The new and long-awaited Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, referred to as eIDAS (the “Regulation”), introduced as of 1 July 2016 a substantial change in electronic identification and authentication without much attention from the public or the media. Among other things, the new legislation also regulates electronic signatures, previously regulated by Act no. 227/2000 Sb., on electronic signatures, and which we had been accustomed to for the past 16 years. Although Czech legislation should have been adapted to the new Regulation by 1 July 2016, Czech legislators did not manage to meet the deadline. Thus as a directly applicable source of law, the Regulation caused certain difficulties with application since being introduced into Czech law because the cited Act on Electronic Signatures remained jointly in effect with the Regulation even though they were not fully compatible.
The unsystematic, two-track regulation of the same concepts by European and Czech law was ended on 19 September 2016 by Act no. 297/2016 Sb., on trust services for electronic transactions (the “ATSET”), which was published in the Collection of Laws and immediately became effective. Among other things, the ATSET rescinds the Act on Electronic Signatures and supplements the Regulation in the necessary scope with national rules for procuring documents with electronic signatures, seals, and time stamps. In addition to the ATSET, Act no. 298/2016 Sb. was announced and came into effect, which amends dozens of existing acts.
- Electronic signatures
Under the Regulation, the highest form of an electronic signature is a qualified electronic signature, which requires the use of qualified means for the creation of electronic signatures. In practice, this means, for example, chip cards or tokens. In this respect, an exception already existed prior to the effective date of the Regulation thanks to acknowledged electronic signatures, which are possible without a chip card. Hence, owing to the ATSET, this exception will continue to be valid without limitation for the public and only up to 19 September 2018 for public authorities (defined in Section 5 of the ATSET). At least after the specified period, everyone will have the option to select whether they use the new standard of qualified electronic signatures accepted throughout the EU or whether they continue using acknowledged electronic signatures. The Regulation deems qualified signatures to be authentic handwritten signatures, which is certainly the correct approach. However, in our earlier Legal News articles, we expressed our discontent with the fact that they will not be considered as officially certified signatures.
The ATSET contains the methods for electronic legal acts between various entities that are intentionally missing from the Regulation. When dealing with public authorities, private individuals and legal entities will now be able to choose between the current acknowledged electronic signatures and new qualified signatures. The legislator opted for the reasonable, albeit not very clearly formulated approach regarding acts in private legal relations which is based on handwritten signatures and any other type of electronic signature – in other words, almost any data in electronic form (e.g. an e-mail footer), similarly to how it is handled in the Civil Code.
- Electronic seals
For electronic qualified seals, the integrity of data and the accuracy of the origin of seals on data (i.e. that a specific electronic document has been issued by a certain legal entity) applies in accordance with the Regulation. As opposed to existing electronic marks (in Czech “elektronické značky”), a legal entity may place an electronic seal on documents only if it is the originator of the document.
Legal entities must use qualified electronic seals when dealing with public authorities. However, the transitional provisions establish the possibility of signing documents with a currently known (and now formally legally non-existent) electronic mark up to 19 September 2018 in accordance with the Act on Electronic Signatures. Should you need to temporarily use electronic marks for any reason, it is important to remember that, as a specifically Czech instrument, they are not valid or effective outside the Czech Republic.
Public authorities will be required to procure qualified electronic seals for the relevant documents without exception.
- Electronic time stamps
Under the Regulation, a qualified electronic time stamp presupposes the accuracy of the data, the time, and the integrity of the data with which the time and date are associated. In this respect, the ATSET explicitly sets out an obligation for public authorities to sign electronic documents with a qualified electronic time stamp when being electronically signed or sealed. Even here, the ATSET extends the possibility of using the current form of electronic time stamps for the next two years.
- End of rebuttable presumption of authenticity
Act no. 298/2016 Sb. introduces a new change in a relatively unobtrusive manner. In addition to amending a number of acts and regulations, this act cancels the provisions that were extensively discussed in professional circles – Section 69a(5) of Act no. 499/2004 Sb. on archiving and filing services. It was these provisions that introduced the rebuttable presumption of authenticity of electronic documents. Based on this, practices were developed where the authenticity of electronic documents was derived from technical validity, and electronic documents were permanently signed with time stamps. Proponents of this approach inferred a conclusion from the concept of authenticity, according to which one time stamp should be sufficient for any period of time, and the practice of multiple stamping is no longer needed.
According to some opinions, cancellation of the presumption of authenticity should mean that electronic documents need to be actively managed and signed at regular intervals with additional time stamps in a technically appropriate manner, provided that it is not possible to use for the document the presumption of authenticity based on a secure location, pursuant to Section 562(2) of the Civil Code. We agree with this opinion.