After more than two years of discussion the law of July 25th 2015 relating to electronic archiving and amending Article 1334 of the Civil Code, Article 16 of the Commercial Code and the amended law of April 5th 1993 relating to the financial sector (the “Law”), entered into force on August 7th 2015.
As Article 1 provides, the Law pursues 3 objectives:
- Defining the digitisation conditions for documents under private signature and any document referred to under Article 16 of the Commercial Code, as well as the storage conditions for copies of any electronic document under private signature or of any document originally created in digitised form;
- Determining the conditions for those copies to benefit from the legal presumption of conformity to their originals; and
- Fixing the rules governing the activity of the digitisation or storage service providers.
Excluded from the Law’s scope are the activities of simple data storage without keeping an electronic copy or a digitised original by securing its integrity.
The Grand-Ducal regulation of July 25th 2015 relating to the digitisation and the storage of documents (entering into force in November 2015) purports to achieve the first objective. Said regulation sets out:
- the necessary characteristics to qualify as “‘probative value copy”,
- the conditions of authenticity and durability for the digitised or micrographic reproductions of original documents or for digitised originals, and
- applicable rules for probative value copies by micrographics.
The second objective is realised by the reversal of the burden of proof in favour of “probative value copies”: the new Article 1334-1 of the Civil Code (just as the new third paragraph of Article 16 of the Commercial Code) creates a rebuttable presumption of probative value equivalent to original documents for digitised copies that are made by a duly certified and registered digitisation or storage service provider. On the other hand any service provider who has not been duly certified and/or registered on the special ILNAS list does not benefit from the legal presumption that its electronic copies have the same probative value as the original documents or deemed equivalent thereto.
As regards the last objective, the Law first regulates the status of digitisation or storage service providers (“prestataires de services de dématérialisation ou de conservation” – PSDC). To this effect, a second grand-ducal regulation of July 25th 2015 specifies the certification conditions to be met by the PSDC. Furthermore, those PSDC operating in the financial sector will need to qualify as one of the two new categories of support professionals of the financial sector under the 1993 law. Secondly the Law lays down the following obligations to be complied with by the PSDC:
- the obligation to provide information on the conditions of digitisation and storage covered by the certification prior to any new contract with clients;
- the professional secrecy obligation (except vis-à-vis ILNAS in its capacity as supervisory authority for the PSDC);
- the obligation to fully own the equipment or media on which at least one copy of all probative value copies and digitised originals is kept and not to guarantee or pledge said equipment or media; and
- certain obligations in case of transfer or cessation of the PSDC activities.
" Being innovative compared to other EU Member States, the Grand Duchy expects to attract international companies to centralise their electronic archiving in Luxembourg with substantial cost and space savings. "