EU adopts new regulation on cross-border electronic identification and e-signatures

The General Affairs Council, on 23 July 2013, adopted a regulation of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the Internal Market. Until the new regulation, the E-Signatures Directive (1999/93/EC) provided the only EU rules relating to e-signatures and said nothing about trust services.  The E-Signatures Directive is to be repealed with effect from July 2016 when, with some exceptions, the new regulation will start to apply.

The new regulation sets out rules for cross-border electronic trust services (electronic identification schemes) within the EU (the new rules will only cover cross-border aspects of electronic identification; issuing means of electronic identification remains a national prerogative. The general position at English law remains unchanged – sophisticated electronic signatures are not necessary for the formation of a binding contract) and creates a legal framework for:

• electronic signatures,
• seals and time stamps,
• electronic documents,
• electronic registered delivery services, and
• certificate services for website authentication.

The regulation is broader than just e-commerce.  According to the Council’s press release, the new regulation will provide “a common foundation for secure electronic interaction between businesses, citizens and public authorities.  It seeks to increase the effectiveness of public and private online services, electronic business and electronic commerce in the EU and to enhance trust in electronic transactions in the internal market. Mutual recognition of electronic identification and authentication is vital, for instance in making cross-border healthcare for European citizens a reality.”

The rules provide a system for mutual recognition of electronic identification.
As the press release states, “member states are required to recognise, under certain conditions, means of electronic identification of natural and legal persons falling under another member state’s electronic identification scheme which has 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 national level to access at least public online services or specific services.”

Member states may decide to join the scheme for recognising each other’s notified e-identification means as soon as the necessary implementing acts are in place, which is expected to take place in the second half of 2015. Mandatory mutual recognition is expected to start in the second half of 2018.

The Council expects the new rules to give rise to opportunities for private suppliers of electronic identities.  An EU trust mark will be created to identify trust services which meet certain strict requirements.