The European Parliament and the Council adopted on 23 July 2014 a regulation on electronic identification and trust services for electronic transactions in the Internal Market (the "Regulation"). Before that, the Directive on a Community framework for electronic signatures that was adopted in December 1999 (the "E-Signatures Directive") provided EU rules relating to e-signatures but not a comprehensive EU cross-border and cross-sector framework for e-identification, authentication, signatures and related trust services.
The Regulation now intends to create an efficient and effective e-signature market in the EU to overcome the current differences in national laws and the lack of interoperability of e-signatures. It establishes the basis of the European Market for Digital Trust for secured transactions between citizens, businesses and administrative authorities, notably by focusing on:
- Electronic identification: the Regulation provides a mutual recognition and acceptance between Member States of e-identification schemes that have been notified to the Commission. It is up to the member states to choose whether they want to notify all, some or none of the electronic identification schemes used at the national level to access at least public online services or specific services. Although notification of the scheme is not mandatory, it will provide a competitive advantage to operators of the notifying state;
- Trust services (Electronic identification and signature – eIDAS): the Regulation sets out rules for cross-border electronic trust services within the EU and creates a legal framework for:
- Electronic signatures (for natural persons): creation of the qualified electronic signature, which has the same legal value of a handwritten signature;
- Electronic seals (for legal persons): creation of a new category of electronic signature – i.e. electronic seal – that may only be created by legal person;
- Electronic time stamping: legal existence of time stamps;
- Electronic delivery service: certainty of cross-border electronic delivery;
- Electronic documents admissibility: Non-discrimination paper vs. e-documents;
- Website authentication: legal existence of qualified website authentication certificates.
Although this Regulation is voluntary for market actors wishing to dispose or distribute trust products or services at the European level, suppliers of trust products or services as well as their customers and users could shortly make the transition to the new system, subject to compliance with the provisions of the Regulation.
The E-Signatures Directive is to be repealed with effect from 1 July 2016 when, with some exceptions, the Regulation will start to apply. Mandatory mutual recognition is expected to start in the second half of 2018.
Close attention to the secondary legislation (delegated acts and implementing acts) that will be enacted by the Commission in the next few months is required in order to obtain further details with respect to the implementation of the Regulation.