Recognition of qualified electronic trust services and implementation of European Union legislation in the field of electronic identification

Subpoint "a" of paragraph 1 of Article 140, Part 6, Chapter 6, Chapter IV 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 hand, stipulates that the parties support dialogue on issues regulation of electronic commerce, which includes, inter alia, in particular the issue of recognition of electronic signature certificates issued to the public, and promotion of the development of cross-border certification services.

In accordance with Addendum XVII-3 to Chapter 6 of Chapter IV of the Association Agreement, the approximation of the legislation of Ukraine to the law of the European Union is envisaged, in particular, to the provisions of Directive No. 1999/93/EC of the European Parliament and of the Council of December 13, 1999 on electronic signatures, which is applied in within the borders of the Community.

The Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Conclusion of an Agreement between Ukraine and the European Union on Mutual Recognition of Qualified Electronic Trust Services and Implementation of European Union Legislation in the Field of Electronic Identification", adopted on December 1, 2022. fully enters into force on 12/31/2023.

The purpose of its adoption is to speed up the integration of Ukraine into the Single Digital Market of the European Union, as well as to bring the provisions of national legislation as close as possible to European requirements in the fields of electronic identification and electronic trust services ( Explanatory note to the project ).

However, from 01.01.2023 its provisions that supplement the Law of Ukraine "On Electronic Trust Services" are already in effect, namely, the second part in Art. 22 and Chapter VII   "Final and transitional provisions" clause 6-1.

What is currently in effect

According to Part 2 of Art. 22 of the Law of Ukraine "On Electronic Trust Services" , the identification of a person who applied for the service of generating a qualified public key certificate is carried out in one of the following ways:

1) in the personal presence of a natural person, a natural person - an entrepreneur or an authorized representative of a legal entity - based on the results of checking the information (data) about the person obtained in accordance with the procedure established by law from the Unified State Demographic Register, according to the passport of a citizen of Ukraine or other documents issued in accordance with legislation on the Unified State Demographic Register and on documents certifying a person, confirming the citizenship of Ukraine or the special status of a person;

2) remotely (without the person's personal presence), with the simultaneous use of a means of electronic identification with a high or medium level of trust, previously issued to an individual, an individual entrepreneur or an authorized representative of a legal entity in person, and multi-factor authentication;

3) according to the identification data of the person contained in the qualified certificate of electronic signature or seal, previously formed (formed) and issued (issued) in accordance with clause 1 or   2 of this part, provided that such certificate is valid;

4) using other methods of identification defined by law, the reliability of which is equivalent to personal presence and confirmed by the conformity assessment body.

According to Clause 6-1 of Chapter VII   The final and transitional provisions of the Law of Ukraine "On Electronic Trust Services" are defined as follows.

Temporarily, until the mutual recognition of electronic trust services between Ukraine and the European Union, as an exception to the provisions of the first part of Article 38 of this Law , recognize in Ukraine:

1) the results of the provision of qualified electronic trust services provided by qualified providers of electronic trust services, the information about which and the qualified electronic trust services they provide are included in the Trust List of a member state of the European Union or a member state of the European Free Trade Association (hereinafter - European qualified providers);

2) the status of European qualified providers, which is equivalent to the status of qualified providers of electronic trust services in accordance with this Law;

3) the status of means of qualified electronic signature or seal used by European qualified providers in the provision of electronic trust services and included in the list of certified means for creating a qualified electronic signature maintained by the European Commission in accordance with Article 31 of the Regulation of the European Parliament and of the Council (EU) No. 910 /2014 of July 23, 2014 on electronic identification and trust services for electronic transactions in the domestic market and on the repeal of Directive 1999/93/EC , which equates to the status of means of a qualified electronic signature or seal in accordance with this Law;

4) the list of trust lists of European Union member states, information about which is published by the European Commission in accordance with part four   Article 22 of Regulation of the European Parliament and Council (EU) No. 910/2014 of July 23, 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC .

Some provisions enter into force on December 31, 2023

In Art. 4 of the Law " On electronic trust services" Several new principles of state regulation and management in the fields of electronic trust services and electronic identification have been added, namely:

free circulation of electronic identification services and electronic trust services in Ukraine, as well as the possibility of free provision of electronic identification services and electronic trust services by providers of electronic identification services and electronic trust services who are non-residents of Ukraine, in case such services are recognized in accordance with the requirements of this Law

ensuring accessibility and opportunities to use electronic identification services and electronic trust services for persons with disabilities on an equal basis with other natural persons;

compliance with the requirements for electronic identification and the provision of electronic trust services to national, European and international standards.

Individuals who are users of electronic identification services or electronic trust services, when receiving such services, will have the right to use a pseudonym instead of their surname, first name and patronymic (if available) in cases defined by law, provided that it is mandatory to indicate its use in means of electronic identification and certificates of public keys in the manner determined by the Cabinet of Ministers of Ukraine (Article 4-1 of the Law "On electronic trust services" will be supplemented).

Amendments are made to Art. 6 of the Law "On electronic documents and electronic document management" . Yes, from December 31, 2023. it is assumed that the creation of an electronic document is completed by the imposition of an electronic signature and/or an electronic seal . Also , subjects of electronic document circulation use electronic signatures and electronic seals in cases established by law or by agreement between the relevant subjects.

In addition to the transactions provided for in Article 31 of this Code, a natural person between the ages of fourteen and eighteen (a minor) shall have the right, among other things, to independently enter into an agreement on receiving electronic trust services" ( Article 32 of the Civil Code of Ukraine Incomplete civil legal capacity of a natural person aged from fourteen to eighteen years).

As before, a transaction executed in electronic form may be recognized by the court as invalid if a qualified electronic signature or seal was used during its execution, the qualified certificate of which does not contain the information provided for in part two of this article, or contains unreliable information. data. However , the list of mandatory requirements for qualified public key certificates, defined by the second part of this article, will be exhaustive from 12.31.2023 . In addition , the requirements for qualified public key certificates will be slightly supplemented.

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Author: Kukharau Illia, Civil Organization "School for Sustainable Development"