Critical Observations on the Proposed EU Regulation for Electronic

XVI GENERAL ASSEMBLY Brussels, 4th December 2012 Scotland House: Rond-Point Schumann, 6 (8th floor)

Critical Observations on the Proposed EU Regulation for Electronic Identification and Trust Services for Electronic Transactions in the Internal Market

[email protected]

Question (1) In the Netherlands, as in other European Member States, the civil law notary sends electronic copies of notarial deeds, signed with the use of qualified electronic signatures (QES), to the Registrar. In some countries (like in Spain), the registrars issue the qualified certificates supporting those QES themselves. In other countries (e.g.: the Netherlands), the registrars do not issue qualified certificates themselves. These registrars rely on the services by a small number of Trusted Service Providers (TSP`s).

Question (2) Notaries and other parties (e.g. bailiffs) do not use a qualified certificate, issued to themselves as a private person, to send a copy of the deed (or seizure). They use a qualified certificate , issued to them as a notary/bailiff). In other words, there is a specific 'role': 'notary', 'candidate-notary', 'bailiff' added to the certificate.

Question (3) The TSP`s(in the Netherlands), while issuing a QES/ Certificate to a notary, do check whether a notary truly is a notary. When issuing a qualified certificate to a (candidate) notary, the TSP asks the notary for specific proof. The TSP wants to know whether the notary truly is a notary, before issuing a qualified certificate with the role: ‘notary’ to the notary concerned.

Question (4) Once the qualified certificate is issued, the TSP`s, do not check whether a notary still is a notary or whether the notary is suspended or not. It is possible that the notary is suspended after the issuance of the certificate and that the certificate is still in use because the TSP does not know about the suspension. In fact, quite recently I found out that a notary used his qualified certificate, while being suspended for several weeks. Right now I am starting a disciplinary case against the notary.

Traditional Context: Sign and Transmit

13/04/2015

7

At the end of last century, people were asking themselves:

How can we sign and transmit documents in the digital environment?

Since last decade we have understood that it makes no sense to sign and to transmit electronic documents

Digital evidence

13/04/2015

13

The relevant question is: what happened ?

13/04/2015

14

In the context of digital processes we produce evidence by registering what happens.

Not by exchanging signed documents!

13/04/2015

15

Now back to our initial question …

Policy Enforcement Model Action on application DENIED

User Action on application

Policy retrieval

Action on application PERMITTED

Policy Enforcement ( PEP ) Decision request

Application

Decision reply Information request/ reply

Policy Decision (PDP) Information request/ reply

Policy management

Policy Administration ( PAP )

Policy Information ( PIP )

Policy Information ( PIP )

Manager

Policy repository Authentic source

Authentic source

Transition

Transmission of electronically signed documents

Jos Dumortier K.U.Leuven / iMinds Sint-Michielsstraat 6 B-3000 Leuven (t) +32 (0)16 32 51 49 www.icri.be / [email protected]

Jos Dumortier time.lex - Information & Technology Law Congresstraat 35 B-1000 Brussel (t) +32 (0)2 229 19 47 www.timelex.eu / [email protected]

13/04/2015

Bull Executive Roundtable - Legal Digital Archiving

19