EIDAS 2014/0910 EN

1. There shall be no restriction on the provision of trust_services in the territory of a Member State by a trust_service provider established in another Member State for reasons that fall within the fields covered by this Regulation.

2. Products and trust_services that comply with this Regulation shall be permitted to circulate freely in the internal market.

Article 11

Liability

1. The notifying Member State shall be liable for damage caused intentionally or negligently to any natural or legal person due to a failure to comply with its obligations under points (d) and (f) of Article 7 in a cross-border transaction.

2. The party issuing the electronic_identification means shall be liable for damage caused intentionally or negligently to any natural or legal person due to a failure to comply with the obligation referred to in point (e) of Article 7 in a cross-border transaction.

3. The party operating the authentication procedure shall be liable for damage caused intentionally or negligently to any natural or legal person due to a failure to ensure the correct operation of the authentication referred to in point (f) of Article 7 in a cross-border transaction.

4. Paragraphs 1, 2 and 3 shall be applied in accordance with national rules on liability.

5. Paragraphs 1, 2 and 3 are without prejudice to the liability under national law of parties to a transaction in which electronic_identification means falling under the electronic_identification scheme notified pursuant to Article 9(1) are used.

Article 13

Liability and burden of proof

1. Without prejudice to paragraph 2, trust_service providers shall be liable for damage caused intentionally or negligently to any natural or legal person due to a failure to comply with the obligations under this Regulation.

The burden of proving intention or negligence of a non-qualified trust_service provider shall lie with the natural or legal person claiming the damage referred to in the first subparagraph.

The intention or negligence of a qualified trust_service provider shall be presumed unless that qualified trust_service provider proves that the damage referred to in the first subparagraph occurred without the intention or negligence of that qualified trust_service provider.

2. Where trust_service providers duly inform their customers in advance of the limitations on the use of the services they provide and where those limitations are recognisable to third parties, trust_service providers shall not be liable for damages arising from the use of services exceeding the indicated limitations.

3. Paragraphs 1 and 2 shall be applied in accordance with national rules on liability.

Article 21

Initiation of a qualified trust_service

1. Where trust_service providers, without qualified status, intend to start providing qualified trust_services, they shall submit to the supervisory body a notification of their intention together with a conformity assessment report issued by a conformity_assessment_body.

2. The supervisory body shall verify whether the trust_service provider and the trust_services provided by it comply with the requirements laid down in this Regulation, and in particular, with the requirements for qualified trust_service providers and for the qualified trust_services they provide.

If the supervisory body concludes that the trust_service provider and the trust_services provided by it comply with the requirements referred to in the first subparagraph, the supervisory body shall grant qualified status to the trust_service provider and the trust_services it provides and inform the body referred to in Article 22(3) for the purposes of updating the trusted lists referred to in Article 22(1), not later than three months after notification in accordance with paragraph 1 of this Article.

If the verification is not concluded within three months of notification, the supervisory body shall inform the trust_service provider specifying the reasons for the delay and the period within which the verification is to be concluded.

3. Qualified trust_service providers may begin to provide the qualified trust_service after the qualified status has been indicated in the trusted lists referred to in Article 22(1).

4. The Commission may, by means of implementing acts, define the formats and procedures for the purpose of paragraphs 1 and 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).

Article 24

Requirements for qualified trust_service providers

1. When issuing a qualified certificate for a trust_service, a qualified trust_service provider shall verify, by appropriate means and in accordance with national law, the identity and, if applicable, any specific attributes of the natural or legal person to whom the qualified certificate is issued.

The information referred to in the first subparagraph shall be verified by the qualified trust_service provider either directly or by relying on a third party in accordance with national law:

(a)	by the physical presence of the natural person or of an authorised representative of the legal person; or

(b)

remotely, using electronic_identification means, for which prior to the issuance of the qualified certificate, a physical presence of the natural person or of an authorised representative of the legal person was ensured and which meets the requirements set out in Article 8 with regard to the assurance levels ‘substantial’ or ‘high’; or

(c)	by means of a certificate of a qualified electronic_signature or of a qualified electronic_seal issued in compliance with point (a) or (b); or

(d)	by using other identification methods recognised at national level which provide equivalent assurance in terms of reliability to physical presence. The equivalent assurance shall be confirmed by a conformity_assessment_body.

2. A qualified trust_service provider providing qualified trust_services shall:

(a)	inform the supervisory body of any change in the provision of its qualified trust_services and an intention to cease those activities;

(b)

employ staff and, if applicable, subcontractors who possess the necessary expertise, reliability, experience, and qualifications and who have received appropriate training regarding security and personal data protection rules and shall apply administrative and management procedures which correspond to European or international standards;

(c)	with regard to the risk of liability for damages in accordance with Article 13, maintain sufficient financial resources and/or obtain appropriate liability insurance, in accordance with national law;

(d)	before entering into a contractual relationship, inform, in a clear and comprehensive manner, any person seeking to use a qualified trust_service of the precise terms and conditions regarding the use of that service, including any limitations on its use;

(e)	use trustworthy systems and products that are protected against modification and ensure the technical security and reliability of the processes supported by them;

(f)

use trustworthy systems to store data provided to it, in a verifiable form so that:

(i)	they are publicly available for retrieval only where the consent of the person to whom the data relates has been obtained,

(ii)	only authorised persons can make entries and changes to the stored data,

(iii)

the data can be checked for authenticity;

(g)	take appropriate measures against forgery and theft of data;

(h)

record and keep accessible for an appropriate period of time, including after the activities of the qualified trust_service provider have ceased, all relevant information concerning data issued and received by the qualified trust_service provider, in particular, for the purpose of providing evidence in legal proceedings and for the purpose of ensuring continuity of the service. Such recording may be done electronically;

(i)	have an up-to-date termination plan to ensure continuity of service in accordance with provisions verified by the supervisory body under point (i) of Article 17(4);

(j)	ensure lawful processing of personal data in accordance with Directive 95/46/EC;

(k)	in case of qualified trust_service providers issuing qualified certificates, establish and keep updated a certificate database.

3. If a qualified trust_service provider issuing qualified certificates decides to revoke a certificate, it shall register such revocation in its certificate database and publish the revocation status of the certificate in a timely manner, and in any event within 24 hours after the receipt of the request. The revocation shall become effective immediately upon its publication.

4. With regard to paragraph 3, qualified trust_service providers issuing qualified certificates shall provide to any relying_party information on the validity or revocation status of qualified certificates issued by them. This information shall be made available at least on a per certificate basis at any time and beyond the validity period of the certificate in an automated manner that is reliable, free of charge and efficient.

5. The Commission may, by means of implementing acts, establish reference numbers of standards for trustworthy systems and products, which comply with the requirements under points (e) and (f) of paragraph 2 of this Article. Compliance with the requirements laid down in this Article shall be presumed where trustworthy systems and products meet those standards. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).

SECTION 4

Electronic signatures

Article 32

Requirements for the validation of qualified electronic_signatures

1. The process for the validation of a qualified electronic_signature shall confirm the validity of a qualified electronic_signature provided that:

(a)	the certificate that supports the signature was, at the time of signing, a qualified certificate for electronic_signature complying with Annex I;

(b)	the qualified certificate was issued by a qualified trust_service provider and was valid at the time of signing;

(c)	the signature validation_data corresponds to the data provided to the relying_party;

(d)	the unique set of data representing the signatory in the certificate is correctly provided to the relying_party;

(e)	the use of any pseudonym is clearly indicated to the relying_party if a pseudonym was used at the time of signing;

(f)	the electronic_signature was created by a qualified electronic_signature creation device;

(g)	the integrity of the signed data has not been compromised;

(h)	the requirements provided for in Article 26 were met at the time of signing.

2. The system used for validating the qualified electronic_signature shall provide to the relying_party the correct result of the validation process and shall allow the relying_party to detect any security relevant issues.

3. The Commission may, by means of implementing acts, establish reference numbers of standards for the validation of qualified electronic_signatures. Compliance with the requirements laid down in paragraph 1 shall be presumed where the validation of qualified electronic_signatures meets those standards. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).

whereas

(18) This Regulation should provide for the liability of the notifying Member State, the party issuing the electronic_identification means and the party operating the authentication procedure for failure to comply with the relevant obligations under this Regulation.
However, this Regulation should be applied in accordance with national rules on liability.
Therefore, it does not affect those national rules on, for example, definition of damages or relevant applicable procedural rules, including the burden of proof.

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(24) Member States may maintain or introduce national provisions, in conformity with Union law, relating to trust_services as far as those services are not fully harmonised by this Regulation.
However, trust_services that comply with this Regulation should circulate freely in the internal market.

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(36) Establishing a supervisory regime for all trust_service providers should ensure a level playing field for the security and accountability of their operations and services, thus contributing to the protection of users and to the functioning of the internal market.
Non-qualified trust_service providers should be subject to a light touch and reactive ex post supervisory activities justified by the nature of their services and operations.
The supervisory body should therefore have no general obligation to supervise non-qualified service providers.
The supervisory body should only take action when it is informed (for example, by the non-qualified trust_service provider itself, by another supervisory body, by a notification from a user or a business partner or on the basis of its own investigation) that a non-qualified trust_service provider does not comply with the requirements of this Regulation.

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(37) This Regulation should provide for the liability of all trust_service providers.
In particular, it establishes the liability regime under which all trust_service providers should be liable for damage caused to any natural or legal person due to failure to comply with the obligations under this Regulation.
In order to facilitate the assessment of financial risk that trust_service providers might have to bear or that they should cover by insurance policies, this Regulation allows trust_service providers to set limitations, under certain conditions, on the use of the services they provide and not to be liable for damages arising from the use of services exceeding such limitations.
Customers should be duly informed about the limitations in advance.
Those limitations should be recognisable by a third party, for example by including information about the limitations in the terms and conditions of the service provided or through other recognisable means.
For the purposes of giving effect to those principles, this Regulation should be applied in accordance with national rules on liability.
Therefore, this Regulation does not affect those national rules on, for example, definition of damages, intention, negligence, or relevant applicable procedural rules.

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keyboard_tab EIDAS 2014/0910 EN

EIDAS 2014/0910 EN