Much of today’s communications in government and business environments are still paper based. To some extent,this is a result of habit and inertia: why change a process that works? However, in recent years the benefits of electronic communications in terms of cost, efficiency and user friendliness have resulted in a lot of paperwork being replaced by electronic processes. But not in all cases: sometimes, outdated legislation still stands in the way of progress.
Registered mail, time certification and archiving are clear examples: despite the fact that technologies have existed for decades to perform these functions much more reliably and efficiently through electronic means, legislation often still has a fixation on offline processes. The legal framework for registered mail – a prerequisite for many legal processes – still requires actual paper to be sent via the postal services. Archives still commonly need to retain original - often paper – documents. And no clear legal framework exists for time certification at all, either in paper or electronic environments.
Given the economic importance, it’s not surprising that several attempts have been made to update the rules, both at the Belgian and EU level. So far, none of these have come to fruition yet. With any luck, things will be different this time around, with new proposals on both levels.
Belgium’s latest venture into modernizing the legal framework
Several Belgian proposals have tried to introduce rules for electronic registered mail, electronic archiving and time stamping, including laws that were adopted in 2007 and 2011, which were both discussed in an earlier blog post here. Neither of these ultimately achieved their goals, as noted here). A new attempt was made in April 2013, with a proposal defining new rules for all three of these services, including a hybrid registered mail service, similar to the 2011 legislation.
The final proposal was adopted by Parliament on 6 November 2013, and is inserted into the Electronic Economy Code (Wetboek Elektronische Economie - Code de droit économique). Prior to entering into force however, the proposal must still be notified to the European Commission, a requirement that was overlooked with earlier initiatives. This was partially the reason for their failure to ultimately enter into force.
The new legal text incorporates the existing rules in relation to electronic signatures (without however changing their substance), and adds rules in relation to electronic time stamping, electronic registered mail (including in a hybrid format, i.e. where an electronically send mail is printed and delivered on paper if electronic delivery fails), and electronic archiving (including the conversion of paper originals into electronic form, enabling the destruction of the paper originals).
Like the earlier rules in relation to e-signatures, the other new services will exist in a basic form and in a qualified form, the latter benefiting from greater legal certainty, without however excluding the legal validity of non-qualified services. Technical requirements are settled in an annex, and qualified service providers will be supervised in the same way as qualified e-signature service providers. All in all, the proposal could be beneficial for aspiring entrants into this innovative market. Its entry into force has not yet been decided, as this will depend on the adoption of a Royal Decree.
Legislative competition from the EU
Even assuming that the new proposal becomes final and enters into force, its long term future is however not assured. At the EU level, the Commission already adopted a proposal for a Regulation on electronic identification and trust services for electronic transactions in the internal market in June 2012, roughly one year prior to the Belgian initiative. The proposal is currently winding its way through the EU legislative process, and could be adopted before the next EU elections in May.
If adopted, it would spell bad news for the Belgian initiative: the Regulation’s scope partially overlaps with that of the Belgian law, since it also contains rules on e-signatures and electronic delivery (rather than electronic registered mail), but not on electronic archiving or digitisation of paper documents. Unlike an EU Directive, an EU Regulation is directly applicable across the EU, meaning that all conflicting national laws – like some provisions of the Belgian proposal – would be immediately replaced by the European rules.
To a large extent, this won’t be too problematic, since the proposals are quite similar in scope. However, the future of concepts like hybrid mail (which don’t exist in the EU proposal) is uncertain, and some technical details may differ, since the EU legal framework is likely to reference technical standards which are absent in Belgian laws. This could prove to be burdensome for service providers, who may see legislation in relation to their services change twice over the span of two or three years.
So what will the future bring?
It’s important to note that neither the Belgian nor the European proposal have entered into force. The Belgian proposal was published in the Official Journal on 14 January 2014, and its European counterpart is still being negotiated. It can at any rate be expected that the situation will become much clearer by May or June 2014: at that time, either the EU proposal will have been adopted – meaning that the Belgian law will be overruled to some extent – or it will have failed, leaving the Belgian rules to fill the gap. Hopefully however, at least one of both proposals will provide the required legal certainty, allowing further steps in the modernisation of Belgian businesses and administrations.
Hans Graux comments:
“It is clear that legislators at the Belgian and EU level have both recognized the need for modernization of the legal framework. The downside is that these legal proposals compete to some extent, leaving service providers in uncertainty for a little longer. Hopefully, at least one of both legal frameworks prevails, allowing the law and business practices to align with technological possibilities of the 21st century.”
For further information on this legal development please contact Hans Graux at (email@example.com).
This publication does not necessarily deal with every important topic or cover every aspect of the topics with which it deals and is not designed to provide legal or other advice.