To fulfill the requirements of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their member states, on the other (hereinafter referred to as the “Association Agreement”), the President of Ukraine has signed a new draft law (bill) regarding legal regulation of such an institute of social and legal relations as the provision of electronic trust services. The respective Draft Law of Ukraine no. 2155-VIII “On electronic trust services”, dated October 5, 2017 (hereinafter referred to as “Draft Law no. 2155-VIII”) was adopted by the Verkhovna Rada of Ukraine on October 5, 2017 and signed by the President of Ukraine on November 6, 2017. It shall take effect one year from the date of its publication (with the exception of Article 10 of Draft Law no. 2155-VIII, which shall enter into force on the day following the day of its publication). Draft Law no. 2155-VIII is designed for execution and as part of the Action Plan for the Implementation of Section IV of the Association Agreement, approved by Cabinet of Ministers of Ukraine Ordinance no. 847-p, dated September 17, 2014. Also, the Draft Law was intended to harmonize Ukraine’s legislation with respect to electronic trust services via Regulation (EC) N 910/2014 of the European Parliament and Council of July 23, 2014 on electronic identification and trust services in order to carry out electronic transactions in the internal market.
The purpose of Draft Law no. 2155-VIII is to legally regulate the processes that use electronic identification, not only in business processes, but also in other spheres of public life, the basic principles of the functioning of the institute of electronic trust services, the list of subjects in the field of electronic identification and electronic trust services and their status, order receipts (purchases, confirmations) of such status, the rights and obligations of legal entities, and a number of other issues. Later in this article, we offer an overview of the major innovations presented in Draft Law no. 2155-VIII.
The provisions of Article 1 of Draft Law no. 2155-VIII provides a list of terms, for which the definitions of some still have not been determined by any regulatory legal acts (such as “electronic time stamp”, “interoperability”, “Trust List” and others). Some related concepts have been delimited in order to avoid misunderstandings or conflicts (i.e. “e-service”, “electronic trust services” and others). At the same time, any other terms (concepts) adopted in the draft law, shall be used within the meaning of applicable law, including legislation with respect to electronic documents and document management.
Thus, in the text of Draft Law no. 22155-VIII (Paragraph 7 Part 1 Article 1), “electronic services” means any service that is provided by an information and telecommunications system. “Electronic trust services” is defined as a service provided to ensure that the electronic interaction between two or more entities, who trust providers of electronic trust services according to the presentation of such services. Following from the provisions of the Draft Law, the use of electronic trust services shall, as a rule, be on a contractual basis, providing the freedom to choose the service provider in the manner stipulated for the use of qualified electronic trust services (assuming the transfer, use, and receipt, etc. of electronic data, the paper analogues of which should include a handwritten signature in accordance with the law), or electronic trust services (electronic data, analogues of which on paper should not contain handwritten signature). The results of the qualified electronic trust services should be recognized by all state institutions and by other users of these services. At the same time, the use of electronic trust services does not change the order of transactions prescribed by law. Transactions subject to notarization and/ or state registration in cases stipulated by law, are completed in electronic form only with the use of qualified electronic trust services in the prescribed manner (Paragraph 6 of Article 17 of Draft Law no. 2155-VIII).
As regards the subjective composition of legal relations with respect to the use of electronic trust services, participants in legal relations in the sphere of electronic identification and electronic trust services are, as individuals and legal entities, operating as users, sole proprietors or legal entities acting as a service provider. According to Draft Law no. 2155-VIII, users of electronic trust services shall include individuals creating a digital signature (subscribers) and legal entities creating an electronic seal (creators of electronic seals), senders and recipients of electronic data, as well as other individuals and legal entities, receiving services regulated by the provisions of Draft Law no. 2155-VIII. For providers of electronic trust services, the provisions of Draft Law no. 2155-VIII extend to individual entrepreneurs and legal entities that provide one or more electronic trust services.
Under the provisions of Draft Law no. 2155-VIII, the provider of electronic trust services more may have enjoy a detailed legal status of qualified supplier of electronic trust services (i.e. the provision of that service is performed in accordance with the requirements of Draft Law no. 2155-VIII and shall be subject to the procedure of assessing conformity with the provisions of national and/ or international legal standards). Legal relationships between users and providers with respect to electronic identification and electronic trust services are based on a contractual basis and the principles of voluntariness and freedom in the choice of contractor. No less important is the fact that the rights and legitimate interests of users of such services are protected on the basis and in accordance with consumer protection legislation, which allows the use of adequate means of protection (Part 3 of Article 1 of the Draft Law). Yet other regulations provide the detailed requirements for the production of their work.
If we talk about recognition of foreign electronic trust services, the provisions of Draft Law no. 2155-VIII have provided the basic premise of this recognition. Namely, a qualified provider of electronic trust services in the relevant foreign state must comply with the requirements of Draft Law no. 2155-VIII. In turn, this should be validated by an sanctioned certifying authority (the Ministry of Justice of Ukraine and other bodies) according to the procedure established by law and then entered into the trust list.
Based on the above review of the provisions of Draft Law no. 2155-VIII, we hope that the innovations introduced in this bill will be fully realized.
Author: Iryna Kabachna