The Luxembourg E-Archiving Law Proposal Revisited

On 20 October 2014, an amended version of the much anticipated Luxembourg E-Archiving Law Proposal (see our newsflash on the initial Proposal of 13 February 2013) was published.

The amended proposal introduces additional guarantees for clients of e-archiving services providers. However, it does not change the principles of the initial proposal and further confirms the rule that an electronic (or microform) copy of a document will be presumed to have the same probative value as the original provided a number of technical and other requirements to guarantee authenticity and integrity are complied with.

The amended proposal does not change the principle that the requirement to guarantee the authenticity and the integrity of the documents will be deemed to be met where the dematerialisation and the conservation of the documents have been carried out by a new category of service providers, the "prestataires de services de dématérialisation et/ou de conservation" (hereinafter "PSDC"). These must be certified to that effect pursuant to certification rules which are based on the relevant ISO standards (e.g. for information security).

Whereas the amended proposal leaves the basics of the initial proposal unaltered, it brings about some changes which, at first sight, seem the be unimportant but which could have a significant impact on the business model chosen by PSDCs.

  • Contrary to the original proposal, the amended proposal clarifies that the PSDC must guarantee that at least one copy of all the documents conserved by the PSDC are conserved on (hardware) equipment and carriers that are fully owned by the PSDC. This naturally entails that a PSDC must be the owner of the server and other hardware material used for the conservation of the documents.The wording "at least one copy" seems, however, to grant some respite for PSDCs by permitting recourse to third party hardware) infrastructure for backup purposes.
  • The amended proposal further adds that such equipment and carriers cannot be the object of a seizure.It stems from the parliamentary discussions that this rule is intended to be enforced against the creditors of the PSDC and only applies to equipment and carriers based in Luxembourg. This would certainly incite PSDCs to use Luxembourg based  infrastructure.
  • Whilst a PSDC can also be a foreign undertaking, clients may want to consider choosing a Luxembourg based PSDC which is subject to Luxembourg insolvency rules and to Article 567 of the Commercial code in particular. The latter provision guarantees that clients are entitled to claim their conserved documents back from a bankrupt PSDC.
  • The amended proposal has abolished the possibility for a PSDC to exercise a lien or a retention right on the conserved documents in case of a default of payment by the client.

The next step in the path towards adoption is an assessment of the amended text by the Council of the State ("Conseil d'Etat").

The Parliamentary file can be found here (only in French).