This Q&A document aims to help those of you who need to fully understand the new legal framework in order to implement it or reap the benefits of electronic transactions, as well as those of you who are curious about the Regulation's various implications.
I. What is new?
How will the legal effect of electronic signature change under eIDAS (compared to the regime under the eSignature Directive) as from 1 July 2016?
Since 1st July 2016, when the trust services' provisions under the eIDAS Regulation entered into application, an eSignature can only be used by a natural person to "sign", i.e. mainly to express consent on the data the eSignature is put. This represents a significant difference from the eSignature Directive where the eSignature, which could also be used by legal persons, was defined as a means for authentication.
Under eIDAS, the "signatory" will be a natural person who creates an eSignature. Therefore, certificates for eSignatures cannot be issued to legal persons anymore. Instead, legal persons can use certificates for eSeals (whose aim is not to sign but are means to ensure the integrity and origin of data).
What happens to qualified certificates for eSignature issued to legal persons under the eSignature Directive as from 1 July 2016?
Former qualified eSignatures certificates issued to legal persons cannot be used anymore to create a legally valid (qualified) eSignature as of 1 July 2016.
What happens to valid qualified certificates for eSignature issued to natural persons under the eSignature Directive after the switchover?
Under eIDAS, a transitional measure is foreseen for qualified certificates for eSignatures for natural persons issued under Directive 1999/93/EC. The latter will be considered as qualified certificates for electronic signatures under the eIDAS Regulation until they expire.
In addition to eSignature, which other trust services fall under eIDAS?
eIDAS regulates at EU level additional trust services which have emerged in a number of Member States since the eSignature Directive was adopted in 1999.
1. Electronic seals
These can only be issued to and used by legal persons to ensure origin and integrity of data / documents. An eSeal is therefore NOT an eSignature of the legal person.
When a legal entity makes use of eSeals, it is recommended to set up an internal control mechanism ensuring that only the natural persons entitled to act on behalf of the legal entity can make use of the electronic seals (push the button on behalf of the legal entity).
2. Time Stamping
Electronic time stamps are issued to ensure the correctness of the time linked to data / documents.
3. Verification and validation
Validation is an ancillary service to eSignatures and eSeals. It is the process confirming the validity of a (qualified) eSignature or eSeal. Such a process entails the verification that the requirements of the Regulation are met by a (qualified) eSignature or eSeal in order to confirm its validity. The Regulation also covers the verification and validation of certificates for website authentication.
4. Preservation of eSignatures, eSeals or certificates related to trust services
The eIDAS Regulation sets rules for the preservation of eSignatures, eSeals or certificates related to trust services. Preservation is different from electronic archiving (which is not a trust service under eIDAS). The objectives and targets of the process will make a distinction between the two activities:
In other words, electronic archiving of documents and preservation of eSignatures and eSeals are different in nature, are based on different technical solutions (attached to the document or to the eSignature/eSeal) and differ in their finality (conservation of the document vs preservation of eSignature/eSeal).
5. Electronic registered delivery service
This is a secure channel for the transmission of documents bringing evidence of (the time of) sending and receiving the message. Nevertheless, the Regulation does not make the equivalence between (qualified) electronic registered delivery services and registered postal mail (registered items) defined under the Postal Directive. Member States remain free to establish such equivalence at national level. In other words, when the law requires fulfilling a specific procedure by sending a registered postal mail, using (qualified) electronic registered delivery services would meet this requirement only if the national law has established the equivalence.
Who is the sender? Who is the addressee?
The sender (as well as the addressee) is the one identified by the qualified trust service provider, most likely the owner of the mail box. When the mail box belongs to a legal (or a different natural) person, the rules applicable to representation of legal (or natural) persons need to be followed (it is up to the legal / natural person to set up the appropriate management system for the mail box).
Should the identification of the sender and / or addressee be electronic?
The identification is neither limited to electronic identification of the sender and the addressee nor to notified eID means under eIDAS when identifying electronically. The conformity assessment report must show that the identification process set by the qualified trust service provider meets the requirements of the Regulation and the Supervisory Body must verify it during the "initiation of qualified trust services" set in article 21 of the Regulation. One should note that such identification also depends on the economic / business model of the qualified trust service provider. Indeed, a qualified trust service provider providing qualified electronic registered delivery services may decide to provide it on its own or in cooperation with other qualified trust service providers. In addition, the trust service provider might decide to identify and register its customers once and for all or, conversely, to allow each customer to identify for each message it would like to send. Regarding notified eIDs, qualified trust service providers may rely upon them, should they deem it appropriate with regard to their business model and provided that the conformity assessment body and the supervisory body considers that such identification process meets the requirements set in the Regulation.
6. Website authentication
Certificates for website authentication are issued to ensure the users (in particular citizens and SMEs) that behind the website there is a legal person identifiable by trustworthy information. The Regulation sets clear requirements for website authentication certificates to be considered trustworthy together with minimal obligations for providers of such certificates with regard to the security of their operations, their liability and their (light-touch) supervision regime. As a consequence, the Regulation ensures transparency regarding the quality of the service offered to users, accountability of providers with regard to security of their services, trustworthiness of the data associated to authenticated websites and technological neutrality of services and solutions
How are qualified certificates for Website Authentication validated?
The only source needed to verify whether qualified certificates for website authentication are trustworthy is the Trusted List that shall be established, maintained and published by Member States. The EU will provide a consolidated "List of the Lists".
Can companies apply their own policies?
As a matter of principle, the industry is obliged to in the first place apply the law and only then (where compatible) apply its own policies.
What is the added-value of qualified certificates for Website Authentication compared to existing SSL / TLS certificates?
Qualified certificates for website authentication are similar to (extended validation) EV certificates. The added-value comes from the requirements of the Regulation regarding:
(1) Risk management and strict security obligations applicable to the qualified trust service provider together with a clear liability regime;
(2) Legal obligations regarding the proper identification of the person requiring the certificate; and
(3) A supervision model that ensures the proper implementation of the requirements by qualified trust service providers.
An additional difference is that qualified certificates for website authentication may be issued to natural persons while existing certificates can only be issued to legal ones (according to the EV guidelines). In the EU, a Regulation applies before corporate policies. This difference is of legal nature and is not linked to technical aspects or trustworthiness of the issued certificate.
Do trust service providers need to provide all the trust services together?
No. it is a business decision of the trust service providers on whether to provide one, more than one or all trust services.
What are the rules on electronic documents under the eIDAS Regulation?
The eIDAS regulation sets the principle of non-discrimination of the legal effects and admissibility of electronic documents in legal proceedings. This is the first time that non-discrimination of electronic documents is regulated at EU level.
How is the smooth transition from eSignature Directive of 1999 and eIDAS regime ensured?
The eIDAS Regulation provides transitional measures (article 51) to ensure the continuity and legal certainty of products and services associated to electronic signatures under Directive 1999/93/EC. In a nutshell, secure signature creation devices and qualified certificates for electronic signatures for natural persons that are deemed compliant with the Directive before 1 July 2016 will be deemed compliant with the Regulation until they expire. Similarly, if deemed compliant with the Directive before 1 July 2016, Certification service providers issuing qualified certificates for electronic signatures will benefit from a 1 year transition period to adapt their systems to the new requirements (i.e. until 1 July 2017) during which they will be deemed compliant with the Regulation.
What will not be covered under the transitional measures?
Few cases are not covered by the transitional measures set in eIDAS Regulation, such as:
Can Member States regulate at national level other trust services than those under eIDAS ?
Yes, Member States can do it. The eIDAS Regulation (recital 25) allows Member States to define other types of trust services in addition to those provided for in the eIDAS Regulation. However, such "additional" trust services fall outside the scope of the eIDAS Regulation and have no legal effect across borders. Such trust services defined at national level may also be "qualified" and, if Member States decide so, may also be indicated as a national "qualified" trust service in the National Trusted List.
Can Member States restrict the type of eSignature required for a given online public service or transaction?
This covers scenarios like allowing only qualified eSignatures for signing a request to initiate legal proceedings addressed to a competent court or signing a renting contract online. Member States remain free to decide which type of eSignatures is required for a given online public service or transaction without prejudice to obligations stemming from other legislations. Nonetheless, certain obligations exist when MSs require advanced eSignatures or advanced eSignatures based on a qualified certificate to use online services offered by public sector bodies (article 27).
The above principle of MSs remaining free to decide on the level of security for a given online public service or transaction also applies to the other trust services in the eIDAS Regulation.
What do non-discrimination clauses mean?
The eIDAS Regulation sets the principle of non-discrimination of the legal effects and admissibility of electronic signatures, electronic seals, electronic time stamps, electronic registered delivery services and electronic documents as evidence in legal proceedings. Courts (or other bodies in charge of legal proceedings) cannot discard them as evidence only because they are electronic. Nevertheless, Courts must check whether there any procedures to be followed according to the EU or national (general or sectorial) law for a given document (including possible requirements on the use of specific levels of electronic tools) and might discard them on these grounds. In other words, the non-discrimination clause does not mean that each and every procedure can be carried out electronically. It means that Courts have to assess these electronic tools in the same way they would do for their paper equivalent.
Is electronic archiving a trust service under eIDAS?
No, electronic archiving is not a trust service under eIDAS. However, the Regulation sets rules for the preservation of electronic signatures, seals or certificates related to trust services.
What are the main differences between qualified and non-qualified trust services?
From a legal point of view, both qualified and non-qualified trust services benefit from a non-discrimination clause as evidence in Courts. In other words, trust services cannot be discarded by the judge only on the ground that they are electronic.
However, because of the more stringent requirements applicable to qualified trust service providers, qualified trust services provide a stronger specific legal effect than non-qualified ones as well as a higher technical security. Qualified trust services therefore provide higher legal certainty and higher security of electronic transactions.
How is the qualified status granted?
(1) An "eIDAS" accredited conformity assessment body assesses the conformity of the trust service provider and the qualified trust service it intends to provide with the applicable requirements of the Regulation..
(2) The trust service provider notifies the national supervisory body its intention to become qualified together with the conformity assessment report issued by the conformity assessment body. The conformity assessment report must prove the compliance with the requirements of the Regulation, and not with standards. Standards might nevertheless be a tool used by trust service providers to demonstrate their compliance with the requirements of the Regulation.
(3) The supervisory body verifies whether or not the trust service provider and the qualified trust service it intends to provide meet the requirements of the Regulation in order to be granted the qualified status. Upon positive verification, the qualified status is granted and the qualified trust service provider, together with the qualified trust service it provides, are added to the Trusted Lists that are established, published and maintained by Member States (therefore at national level, not at EU level).
It is worth emphasising that the final decision is in the hands of the Supervisory Body. The latter may rely upon the information provided in the conformity assessment report but is equally entitled to request further information and may take a duly justified decision that goes against the conformity assessment report.
Can Member States impose a specific business / technical model or a standard to be followed?
No, Member States cannot impose either the business / technical model to be set up by qualified trust service providers or a specific standard to be followed. The trust service provider has to demonstrate its compliance (building upon standards if it deems it appropriate) with the requirements of the Regulation while the Supervisory Body cannot refuse to grant the qualified status solely on the grounds that the proposed model does not comply with a given standard or a given business / technical model.
Is it possible for all trust services listed in the Regulation to be granted the qualified status?
No , only those trust services for which there are applicable requirements in the Regulation can benefit from the qualified status.
What is a closed system?
The eIDAS Regulation does not apply to "the provision of trust services that are used exclusively within closed systems resulting from national law or from agreements between a defined set of participants". The concept of closed systems is further clarified in recital 21 of the Regulation by specifying that services used exclusively within closed systems between a defined set of participants must "have no effect on third parties" and that "Only trust services provided to the public having effects on third parties should meet the requirements laid down in the Regulation". As a concrete example, systems set up in businesses or public administrations to manage internal procedures making use of trust services are explicitly referred to. It has to be noted that the exception for closed systems is at the benefit of providers which would not be subject to the requirements of the Regulation. Users may always opt-in by buying (qualified) trust services from (qualified) trust service providers instead of going for a closed system (regardless whether or not the trust service is used between a defined set of participants).
III. Actions taken by public bodies, including Member States and EU institutions
A. Member States
What measures had to be implemented at national level before 1 July 2016?
The Regulation is directly applicable in all 28 EU Member States. However, Member States had to ensure that:
Can a Member State put in place administrative measures in addition to those foreseen under eIDAS?
Additional national administrative measures, whose adoption at national level mainly depends on the existing administrative practices in place, or legal implementing measures might be considered appropriate provided that the national approach does not hinder the legal recognition of the trust services provided in a different Member State and does not hamper technical interoperability.
What is the value of the Trusted Lists under eIDAS?
Under eIDAS Regulation, national Trusted Lists have a constitutive effect. In other words, a provider/service will be qualified only if it appears in the Trusted Lists. Consequently, the users (citizens, businesses or public administrations) will benefit from the legal effect associated with a given qualified trust service only if the latter is listed (as qualified) in the Trusted Lists.
What is the role and use of Trusted Lists?
Trusted Lists are essential in ensuring certainty and building trust among market operators as they indicate the status of the service provider and of the service at the moment of supervision, while aiming at fostering interoperability of qualified trust services by facilitating the validation of, among others, eSignatures and eSeals.
Could Trusted Lists be used in connection with web browsers?
Under the eIDAS Regulation, there is no obligation for browser vendors to recognise, integrate or make use of the Trusted Lists in their products. Nonetheless, given the role of eIDAS and Trusted Lists in unleashing the potential of the Digital Single Market, there certainly is a very high expectation that Trusted Lists will be used in/rely upon existing browsers to ensure that trust in digital transactions are verified to the benefits of the EU citizens and businesses.
Given the constitutive value of Trusted Lists as a legal anchor for trustworthy transactions, any erroneous, misleading or imprecise communications regarding the result of a certificate validation may lead to liability.
B. Support from the EU Institutions
What has the Commission done to facilitate the switchover to the new trust services regime?
Since the adoption of the Regulation in 2014, the Commission has been working in close cooperation with a variety of stakeholders from both public and private sector to ensure a smooth implementation of the new rules.
The regular stakeholder consultations focused on awareness-raising, understanding how the rapid technological developments may affect the service provision and what the needs of the industry and commerce are.
What is the Commission's plan concerning other implementing acts?
The Commission has not planned to adopt other implementing acts in the near future. Nonetheless, the Commission will take into utmost account the stakeholders' needs and will carefully review the results of more flexible approaches, such as the EU accreditation scheme developed by the European Cooperation for Accreditation or the guidelines on security breach notifications (article 19), developed by ENISA. .
What about the international aspects related to trust services under eIDAS?
Non-qualified trust services provided by trust service providers established in non-EU countries can freely circulate in the EU under the Regulation while not benefiting from the qualified status.
On the other hand, trust services provided by trust service providers established in a third country shall be considered legally equivalent to qualified trust services provided by EU qualified trust service providers where there is an agreement between the EU and the country of origin of the provider (or an international organisation), on condition that the same applies to the trust services provided by EU qualified trust service providers in the given third country (principle of reciprocity). In this regard, it must be highlighted that negotiations on such international agreement can be only initiated by authorities representing officially the EU, their State or their international organisation.
Is the eIDAS Regulation applicable to the EU Institutions?
The Regulation is not applicable to the EU Institutions which are governed by their own adopted rules of procedures. The European Commission is currently regulated in this field by Decision 2004/563/EC (that has been integrated to its rules of procedures) setting Commission's own provisions on electronic and digitised documents to cover all electronic native documents and electronic documents resulting from the digitisation of documents originally on a physical medium. Moreover, recital 69 of the eIDAS Regulation encourages the Union institutions, bodies, offices and agencies "to recognise electronic identification and trust services covered by this Regulation for the purpose of administrative cooperation …" In this regard, it must be highlighted that the identification system of natural or legal persons used by the Commission (called ECAS) already features the possibility of using the notified eID means while the Commission is working on the recognition of the new trust services referred to in eIDAS.