A draft law on electronic archiving could make Luxembourg a more efficient hub, says guest contributor Hervé Wolff.
Long-awaited by Luxembourg professionals--in particular in the IT and financial sector--a bill on electronic archiving was introduced in the Chamber of Deputies in February. This draft law is of great importance for Luxembourg, as the reform will replace obsolete rules on archiving which were initially adopted in 1986 and that are not suited to the specific needs of electronic archiving today.
The purpose of the bill is to acknowledge the legal value of electronic copies and establish a legal presumption of the copies in conformity to the original, even if the paper version still exists, provided that the copies have been issued in accordance with certain legal requirements.
It can be considered as an innovative regulation as currently, according to Luxembourg civil code, judges are allowed to require the production of an original when a copy is provided by a party.
The new rules would apply to two types of documents: binding contracts, and documents such as invoices, accounts, charts of accounts, letters received and sent, and supporting documents. The draft law does not include administrative documents, authentic and notarial acts or photocopies.
In order to be compliant with the original document and have the same probative force, the digital copy will have to be certified by a new service provider called a dematerialisation and preservation provider (known by its French acronym PSDC).
PSDC status may be acquired after validation of notification by the Luxembourg Institute of Standardisation, Accreditation, Safety and Quality of Products and Services (ILNAS). In order to acquire this status, the applicant must comply with the technical requirements and measures specified by ILNAS. Companies can obtain certification for dematerialisation activities (PSDC-D), for conservation activities (PSDC-C) or for both (PSDC-DC).
According to the draft law, PSDCs will have to meet certain legal requirements. For instance, the PSDC will have to provide its clients with information regarding the dematerialisation, conservation, transfer or destruction procedures that it uses, as well as the terms and conditions of the service, prior to the conclusion of the agreement. In the event that the PSDC ceases its activities or is subjected to an insolvency procedure, it will have the obligation to transfer its data to another service provider. In case of a bankruptcy, the PSDC also has the obligation to insure that the data stored on its hardware is not altered, lost, revealed or sold during the liquidation of the assets.
On the other hand, companies that have not retained the services of a PSDC will not benefit from the legal presumption and will have to demonstrate the authenticity of their digital copies by providing the court with technical information regarding the dematerialisation process that they used.
The draft law is a positive development, as it will not only increase the cost-effectiveness of the archiving process but also improve the efficiency of national and international companies based in Luxembourg regarding the organisational and technological challenges of document archiving.
However, the draft law raises the question of the legal value of electronic copies in an international context. On this point, it should to be noted that the forthcoming EU regulation on electronic identification and trust services for electronic transactions in the internal market, issued by the European Commission in June 2012, provides that an electronic document shall be admissible as an evidence in legal proceedings in all EU countries, if the authenticity and integrity of the electronic document can be guaranteed. Enforcement of this EU directive among member states however may take a few years to come into effect.
Editor’s note: The bill is currently being reviewed by the chamber of deputies’ economy and trade committee. An economy ministry official has told Delano that the measure may not be approved before parliament dissolves in October.
Hervé Wolff is a member of the Luxembourg Bar and practices at the law firm of [email protected].