Foreign (EU) electronic signatures are recognized in Ukraine
On November 25, 2022, the Resolution No. 1311 as of November 22, 2022, “On the implementation of an experimental project on mutual recognition of electronic trust services between Ukraine and the European Union” entered into force. The Resolution approves the Procedure for conducting an experimental project on mutual recognition of electronic trust services between Ukraine and the European Union.
The Resolution envisages the recognition in Ukraine of foreign qualified services and qualified electronic signatures (“QES”), which are the results of such services, foreign means for creating QES, as well as some electronic signatures with a limited purpose of application. Such recognition is expected before the conclusion of an agreement between Ukraine and the European Union on mutual recognition of electronic trust services, as well as agreements with other countries.
In particular, the Resolution provides that foreign qualified services and QES shall be recognized as qualified electronic trust services and QES in accordance with the Law of Ukraine “On Electronic Trust Services” if they are provided by qualified providers of electronic trust services in the member states of the European Union and other member states of the European Economic Area included in the Trusted List of the European Union. The Trusted List includes member states of the European Union and other member states of the European Economic Area, and is published by the European Commission in accordance with the Part 4 of Article 22 of Regulation (EU) No. 910/2014 of the European Parliament and of the Council (EU) of July 23, 2014, on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
Such a list as it is understood is currently available by the link.
The means for creating a QES shall be recognized as means of QES or seals in accordance with the Law of Ukraine “On Electronic Trust Services“, if they are certified by the relevant state or private bodies appointed by the member states of the European Union in accordance with Article 30 of Regulation (EU) No. 910/2014 of the European Parliament and of the Council (EU) of July 23, 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (“Regulation (EU) No. 910/2014”), and are included in the list of certified means for the creation of QES, which is maintained by the European Commission in accordance with Article 31 of Regulation (EU) No. 910/2014.
Electronic signatures shall be recognized on the condition that they are created in the states that ensure proper protection of personal data and the list of which is given in the appendix to the Resolution of the Cabinet of Ministers of Ukraine dated August 16, 2022, No. 910 “Some issues of transferring personal data outside of Ukraine by means of the Unified State Web Portal of Electronic Services“. This list currently includes European countries and some others.
The recognition of electronic signatures is provided for a limited purpose, namely, to provide citizens of Ukraine who have moved abroad with the possibility of using electronic display of information, which is contained in documents, transferring electronic copies of relevant documents and receiving public services outside of Ukraine at the request of such citizens. Such signatures are recognized as analogues of handwritten signatures on documents that confirm the participation of the mentioned states in the transfer of electronic copies of relevant documents and the receipt of public services exclusively outside of Ukraine.
The Procedure for conducting an experimental project on the mutual recognition of electronic trust services between Ukraine and the European Union provides for the formation by the State Enterprise “Diia” (as an administrator) of an experimental Trusted List, which contains a special index and information about the certificates of the Trusted List of the European Union.
Therefore, it is not entirely clear whether foreign QES issued by qualified providers of electronic services, which are listed in the Trusted List of the European Union, can already be used when it is required by Ukrainian legislation, or only after the introduction by the SE “Diia” of relevant information to the experimental Trusted List.
We would like to draw attention to the fact that on December 1, 2022, the Verkhovna Rada of Ukraine adopted the Law 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 (the draft law is available by the link). The final text of the Law is not available yet. But, based on the text of the comparative table prepared for the second reading (available by the link), we can conclude that the QES, which are obtained from qualified providers of electronic services of the European Union, will be recognized at the legislative level in Ukraine. Such recognition is provided on a temporary basis, as an exception to the general rule, and is valid until mutual recognition between Ukraine and the European Union of electronic trust services.
Whereas, according to the general rule, it is stipulated that foreign electronic trust services will be recognized in Ukraine as electronic trust services of the same type upon confirmation by the central certifying authority of the compliance of the provider of electronic trust services of a foreign country with the requirements of Ukrainian legislation.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
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