Contributor: Attorneys at Law in cooperation with Karanovic & Partners
Author: Božidar Milošević and Vlatko Tokarev
1. Is there specific legislation in North Macedonia ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?
The general rules relating to the use of digital platforms and electronic signatures are provided in the local Law on Electronic Documents, Electronic Identification and Confidential Services (“Electronic Documents Law”), which is aligned with Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market.
Other than the Electronic Documents Law, no special rules regarding the execution of documents with the use of digital platforms or any electronic signatures by the Civil Aviation Agency of the Republic of North Macedonia (“Aviation Authority”) apply. However, even though the general rules from the Electronic Documents Law should apply in procedures before the Aviation Authority, in practice, that is not the case due to different reasons.
For example, despite the fact that under the Electronic Documents Law, electronic form (including signature) is equivalent to written form, the authorities still have a conservative approach to what is considered “written form” under the Law on Obligations and Real Rights Matters in the Air Traffic. This law regulates matters regarding establishing leases or mortgages and requires written form for these purposes. At the same time, it provides only one explicit case when an electronic form is equivalent to a written form (i.e., in the case of agreements for the transport of passengers) and when a written form is not required. Hence, the agreements for leases or mortgages of aircraft should be in written (hardcopy) form. In addition, the security agreements/agreements for establishing mortgages are usually certified by a notary public in order to include so-called “enforcement clauses” and enable enforcement of the mortgage without a court decision. For this purpose, a wet ink signature is required during the procedure in front of the notary.
2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?
Under the general rules of the Electronic Documents Law, a qualified electronic signature is the only equivalent to a handwritten signature. All qualified electronic signatures must be a) uniquely linked to the signatory, b) capable of identifying the signatory, c) created using electronic signature creation data that the signatory can (with a high level of confidence) use under his sole discretion, d) linked to the data signed therewith in such a way that any subsequent change in the data is detectable and e) created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures. Additionally, the Electronic Documents Law prescribes in detail all technical requirements for qualified certificates and qualified trust service providers.
In accordance with the previously mentioned, there are no legal obstacles to acceptance of an electronic signature, subject to the following important qualifications:
– the use of a qualified electronic signature would be required;
– there might be technical obstacles, as some public institutions might not have the technical means to accept an electronic signature;
– there is still a rather conservative market approach, and the use of electronic signatures is not widely accepted in practice.
3. Does the Aviation Authority in North Macedonia use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
Yes, the Aviation Authority keeps a register for Aircraft and Aircraft Documents or Aircraft Lease Documents, including mortgages, in hardcopy and electronic form. The Aviation Authority keeps the electronic register in line with the ICAO standards.
4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in North Macedonia?
No, the Aviation Authority only accepts hard copies of originals or notarized copies of the documents relating to the aircraft registered in the aircraft register.
5. Do the courts of North Macedonia consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?
As explained in answer to question 2, documents signed via a qualified electronic signature are legally valid and enforceable in North Macedonia, but such digitally signed documents are still rarely accepted in practice.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in North Macedonia?
The Law on Civil Procedure provides that lawsuits, countersuits, legal remedies and other statements, pleadings, proposals and announcements may be submitted either in writing or via electronic means to the admissions office of the competent court. However, as far as we are aware, this option is not used in practice, and the willingness of courts to accept electronic submissions of procedural documents is not tested and confirmed.
7. Do the courts of North Macedonia accept procedural documents executed digitally? Is there any specific certification required? Does North Macedonia make any distinction between official digital signatures and private digital signatures?
There is no legal obstacle for courts in North Macedonia to accept procedural documents executed digitally, considering that the Law on Civil Procedure explicitly provides that a submission may be signed electronically. In practice, submitted procedural documents always contain a handwritten signature, and we are not aware of any submitted electronic documents.
To be legally valid and enforceable, digitally signed documents must be signed via an electronic identification scheme registered by the Ministry.
The Electronic Documents Law does not make a distinction between digital signatures created by public or private entities.
8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?
There are no other formal requirements for the validity of documents related to the fact that they are signed digitally. The consent of the parties to digital signatures is not prescribed as a mandatory element, but it is advisable that such express reference is included considering the conservative market approach to the acceptance of electronic signatures.
In terms of the electronic document itself, the Minister for Information Society and Administration has adopted a Rulebook on the Mandatory Elements of Electronic Documents (“Rulebook”), according to which an electronic document must meet certain technical requirements and contains the following elements (regulated in more details in the Rulebook):Header, at the top of the document, containing the logo of the issuer; Body, as the central part of the document, consisting of the text prescribing the essential meaning and substance of the document; Footer, at the bottom of the document.
9. Can foreign entities not located in North Macedonia execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in North Macedonia? Are there any other formalities required?
Although there are no legal obstacles to the acceptance of digital signatures, the Aviation Authority in North Macedonia is, in practice, reluctant to accept digitally signed documents. Hence, it advised that all documents filed for registration with the Aviation Authority in North Macedonia contain a handwritten signature.
10. Does the Aviation Industry in North Macedonia usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
Printed paper aviation documents are generally used. The Aviation Authority does not use blockchain technology.
11. Are there any Notary or Apostille requirements in North Macedonia? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
If a certain document needs to be notarized abroad, it also has to include an apostille or other type of legalization, depending on whether the country of notarization is a signatory party to the 1961 Convention on Apostille. This also applies to electronically executed documents that are notarized abroad.
Most of the aviation documents that should be provided to the Aviation Authority do not need to be notarized. However, some of them are notarized in practice for greater legal certainty and easier enforcement (as explained in the answer to question no. 1 regarding the security documents). There is a possibility for carrying out the notarization electronically in North Macedonia. However, as far as we are aware, this has not been tested in practice.
a. Has North Macedonia implemented the e-Apostille program?
No, North Macedonia has not implemented the e-Apostille program yet.