The Legal and Market Aspects of Electronic Signatures

DG Information Society and Media
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The European Commission requested a study on the legal and practial issues concerning the implmentation of EU Directive 1999/93 of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (the “Directive”) and on the practical usage of electronic signatures and related services on the European market.

(1.1 Assignment and Methodology)

The study team discovered that most of the EU Member States have, more or less faithfully, transposed the Directive into national legislation. In addition, many of the non-EU countries surveyed have based their own electronic signatures and delivery of signature related services legislation on that of the EU Directive. From technical point of view the Directive has even influenced international standardization initiatives, such as the IETEF standardization work on Qualified Certificates. It is clear that the Directive has influenced legal and technical activities outside of the European Union boundaries. Remarkably, new terminology introduced by the Directive (especially Qualified Certificate, Advanced Electronic Signature, Certification Service Provider) has been taken on board by the EEA countries, Switzerland, the Accession and the Candidate countries.

Althought the broad lines of the Directive have been respected by the Member States when trasposing the Directive, a number of issues have nevertheless been identified as problematic. These problems can mainly be attributed to a misinterpretation of the Directive's wording, which in turn leads to divergences in national laws and/or divergences in the practical application of the rules.

(1.2.1 Findings)

Our first recommendation is not to amend the Directive. Such amendments would have to be considered as an ultimate solution, only to be used when all other measures are deemed to be insufficient. Amending the Directive is a long and cumbersome operation that should be avoided if at all possible. As with all EU Directives, the Electronic Signature Directive is by no means a perfect legal text. It is a compromise which has been reached after long and difficult negotiations between 15 Member States all of whome have very divergent views on these issues. Our main conclusion is that the text of the Directive is adequate enough to serve its purpose in the near future but that it needs re-interpretation and clarification.

(Recommendations, Introduction)