New Commission Decision on eSignature formats in the context of the Services Directive

Written by Hans Graux on , in category Rules & regulations

 

The renowned Services Directive 2006/123/EC was adopted in 2006, and aimed to facilitate market access in the EU for the types of service falling under its scope. One of the tools for achieving this goal was the requirement for Member States to establish so-called 'Points of Single Contact': websites through which service providers can obtain all relevant information on requirements for their field of activity, and that are capable of dealing with all administrative formalities without the need to contact several authorities. In short, points of single contact should function as electronic one-stop-shops for initiating services in a Member State.

Of course, this also creates significant administrative difficulties, with a key challenge being the problem of each Member State being able to accept and validate authentic electronic information originating from any other Member State. For instance, how can a Member State ensure that its point of single contact can process an electronic attestation of enrolment in a commercial register from any of the 26 other Member States? Electronic signatures also play a role in this question: with many signature standards and implementations circulating, depending on the country, document type and even place of issuing, Member States would face significant problems if they would be required to process them all.

To reduce the complexity of this challenge a little, the Commission has recently published its Decision of 25 February 2011, establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities. The Decision, which will come into effect as of 1 August 2011, takes a two-pronged approach:

  1. Member States are required to implement the necessary technical means to process electronically signed documents that service providers submit in the context of the points of single contact, and which are signed by competent authorities of other Member States with an XML or a CMS or a PDF advanced electronic signature in the BES or EPES format, in accordance with the technical specifications set out in the Annex to the Decision. In short, if a service provider submits a document issued by a government via a point of single contact (e.g. an attestation or proof of enrolment in a professional register), then the point of contact must be capable of processing the document, and may not reject it for reasons of technical incompatibility.
  2. Since this obviously does not cover the whole spectrum of signature formats, a second broader alternative is provided: if other formats are used, Member States can also make validation portals available to the public. These portals allow anyone to validate a signature solution for free using a multi-language interface, and thus offer a fairly user friendly alternative to technical alignment of signature approaches. If Member States choose to establish such portals, they are required to notify them to the Commission, so that the Commission can make their existence known. Unlike the first option however, the implementation of validation portals does not create an obligation for receiving ports of single contact to process signed documents (although finding an acceptable justification for their rejection on technical grounds may be difficult).

Thus, the Commission tries to strike a delicate balance between to two possible approaches for enabling the use of eSignatures: encouraging the alignment of technological solutions by ensuring that at least some of them have an unambiguous cross border value, and facilitating interactions between Member States outside of such alignment. Of course, the main question of interest is how this will impact the availability of signed electronic documents issued by public authorities to begin with. After all, even a perfectly clear legal framework for eDocuments would not help European businesses or the points of single contact if there are no eDocuments for them to validate. On that point, the ball is quite firmly in the court of the Member States.