Draft EU Regulation: Will Signatures Disappear Anyway?

Jos Dumortier

Draft EU Regulation

1. e-Identification

2. Trust Services

e-Identification: mutual recognition

• idea:

– if an online (government) service in a Member State requires access authentication by means of an e-ID,

– then this service should be accessible for e-ID’s notified by other Member States

Trust Services

• idea: – ?

Federal eSigning Service?

Art. 5.1 of the Directive

“Member States shall ensure that advanced electronic signatures which are based on a qualified certificate and whichare created by a secure-signature-creation device:

a) satisfy the legal requirements of a signature in relation todata in electronic form in the same manner as a handwrittensignature satisfies those requirements in relation to paper-based data;

and

b) are admissible as evidence in legal proceedings.”

So, why didn’t we use it?

• too complex?

• no services available?

• not relevant in our jurisdiction?

• national legislation is more flexible

• regulating signatures is not sufficient (= only one part of the chain)

• signatures are very often no longer needed

“4. If an electronic signature with a security assurance level below qualified electronic signature is required, in particular by a Member State for accessing a service online offered by a public sector body on the basis of an appropriate assessment of the risks involved in such a service, all electronic signatures matching at least the same security assurance level shall be recognised and accepted.

5. Member States shall not request for cross-border access to a service online offered by a public sector body an electronic signature at a higher security assurance level than qualified electronic signature.”

Draft Regulation: “access signatures”

“A qualified electronic seal shall enjoy the legal presumption of ensuring the origin and integrity of the data to which it is linked”.

Draft Regulation adds:

“Qualified electronic time stamp shall enjoy a legal presumption of ensuring the time it indicates and the integrity of the data to which the time is bound.”

“A document bearing a qualified electronic signature or a qualified electronic seal of the person who is competent to issue the relevant document, shall enjoy legal presumption of its authenticity and integrity provided the document does not contain any dynamic features capable of automatically changing the document”.

“Data sent or received using a qualified electronic delivery service shall enjoy legal presumption of the integrity of the data and the accuracy of the date and time of sending or receiving the data indicated by the qualified electronic delivery system.”

But does it still make sense

to sign and to transmit electronic documents

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Traditional Context: Sign and Transmit

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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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Digital evidence

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Article 233

1. The authenticity of the origin, the integrity of the content and the legibility of an invoice, whether on paper or in electronic form, shall be ensured from the point in time of issue until the end of the period for storage of the invoice.

Each taxable person shall determine the way to ensure the authenticity of the origin, the integrity of the content and the legibility of the invoice. This may be achieved by any business controls which create a reliable audit trail between an invoice and a supply of goods or services.

New Approach: European VAT Directive

Now back to the initial question

Let us doing it this way

Transmission of electronicallysigned documents

LEGAL PRESUMPTIONS

NO LEGAL PRESUMPTIONS

Problem?

7a. Removal of Manual-Ink Signatures and Their Electronic Equivalent When Possible

“It is recommended that Governments and all organizations concerned with the facilitation of international trade procedures

examine current trade documents

to identify those where manual-ink signatures and their electronic equivalent could safely be eliminated and

to mount an extensive program of education and training in order to introduce the necessary changes in commercial practices”

10/04/2023 Bull Executive Roundtable - Legal Digital Archiving

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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