mandatory only for public authorities that are state budgetary organisations (Section 31a(11)Opens in a new window). Other public authorities may agree to participate in centralised official service or may continue to follow the existing procedures for serving documents (Section 31a(12)Opens in a new window).
In any event, however, all public authorities must comply with Decree No. 85/2018Opens in a new window Coll. when preparing paper counterparts of electronic official documents and determining the requirements applicable to such counterparts.
