The current legislative framework relating to the dematerialisation and the conservation of documents in digital form is covered by a law and a regulation both dating from more than 25 years ago, and both of which it is now intended to replace. Draft law number 6543, relating to electronic archiving and amending the law of April 5th 1993 on the financial sector, as amended (the "1993 Law"), was filed with the Luxembourg Parliament on February 13th 2013 and is expected to be implemented in the course of this year.
Draft law number relating to electronic archiving is expected to be implemented in the course of this year.
The main purposes of the draft law are to (i) acknowledge the legal value of dematerialised documents and, provided that certain conditions are met, set out the legal presumption of their conformity to originals, (ii) determine the legal requirements in order to ensure a reliable and sustainable conservation of dematerialised documents and (iii) set out the rules applicable to the activity of providers of dematerialisation and conservation services (defined as "PSDC" in the draft law).
In this context, the new text provides that documents dematerialised by a PSDC, meaning under conditions offering sufficient guarantees regarding the conformity to the original, should automatically benefit from the presumption of conformity to such original. If there is no PSDC involvement, the dematerialisation of documents will not benefit from such presumption, and it would need to be proven that the dematerialised documents have been created while respecting certain rules and conditions. A new grand-ducal regulation, which will replace the existing grand-ducal regulation of December 22nd 1986, will lay down the specific rules and conditions, as well as the technical and organisational requirements, with regard to the dematerialisation and the conservation of documents.
Furthermore, the draft law provides that a copy of a document cannot be rejected by a judge for the sole reason that (i) it has been submitted in the form of an electronic copy or (ii) it has not been dematerialised by a PSDC, it being understood that Article 1333 of the civil code will no longer apply to electronic archives. As a result, a judge will no longer be entitled to require that an original needs to be made available, in case an electronic copy is provided by a party.
The draft law also sets out the rules to be followed for the certification and recognition of the legal status of a PSDC. A PSDC may be certified as such by a duly accredited organism and after validation of notification by the ILNAS, which is the Luxembourg Institute for Normalisation, Accreditation and Security. A PSDC can obtain certification and ILNAS notification validation for dematerialisation activities only (PSDC-D), for conservation activities only (PSDC-C) or for both dematerialisation and conservation activities (PSDC-DC).
A PSDC, which would envisage to provide services to financial sector professionals, must obtain the authorisation of the Commision de Surveillance du Secteur Financier (CSSF) in order to operate as a professional of the financial sector (PFS). The draft law creates two new categories of PFS: a dematerialisation PFS and a conservation PFS. In that regard, it provides for the incorporation of two new Articles (Article 29-5 and Article 29-6) into the 1993 Law.
Finally, it should be noted that, at this stage, there is no European legislation with respect to dematerialisation of original documents or more generally of electronic archiving.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
