LuxTrust presentation on Electronic Signatures

Guest speaker

ANNE REULAND Chief Legal and Regulatory Officer

Member of the Executive Committee

LuxTrust S.A.

JULY

2019 1

Discussion topic

Electronic signature: an introduction

LuxTrust presentation on Electronic Signatures

ELECTRONIC SIGNATURE

Anne Reuland 1 July 2019

LuxTrust presentation on Electronic Signatures

EU framework: • eIDAS Regulation (EU/910/2014) on electronic identifcation

establishes a set of rules for electronic identification and trust services for electronic transactions in the internal market

• ETSI technical standards

Luxembourg framework: • Law of 14 August 2000 on e-commerce amending the Civil Code

• Grand Ducal Regulation of 1 June 2001 • Draft law amending the law of 14 August 2000 to comply with eIDAS

LEGAL FRAMEWORK

LuxTrust presentation on Electronic Signatures

As defined by the eIDAS Regulation: data in electronic form

attached to or logically associated with other data in electronic form

used by the signatory to sign

WHAT IS AN ELECTRONIC SIGNATURE ?

LuxTrust presentation on Electronic Signatures

WHAT IS AN ELECTRONIC SIGNATURE ?

LuxTrust presentation on Electronic Signatures

WHAT IS AN ELECTRONIC SIGNATURE ?

LuxTrust presentation on Electronic Signatures

WHAT IS AN ELECTRONIC SIGNATURE ?

Crypthographic signatures

LuxTrust presentation on Electronic Signatures

ELECTRONIC SIGNATURE TYPES

ADVANCED QUALIFIED SIMPLE

LuxTrust presentation on Electronic Signatures

ADVANCED ELECTRONIC SIGNATURE

it is uniquely linked to the signatory

it is capable of identifying the signatory

it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his/her sole control

it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable

LuxTrust presentation on Electronic Signatures

QUALIFIED ELECTRONIC SIGNATURE (1/3)

An advanced electronic signature

created by a qualified electronic signature creation device

based on a qualified certificate for electronic signatures

LuxTrust presentation on Electronic Signatures

QUALIFIED ELECTRONIC SIGNATURES (2/3) QUALIFIED CERTIFICATE

• An electronic signature certificate:

• an electronic attestation

• which links electronic signature validation data to a natural person

• confirms at least the name or the pseudonym of that person

• It is delivered by a Qualified Trust Service Provider

LuxTrust presentation on Electronic Signatures

QUALIFIED ELECTRONIC SIGNATURE (3/3)

A qualified electronic signatures requires to verify the identity of the person : • by the physical presence of the natural person or • remotely, using electronic identification means, for which prior to the issuance of the

qualified certificate, a physical presence of the natural person or of an authorised representative of the legal person was ensured

or • by means of a certificate of a qualified electronic signature based on one of above

indicated identifications or • by using other identification methods recognized at national level which provide

equivalent assurance in terms of reliability to physical presence. The equivalent assurance shall be confirmed by a conformity assessment body.

Registration Authority Delegated Registration Authority

Apostille du Notaire Remote ID Video identification

LuxTrust presentation on Electronic Signatures

LEGAL EFFECT (1/4)

Signature Equivalence Evidence

Simple prima facie evidence

- Up to the judge - Validity to be established by the claimant

Advanced prima facie evidence

- Up to the judge - Validity to be established by the claimant - the e-signature system may provide

elements to demonstrate trustworthyness

Qualified = handwritten (“wet ink”) signature

- Validity is presumed

• All forms of e-signatures are valid => evidence

• In commercial matters, evidence can be brought by any means.

• In civil matters, and if the dispute exceeds EUR 2,500, written evidence is necessary.

LuxTrust presentation on Electronic Signatures

LEGAL EFFECT (2/4)

• limited to the conclusion of private deeds (≠ notarial deeds)

• An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

• A qualified electronic signature shall have the same legal effect of a handwritten signature.

• Mutual recognition of qualified electronic signatures across EU Member States

LuxTrust presentation on Electronic Signatures

LEGAL EFFECT (3/4) ADVANCED VS QUALIFIED

Simple, advanced, qualified electronic signatures: which one to choose ? • Advanced : reportedly easy to create but legal effect depends on the national

framework

• Qualified : reportedly more difficult to create but

• recognised as a qualified electronic signature in all other Member States • Trust Service Provider responsability & liability • Supervision by national supervisory body

LuxTrust presentation on Electronic Signatures

LEGAL EFFECT (4/4) CONTRACTUAL ADVICE

• Parties to agree on rules of evidence

• Contract shall be submited to the law of an EU Member State:

so that eiDAS applies Law to be chosen according to value given to simple / advanced e-

signature

LuxTrust presentation on Electronic Signatures

ELECTRONIC SEAL (1/2)

Legal effects of electronic seals (art. 35 eIDAS) • non-discrimination

• a qualified electronic seal shall enjoy the presumption of integrity of the data and of correctness of the origin of that data to which the qualified electronic seal is linked

• mutual recognition of qualified electronic seals across Member States

Requirements • it is uniquely linked to the creator of the seal; • it is capable of identifying the creator of the seal;

• it is created using electronic seal creation data that the creator of the seal can, with a high level of confidence under its control, use for electronic seal creation;

• it is linked to the data to which it relates in such a way that any subsequent change in the data is detectable; and

• For qualified seal, see additionnal conditions as under qualified signature.

LuxTrust presentation on Electronic Signatures

ELECTRONIC SEAL (2/2) Distinction with electronic signature

Use cases

• e-invoices, statement of accounts, blood test results • legal document (NDA, contract) before it is signed • ...

e-Signature (advanced, qualified)

e-Seal

Natural persons Legal persons

Integrity Integrity

Authenticity Authenticity

Consent

Manual Automated

LuxTrust presentation on Electronic Signatures

QUESTION & ANSWERS

THANK YOU !

Anne Reuland

Chief Legal Officer

anne.reuland@luxtrust.lu