keyboard_tab EIDAS 2014/0910 EN

(2) This regulation seeks to enhance trust in electronic transactions in the internal market by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities, thereby increasing the effectiveness of public and private online services, electronic business and electronic commerce in the Union.

(3) Directive 1999/93/EC of the European Parliament and of the Council (3), dealt with electronic_signatures without delivering a comprehensive cross-border and cross-sector framework for secure, trustworthy and easy-to-use electronic transactions.

  This regulation enhances and expands the acquis of that Directive.

(11) This regulation should be applied in full compliance with the principles relating to the protection of personal data provided for in Directive 95/46/EC of the European Parliament and of the Council (7).

  In this respect, having regard to the principle of mutual recognition established by this regulation, authentication for an online service should concern processing of only those identification data that are adequate, relevant and not excessive to grant access to that service online.

  Furthermore, requirements under Directive 95/46/EC concerning confidentiality and security of processing should be respected by trust_service providers and supervisory bodies.

(12) One of the objectives of this regulation is to remove existing barriers to the cross-border use of electronic_identification means used in the Member States to authenticate, for at least public services.

  This regulation does not aim to intervene with regard to electronic identity management systems and related infrastructures established in Member States.

  The aim of this regulation is to ensure that for access to cross-border online services offered by Member States, secure electronic_identification and authentication is possible.

(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.

(16) Assurance levels should characterise the degree of confidence in electronic_identification means in establishing the identity of a person, thus providing assurance that the person claiming a particular identity is in fact the person to which that identity was assigned.

  The assurance level depends on the degree of confidence that electronic_identification means provides in claimed or asserted identity of a person taking into account processes (for example, identity proofing and verification, and authentication), management activities (for example, the entity issuing electronic_identification means and the procedure to issue such means) and technical controls implemented.

  Various technical definitions and descriptions of assurance levels exist as the result of Union-funded Large-Scale Pilots, standardisation and international activities.

  In particular, the Large-Scale Pilot STORK and ISO 29115 refer, inter alia, to levels 2, 3 and 4, which should be taken into utmost account in establishing minimum technical requirements, standards and procedures for the assurances levels low, substantial and high within the meaning of this regulation, while ensuring consistent application of this regulation in particular with regard to assurance level high related to identity proofing for issuing qualified certificates.

  The requirements established should be technology-neutral.

  It should be possible to achieve the necessary security requirements through different technologies.

(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.

(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.

(22) In order to contribute to their general cross-border use, it should be possible to use trust_services as evidence in legal proceedings in all Member States.

  It is for the national law to define the legal effect of trust_services, except if otherwise provided in this regulation.

(23) To the extent that this regulation creates an obligation to recognise a trust_service, such a trust_service may only be rejected if the addressee of the obligation is unable to read or verify it due to technical reasons lying outside the immediate control of the addressee.

  However, that obligation should not in itself require a public body to obtain the hardware and software necessary for the technical readability of all existing trust_services.

(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.

(25) Member States should remain free to define other types of trust_services in addition to those making part of the closed list of trust_services provided for in this regulation, for the purpose of recognition at national level as qualified trust_services.

(26) Because of the pace of technological change, this regulation should adopt an approach which is open to innovation.

(27) This regulation should be technology-neutral.

  The legal effects it grants should be achievable by any technical means provided that the requirements of this regulation are met.

(30) Member States should designate a supervisory body or supervisory bodies to carry out the supervisory activities under this regulation.

  Member States should also be able to decide, upon a mutual agreement with another Member State, to designate a supervisory body in the territory of that other Member State.

(35) All trust_service providers should be subject to the requirements of this regulation, in particular those on security and liability to ensure due diligence, transparency and accountability of their operations and services.

  However, taking into account the type of services provided by trust_service providers, it is appropriate to distinguish as far as those requirements are concerned between qualified and non-qualified trust_service providers.

(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.

(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.

(39) To enable the Commission and the Member States to assess the effectiveness of the breach notification mechanism introduced by this regulation, supervisory bodies should be requested to provide summary information to the Commission and to European Union Agency for Network and Information Security (ENISA).

(40) To enable the Commission and the Member States to assess the effectiveness of the enhanced supervision mechanism introduced by this regulation, supervisory bodies should be requested to report on their activities.

  This would be instrumental in facilitating the exchange of good practice between supervisory bodies and would ensure the verification of the consistent and efficient implementation of the essential supervision requirements in all Member States.

(43) In order to ensure the compliance of qualified trust_service providers and the services they provide with the requirements set out in this regulation, a conformity assessment should be carried out by a conformity_assessment_body and the resulting conformity assessment reports should be submitted by the qualified trust_service providers to the supervisory body.

  Whenever the supervisory body requires a qualified trust_service provider to submit an ad hoc conformity assessment report, the supervisory body should respect, in particular, the principles of good administration, including the obligation to give reasons for its decisions, as well as the principle of proportionality.

  Therefore, the supervisory body should duly justify its decision to require an ad hoc conformity assessment.

(44) This regulation aims to ensure a coherent framework with a view to providing a high level of security and legal certainty of trust_services.

  In this regard, when addressing the conformity assessment of products and services, the Commission should, where appropriate, seek synergies with existing relevant European and international schemes such as the regulation (EC) No 765/2008 of the European Parliament and of the Council (9) which sets out the requirements for accreditation of conformity assessment bodies and market surveillance of products.

(47) Confidence in and convenience of online services are essential for users to fully benefit and consciously rely on electronic services.

  To this end, an EU trust mark should be created to identify the qualified trust_services provided by qualified trust_service providers.

  Such an EU trust mark for qualified trust_services would clearly differentiate qualified trust_services from other trust_services thus contributing to transparency in the market.

  The use of an EU trust mark by qualified trust_service providers should be voluntary and should not lead to any requirement other than those provided for in this regulation.

(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.

(52) The creation of remote electronic_signatures, where the electronic_signature creation environment is managed by a trust_service provider on behalf of the signatory, is set to increase in the light of its multiple economic benefits.

  However, in order to ensure that such electronic_signatures receive the same legal recognition as electronic_signatures created in an entirely user-managed environment, remote electronic_signature service providers should apply specific management and administrative security procedures and use trustworthy systems and products, including secure electronic communication channels, in order to guarantee that the electronic_signature creation environment is reliable and is used under the sole control of the signatory.

  Where a qualified electronic_signature has been created using a remote electronic_signature creation device, the requirements applicable to qualified trust_service providers set out in this regulation should apply.

(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.

(54) Cross-border interoperability and recognition of qualified certificates is a precondition for cross-border recognition of qualified electronic_signatures.

  Therefore, qualified certificates should not be subject to any mandatory requirements exceeding the requirements laid down in this regulation.

  However, at national level, the inclusion of specific attributes, such as unique identifiers, in qualified certificates should be allowed, provided that such specific attributes do not hamper cross-border interoperability and recognition of qualified certificates and electronic_signatures.

(56) This regulation should lay down requirements for qualified electronic_signature creation devices to ensure the functionality of advanced electronic_signatures.

  This regulation should not cover the entire system environment in which such devices operate.

  Therefore, the scope of the certification of qualified signature creation devices should be limited to the hardware and system software used to manage and protect the signature creation data created, stored or processed in the signature creation device.

  As detailed in relevant standards, the scope of the certification obligation should exclude signature creation applications.

(61) This regulation should ensure the long-term preservation of information, in order to ensure the legal validity of electronic_signatures and electronic_seals over extended periods of time and guarantee that they can be validated irrespective of future technological changes.

(62) In order to ensure the security of qualified electronic_time_stamps, this regulation should require the use of an advanced electronic_seal or an advanced electronic_signature or of other equivalent methods.

  It is foreseeable that innovation may lead to new technologies that may ensure an equivalent level of security for time stamps.

  Whenever a method other than an advanced electronic_seal or an advanced electronic_signature is used, it should be up to the qualified trust_service provider to demonstrate, in the conformity assessment report, that such a method ensures an equivalent level of security and complies with the obligations set out in this regulation.

(63) Electronic documents are important for further development of cross-border electronic transactions in the internal market.

  This regulation should establish the principle that an electronic_document should not be denied legal effect on the grounds that it is in an electronic form in order to ensure that an electronic transaction will not be rejected only on the grounds that a document is in electronic form.

(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.

(69) The Union institutions, bodies, offices and agencies are encouraged to recognise electronic_identification and trust_services covered by this regulation for the purpose of administrative cooperation capitalising, in particular, on existing good practices and the results of ongoing projects in the areas covered by this regulation.

(70) In order to complement certain detailed technical aspects of this regulation in a flexible and rapid manner, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of criteria to be met by the bodies responsible for the certification of qualified electronic_signature creation devices.

  It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level.

  The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(71) In order to ensure uniform conditions for the implementation of this regulation, implementing powers should be conferred on the Commission, in particular for specifying reference numbers of standards the use of which would raise a presumption of compliance with certain requirements laid down in this regulation.

  Those powers should be exercised in accordance with regulation (EU) No 182/2011 of the European Parliament and of the Council (12).

(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.

(76) Since the objectives of this regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

  In accordance with the principle of proportionality, as set out in that Article, this regulation does not go beyond what is necessary in order to achieve those objectives.

(77) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of regulation (EC) No 45/2001 of the European Parliament and of the Council (13) and delivered an opinion on 27 September 2012 (14),