EIDAS 2014/0910 EN

1. This Regulation applies to electronic_identification schemes that have been notified by a Member State, and to trust_service providers that are established in the Union.

2. This Regulation does not apply to the provision of trust_services that are used exclusively within closed systems resulting from national law or from agreements between a defined set of participants.

3. This Regulation does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form.

Article 17

Supervisory body

1. Member States shall designate a supervisory body established in their territory or, upon mutual agreement with another Member State, a supervisory body established in that other Member State. That body shall be responsible for supervisory tasks in the designating Member State.

Supervisory bodies shall be given the necessary powers and adequate resources for the exercise of their tasks.

2. Member States shall notify to the Commission the names and the addresses of their respective designated supervisory bodies.

3. The role of the supervisory body shall be the following:

(a)

to supervise qualified trust_service providers established in the territory of the designating Member State to ensure, through ex ante and ex post supervisory activities, that those qualified trust_service providers and the qualified trust_services that they provide meet the requirements laid down in this Regulation;

(b)

to take action if necessary, in relation to non-qualified trust_service providers established in the territory of the designating Member State, through ex post supervisory activities, when informed that those non-qualified trust_service providers or the trust_services they provide allegedly do not meet the requirements laid down in this Regulation.

4. For the purposes of paragraph 3 and subject to the limitations provided therein, the tasks of the supervisory body shall include in particular:

(a)	to cooperate with other supervisory bodies and provide them with assistance in accordance with Article 18;

(b)	to analyse the conformity assessment reports referred to in Articles 20(1) and 21(1);

(c)	to inform other supervisory bodies and the public about breaches of security or loss of integrity in accordance with Article 19(2);

(d)	to report to the Commission about its main activities in accordance with paragraph 6 of this Article;

(e)	to carry out audits or request a conformity_assessment_body to perform a conformity assessment of the qualified trust_service providers in accordance with Article 20(2);

(f)	to cooperate with the data protection authorities, in particular, by informing them without undue delay, about the results of audits of qualified trust_service providers, where personal data protection rules appear to have been breached;

(g)	to grant qualified status to trust_service providers and to the services they provide and to withdraw this status in accordance with Articles 20 and 21;

(h)	to inform the body responsible for the national trusted list referred to in Article 22(3) about its decisions to grant or to withdraw qualified status, unless that body is also the supervisory body;

(i)	to verify the existence and correct application of provisions on termination plans in cases where the qualified trust_service provider ceases its activities, including how information is kept accessible in accordance with point (h) of Article 24(2);

(j)	to require that trust_service providers remedy any failure to fulfil the requirements laid down in this Regulation.

5. Member States may require the supervisory body to establish, maintain and update a trust infrastructure in accordance with the conditions under national law.

6. By 31 March each year, each supervisory body shall submit to the Commission a report on its previous calendar year’s main activities together with a summary of breach notifications received from trust_service providers in accordance with Article 19(2).

7. The Commission shall make the annual report referred to in paragraph 6 available to Member States.

8. The Commission may, by means of implementing acts, define the formats and procedures for the report referred to in paragraph 6. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 48(2).

Article 20

Supervision of qualified trust_service providers

1. Qualified trust_service providers shall be audited at their own expense at least every 24 months by a conformity_assessment_body. The purpose of the audit shall be to confirm that the qualified trust_service providers and the qualified trust_services provided by them fulfil the requirements laid down in this Regulation. The qualified trust_service providers shall submit the resulting conformity assessment report to the supervisory body within the period of three working days after receiving it.

2. Without prejudice to paragraph 1, the supervisory body may at any time audit or request a conformity_assessment_body to perform a conformity assessment of the qualified trust_service providers, at the expense of those trust_service providers, to confirm that they and the qualified trust_services provided by them fulfil the requirements laid down in this Regulation. Where personal data protection rules appear to have been breached, the supervisory body shall inform the data protection authorities of the results of its audits.

3. Where the supervisory body requires the qualified trust_service provider to remedy any failure to fulfil requirements under this Regulation and where that provider does not act accordingly, and if applicable within a time limit set by the supervisory body, the supervisory body, taking into account, in particular, the extent, duration and consequences of that failure, may withdraw the qualified status of that provider or of the affected service 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). The supervisory body shall inform the qualified trust_service provider of the withdrawal of its qualified status or of the qualified status of the service concerned.

4. The Commission may, by means of implementing acts, establish reference number of the following standards:

(a)	accreditation of the conformity assessment bodies and for the conformity assessment report referred to in paragraph 1;

(b)	auditing rules under which conformity assessment bodies will carry out their conformity assessment of the qualified trust_service providers as referred to in paragraph 1.

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 25

Legal effects of electronic_signatures

1. An electronic_signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic_signatures.

2. A qualified electronic_signature shall have the equivalent legal effect of a handwritten signature.

3. A qualified electronic_signature based on a qualified certificate issued in one Member State shall be recognised as a qualified electronic_signature in all other Member States.

Article 31

Publication of a list of certified qualified electronic_signature creation devices

1. Member States shall notify to the Commission without undue delay and no later than one month after the certification is concluded, information on qualified electronic_signature creation devices that have been certified by the bodies referred to in Article 30(1). They shall also notify to the Commission, without undue delay and no later than one month after the certification is cancelled, information on electronic_signature creation devices that are no longer certified.

2. On the basis of the information received, the Commission shall establish, publish and maintain a list of certified qualified electronic_signature creation devices.

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

Article 47

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 30(4) shall be conferred on the Commission for an indeterminate period of time from 17 September 2014.

3. The delegation of power referred to in Article 30(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 30(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

whereas

(14) Some conditions need to be set out in this Regulation with regard to which electronic_identification means have to be recognised and how the electronic_identification schemes should be notified.
Those conditions should help Member States to build the necessary trust in each other’s electronic_identification schemes and to mutually recognise electronic_identification means falling under their notified schemes.
The principle of mutual recognition should apply if the notifying Member State’s electronic_identification scheme meets the conditions of notification and the notification was published in the Official Journal of the European Union.
However, the principle of mutual recognition should only relate to authentication for an online service.
The access to those online services and their final delivery to the applicant should be closely linked to the right to receive such services under the conditions set out in national legislation.

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(21) This Regulation should also establish a general legal framework for the use of trust_services.
However, it should not create a general obligation to use them or to install an access point for all existing trust_services.
In particular, it should not cover the provision of services used exclusively within closed systems between a defined set of participants, which have no effect on third parties.
For example, systems set up in businesses or public administrations to manage internal procedures making use of trust_services should not be subject to the requirements of this Regulation.
Only trust_services provided to the public having effects on third parties should meet the requirements laid down in the Regulation.
Neither should this Regulation cover aspects related to the conclusion and validity of contracts or other legal obligations where there are requirements as regards form laid down by national or Union law.
In addition, it should not affect national form requirements pertaining to public registers, in particular commercial and land registers.

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(31) Supervisory bodies should cooperate with data protection authorities, for example, by informing them about the results of audits of qualified trust_service providers, where personal data protection rules appear to have been breached.
The provision of information should in particular cover security incidents and personal data breaches.

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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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(49) This Regulation should establish the principle that an electronic_signature should not be denied legal effect on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic_signature.
However, it is for national law to define the legal effect of electronic_signatures, except for the requirements provided for in this Regulation according to which a qualified electronic_signature should have the equivalent legal effect of a handwritten signature.

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(53) The suspension of qualified certificates is an established operational practice of trust_service providers in a number of Member States, which is different from revocation and entails the temporary loss of validity of a certificate.
Legal certainty calls for the suspension status of a certificate to always be clearly indicated.
To that end, trust_service providers should have the responsibility to clearly indicate the status of the certificate and, if suspended, the precise period of time during which the certificate has been suspended.
This Regulation should not impose the use of suspension on trust_service providers or Member States, but should provide for transparency rules when and where such a practice is available.

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(67) Website authentication services provide a means by which a visitor to a website can be assured that there is a genuine and legitimate entity standing behind the website.
Those services contribute to the building of trust and confidence in conducting business online, as users will have confidence in a website that has been authenticated.
The provision and the use of website authentication services are entirely voluntary.
However, in order for website authentication to become a means to boosting trust, providing a better experience for the user and furthering growth in the internal market, this Regulation should lay down minimal security and liability obligations for the providers and their services.
To that end, the results of existing industry-led initiatives, for example the Certification Authorities/Browsers Forum — CA/B Forum, have been taken into account.
In addition, this Regulation should not impede the use of other means or methods to authenticate a website not falling under this Regulation nor should it prevent third country providers of website authentication services from providing their services to customers in the Union.
However, a third country provider should only have its website authentication services recognised as qualified in accordance with this Regulation, if an international agreement between the Union and the country of establishment of the provider has been concluded.

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(75) The application dates set out in this Regulation do not affect existing obligations that Member States already have under Union law, in particular under Directive 2006/123/EC.

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keyboard_tab EIDAS 2014/0910 EN

EIDAS 2014/0910 EN