Critical Observations on the Proposed EU Regulation for Electronic Identification and Trust Services for Electronic

Transactions in the Internal Market

XVI GENERAL ASSEMBLY Brussels, 4th December 2012

Scotland House: Rond-Point Schumann, 6 (8th floor)

jos.dumortier@timelex.eu

In the Netherlands, as in other European Member States, the civil law notary sends electronic copies of notarial deeds, signed with the use of qualified electronic signatures (QES), to the Registrar.

In some countries (like in Spain), the registrars issue the qualified certificates supporting those QES themselves.

In other countries (e.g.: the Netherlands), the registrars do not issue qualified certificates themselves. These registrars rely on the services by a small number of Trusted Service Providers (TSP`s). 

Question (1)

Notaries and other parties (e.g. bailiffs) do not use a qualified certificate, issued to themselves as a private person, to send a copy of the deed (or seizure).

They use a qualified certificate , issued to them as a notary/bailiff). In other words, there is a specific 'role': 'notary', 'candidate-notary', 'bailiff' added to the certificate.

Question (2)

 The TSP`s(in the Netherlands), while issuing a QES/ Certificate to a notary, do check whether a notary truly is a notary.

When issuing a qualified certificate to a (candidate) notary, the TSP asks the notary for specific proof.

The TSP wants to know whether the notary truly is a notary, before issuing a qualified certificate with the role: ‘notary’ to the notary concerned. 

Question (3)

Once the qualified certificate is issued, the TSP`s, do not check whether a notary still is a notary or whether the notary is suspended or not.

It is possible that the notary is suspended after the issuance of the certificate and that the certificate is still in use because the TSP does not know about the suspension.

In fact, quite recently I found out that a notary used his qualified certificate, while being suspended for several weeks. Right now I am starting a disciplinary case against the notary.

Question (4)

Traditional Context: Sign and Transmit

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At the end of last century, people were asking themselves:

How can we sign and transmit documents in the digital environment?

Since last decade we have understood that it makes no sense

to sign and to transmit electronic documents

Digital evidence

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The relevant question is: what happened ?

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In the context of digital processes we produce evidence by registering what happens.

Not by exchanging signed documents!

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Now back to our initial question …

Policy Enforcement Model

UserPolicy

Enforcement( PEP )

Application

Policy Decision(PDP)

Action on

application Decisionrequest

Decisionreply

Actionon

applicationPERMITTED

Policy Information ( PIP )

Informationrequest/

reply

Policy Administration ( PAP )

Policyretrieval

Authentic source

Policy Information ( PIP )

Informationrequest/

reply

Policyrepository

Actionon

applicationDENIED

Manager

Policymanagement

Authentic source

Transition

Transmission of electronicallysigned documents

Jos DumortierK.U.Leuven / iMinds Sint-Michielsstraat 6B-3000 Leuven(t) +32 (0)16 32 51 49www.icri.be / jos.dumortier@law.kuleuven.be

Jos Dumortiertime.lex - Information & Technology LawCongresstraat 35B-1000 Brussel(t) +32 (0)2 229 19 47www.timelex.eu / jos.dumortier@timelex.eu

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