On August 2nd, 2011 Law no. 1,383 on the Digital Economy was adopted with the aim of facilitating and securing the formation of contracts electronically (“Law 1.383“). One of the main contributions of this law was the introduction of an article 1163-1 of the Civil Code, which states that electronic writing is, under certain conditions, admitted as evidence in the same way as writing on paper.
To date, the Monaco legislator wants to go further in the recognition of the digital medium with the bill n° 994 dated April 12th, 2019 amending Law 1.383 (the “Draft Law”).
1. Electronic writing under current legislation
Article 1163-3 of the Civil Code, introduced by Law 1.383, provides for the validity of the principle of the electronic signature. This is defined as “… a signature which consists of the use of a reliable identification process and guarantees its link with the deed to which it relates”.
Ordinance No. 6.525 of 16th August 2017 implementing articles 18, 19 and 25 of Law 1.383 (“Ordinance 6.525“) specifies in its article 3 that the reliability of the electronic signature is presumed when it is established through a device for creating a qualified electronic signature and that the validation of this signature is based on the use of a qualified electronic certificate.
Ordinance 6.525 further provides that compliance of an electronic signature creation device with the requirements of Law 1.383 and Ordinance 6.525 must be certified by the director of the Monacan Security Agency Digital (the “AMSN“).
In this regard, the AMSN, which we have verbally approached in order in relation to a company engaged in financial activities, indicated to us that in the absence of certification, an electronic signature creation device will nevertheless be recognized as meeting the requirements of the aforementioned provisions if it has been certified by the French National Agency for the Security of Information Systems (the “ANSSI“). It is therefore possible to refer directly to the list of devices certified by ANSSI (referred to as “qualified products and services”), to which the AMSN site itself makes a reference.
2. Evolutions provided for by the Draft Law
Article 2 of the Draft Law introduces or redefines a very broad range of legal definitions. As such, some terms would see their definition evolve, including the electronic seal, that becomes a simplified authentication process.
A new Article 1163-4 devoted to this electronic seal would be added to the Civil Code to give it an assumption of data integrity and accuracy of the origin of the data when its creation device is recognized as “advanced” in the sense of the Draft Law. The preamble to the Draft Law clearly states that this simplified electronic signature method could be used to authenticate electronic invoices, bank credit offers, insurance policies or pay slips.
Clause 16 of the Draft Law would also amend article 1181 of the Civil Code concerning the value as evidence of copies which, under certain conditions, would no longer be subject to the preservation of the original. Therefore, when the conditions of reliability of the copy would be met, it would have full evidentiary value, including in case of destruction of the original *.
Clause 13 of the Draft Law would make the sending of registered electronic letters by means of a qualified registered mailing service the equivalent of the physical registered letter. This sending will benefit from an assumption, until proof to the contrary, of the integrity, the sending and the reception of the data. It should be noted that the scope of this draft article is not yet known but seems, as drafted, to weaken the process of electronic sending.
Finally, Article 39 of the Draft Law provides that accounting documents are established, kept and transmitted in dematerialized form subject to the reliability requirements of the Civil Code in the area of digital writing and electronic copy.
The bill is yet to be debated by the National Council and may, as a result, be amended on that occasion.
*The Draft Law also provides that the legal obligation to keep certain documents is fulfilled in the case of electronic archiving only.