EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

The Official Journal of the European Union is published in electronic form pursuant to Regulation (EU) No 216/2013 (“the Regulation”).

In order to guarantee the authenticity of the Official Journal, this electronic publication has to bear a qualified electronic signature or a qualified electronic seal in accordance with Regulation (EU) No 910/2014.

Authenticity, integrity and inalterability of the electronic edition of the Official Journal can be guaranteed by various organisational and technical means which provide comparative security guarantees. These means can change over time. In order to avoid the need to amend the Regulation with each new method or technology or change of technical details, it is proposed to reformulate the wording of the Regulation in a more generic way. The French and Luxembourgish rules governing the publication of their respective national gazettes have served as a source of inspiration. For the sake of transparency, the system put into place to ensure authenticity will be described on the EUR-Lex website, allowing citizens to easily verify the authenticity of the electronic edition of the Official Journal.

Despite the fact that the Official Journal is in principle inalterable, situations arise where it is necessary to remove certain information from the Official Journal, once it has been published. Such removals are carried out by application of the Union data protection legislation or based on decisions of the Court of Justice of the European Union adopted pursuant to its rules of procedure. For the sake of legal certainty, this interference with the rules on authenticity should be regulated. The proposed amendment will not change the practice that the original version of the issue of the Official Journal concerned by the removal is not altered in the process and is kept in the archives of the Publications Office for an unlimited period.

According to the Regulation, only the Official Journal published in electronic form is authentic and produces legal effects. There is only one exception to this rule: in situations when the Official Journal cannot be published due to an unforeseen and exceptional disruption of the information system of the Publications Office. In those cases, only the printed edition of the Official Journal is authentic and produces legal effects. Once the information system of the Publications Office is restored, an electronic edition corresponding to the printed edition is made available to the public on the EUR-Lex website. This electronic edition is for information purposes only.

The Publications Office has put in place contingency measures, which minimise the risk of not being able to publish and make available the electronic edition of the Official Journal on the EUR-Lex website. For those very unlikely situations where despite all the measures this risk should materialise, a preferable fall back solution consists in displaying the Official Journal at the Publications Office premises in printed or electronic form (for example, stored on an off-line PC), depending on which solution is feasible in a concrete situation. The Regulation should therefore be amended in this sense.

Introduction of the authentic electronic edition of the Official Journal has simplified access to EU law and increased legal certainty. Based on the same reasoning, it is preferable that citizens can rely as much as possible on the version of the Official Journal that has been made available on the EUR-Lex website. Therefore, it is proposed that the electronic edition made available to the public on the EUR-Lex website subsequently to a disruption of the information systems becomes the authentic edition from the moment it is made available. Legal certainty then requires that from that moment, the earlier (printed or electronic) edition no longer has authentic status.

Finally, since the entry into force of the Regulation, only three issues of the Official Journal have been published in the authentic printed edition pursuant to its article 3. In line with the reasoning explained above, and in order to ensure coherence, it is appropriate to confer authentic character and legal effects to the corresponding electronic editions of those printed editions. These editions are based on the same authenticated files as the printed editions and were made available to the public on the EUR-Lex website promptly after the publication of the paper editions. Hence, legal certainty will not be called into question by the provision proposed in this regard.

•Consistency with existing policy provisions in the policy area

The proposed amendment is complementary, with regard to the authentication of the Official Journal, to the option - offered by Regulation No 910/2014 on electronic identification and trust services for electronic transactions in the internal market - to authenticate a document by an electronic signature or seal. It is also complementary to the existing EU rules on the protection of personal data.

•Consistency with other Union policies

N/A

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

The Proposal for a Regulation is based on Article 352 TFEU. This is the legal basis for Regulation No 216/2013 and its amending Regulation (EU) 2018/2056. Regulation No 216/2013 is proposed for a second amendment and should have the same legal basis.

•Subsidiarity (for non-exclusive competence)