Report from the Commission to the European Parliament and the Council - Report on the operation of Directive 1999/93/EC on a Community framework for electronic signatures
Date: 2006-03-15
Institutions: European Commission
Subjects: approximation of laws, data protection, drafting of EU law, electronic signature, legal status, liability, report, standardisation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.3.2006 
COM(2006) 120 final 

REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

Report on the operation of Directive 1999/93/EC on a Community framework for 
electronic signatures 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

Introduction .................................................................................................................. 3 

The Directive................................................................................................................ 3 

Background .................................................................................................................. 3 

Implementation of the Directive .................................................................................. 4 

Content of the Directive ............................................................................................... 4 

2.3.1  Aim and scope.............................................................................................................. 4 

2.3.2.  The various types of electronic signatures in the Directive ......................................... 4 

2.3.3. 

Internal market issues................................................................................................... 5 

2.3.4 

Legal recognition ......................................................................................................... 5 

3. 

3.1. 

3.2. 

3.3. 

Effect of the Directive on the Internal Market ............................................................. 5 

General remarks on the relationship between the Directive and market  
development ................................................................................................................. 5 

The market for electronic certificates: applications in use........................................... 6 

Technological developments........................................................................................ 6 

3.3.1.  Standardisation............................................................................................................. 6 

3.3.2.  Technological challenges ............................................................................................. 7 

4. 

4.1. 

4.2. 

4.3 

5. 

5.1. 

5.2. 

The impact of Directive on other regulation ................................................................ 8 

The Directive 2001/115/EC ......................................................................................... 8 

The new Public Procurement Directives...................................................................... 8 

The Commission Decision on electronic and digitised documents ............................. 9 

Conclusions .................................................................................................................. 9 

The legal aspect............................................................................................................ 9 

The effect on the market ............................................................................................ 10 

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REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

Report on the operation of Directive 1999/93/EC on a Community framework for 
electronic signatures 

(Text with EEA relevance) 

1. 

INTRODUCTION 

This Report reviews the operation of Directive 1999/93/EC on a Community framework for 
electronic  signatures1  (the  Directive)  in  accordance  with  Article  12  of  the  Directive.  The 
Report  is  partly  based  on  the  results  of  an  independent  study  carried  out  by  external 
consultants2 (hereafter referred to as the Study) and finalised in 2003, and on the outcome of 
informal consultations with interested parties3. 

2. 

THE DIRECTIVE 

2.1. 

Background 

Further  to  the  first  announcement  of  a  proposal  for  legislation  in  the  area  of  electronic 
signatures  in  a  Communication  on  “Security  and  Trust  in  electronic  communication  – 
Towards  a  European  framework  for  encryption  and  digital  signatures”4,  the  proposal  for  a 
directive  itself  was  published  in  19985.  Several  Member  States  had  already  introduced  or 
proposed national electronic signature legislation, which they considered as a prerequisite for 
the  growth  of  electronic  commerce  and  an  important  policy  requirement  to  ensure  trust  in 
electronic transactions. 

From an EU perspective, national legislation with differing requirements risked holding back 
the  effective  establishment  of  the  internal  market  especially  in  areas  which  depended  on 
electronic signature related products and services. Avoiding disruption of the internal market 
in an area considered critical to the future of electronic transactions in the European economy 
was at the basis of the proposed harmonisation measures. One of the central requirements was 
the  need  to  clarify  the  legal  status  of  electronic  signatures  in  order  to  ensure  their  legal 
validity, which was often questioned. 

The Directive was adopted by the European Parliament and the Council in December 1999. 

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legal 

Directive  1999/93/EC  of  the  European  Parliament  and  of  the  Council  of  13  December  1999  on  a 
Community framework for electronic signatures, OJ L 13, 19.1.2000, p.12. 
Study  on 
http://europa.eu.int/information_society/eeurope/2005/all_about/trust/electronic_sig_report.pdf 
In  2003  the  Commission  launched  an  informal  consultation  for  all  the  interested  parties  to  collect 
comments on the operation of the Directive. The comments received are integrated in this report. 
COM(97) 503 of 8 October 1997. 
OJ C 325, 23.10.1998, p.5. 

signatures,  K.U.L.,  2003, 

and  market 

aspects  of 

electronic 

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2.2. 

Implementation of the Directive  

All 25 EU Member States have now implemented the general principles of the Directive. The 
comments below are based on a comprehensive review of the results of the consultation and 
of  the  Member  States  implementing  measures,  though  a  formal  analysis  of  the  legislation 
transposing the Directive has not been completed at the time of this Report.  

2.3. 

Content of the Directive 

2.3.1 

Aim and scope  

The  main  objective  of  the  Directive  is  to  create  a  Community  framework  for  the  use  of 
electronic  signatures,  allowing  the  free  flow  of  electronic  signature  products  and  services 
cross border, and ensuring a basic legal recognition of electronic signatures. 

It  should  be  stressed  that  the  Directive  does  not  address  the  conclusion  and  validity  of 
contracts  or  other  legal  obligations  prescribed  by  national  or  Community  law  regarding  the 
form of contracts. Neither does it affect rules and limitations relating to the use of documents, 
provided in national or Community law.6 Consequently, the Directive does not affect national 
provisions requiring, for instance, the use of paper for certain type of contracts. Furthermore 
the  Directive  does  not  exclude  the  possibility  for  parties  in  a  closed  system  (e.g.  corporate 
intranet or between a service provider and its customers) to negotiate their specific terms for 
the use of electronic signatures within this system. 

2.3.2.  The various types of electronic signatures in the Directive 

The Directive addresses three forms of electronic signatures. The first one is the simplest form 
of  the  “electronic  signature”  and  is  given  a  wide  meaning.  It  serves  to  identify  and 
authenticate data. It can be as simple as signing an e-mail message with a person’s name or 
using a PIN-code. To be a signature the authentication must relate to data and not be used as a 
method or technology only for entity authentication.  

The second form of electronic signature defined in the Directive is the “advanced electronic 
signature”. This form of signature has to meet the requirements defined in Article 2.2 of the 
Directive. The Directive is technology neutral but in practice, this definition refers mainly to 
electronic  signatures  based  on  a  public  key  infrastructure  (PKI).  This  technology  uses 
encryption technology to sign data, which requires a public and a private key.  

Lastly  there  is  a  third  form  of  electronic  signature  mentioned  in  Article  5.1,  which  the 
Directive  did  not  give  a  term  of  its  own,  but  which  for  the  purposes  of  this  Report  will  be 
called  “qualified  electronic  signature”.  This  consists  of  an  advanced  electronic  signature 
based on a qualified certificate and created by a secure-signature-creation device and needs to 
comply with the requirements in Annex I, II and III. 

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The elimination of legal obstacles for the conclusion of contracts by electronic means is regulated by 
Article 9 of the Electronic Commerce Directive (Directive 2000/31/EC, OJ L 178, p.1) 

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The “signatory” is identified in the Directive as “a person who holds the signature creation 
device and acts either on his own behalf or on behalf of the natural or legal person or entity he 
represents”. Though the Directive does not state that the electronic signature has to refer to a 
natural  person  the  signatory  of  a  qualified  electronic  signature  (article  5.1  of  the  Directive) 
can only be a natural person as this form of signature is considered as the equivalent of the 
handwritten signature.7 

2.3.3. 

Internal market issues  

To promote the emergence of the internal market for certification products and services and to 
ensure  that  a  Certification  Service  Provider  (CSP)  established  in  one  Member  State  can 
provide  services  in  another  Member  State,  Article  3  states  that  market  access  shall  not  be 
subject to prior authorisation. In order to ensure that Certification Service Providers that issue 
qualified  certificates  to  the  public  comply  with  the  requirements  laid  down  in  the  Annexes, 
Member  States  do,  however,  have  to  establish  appropriate  systems  for  supervision.  No 
mandatory  requirements  are  imposed  on  supervision  systems.  Different  models  have  been 
implemented by Member States, which up to know operate mainly in their country of origin 
and  have  not  demonstrated  to  be  the  source  of  barriers.  A  rise  in  cross  border  certification 
services could however be affected by the divergences between the Member States systems.  

As  regards  the  cross-border  provision  of  certification  services  in  the  internal  market,  no 
restriction can be imposed on certification services provided from another Member State.  

2.3.4 

Legal recognition  

Article 5.2 establishes the general principle of the legal recognition of all kinds of electronic 
signatures established by the Directive. 

It  requires  Member  States  to  ensure  that  the  qualified  electronic  signature  (Article  5.1)  is 
recognised  as  meeting  the  legal  requirements  of  hand-written  signatures  and  that  it  is 
admissible as evidence in legal proceedings in the same way as hand-written signatures are in 
relation to traditional documents. 

Concerning the legal effect of e-signatures, there is yet no representative case law that allows 
for any assessment of the recognition of electronic signatures in practice. 

3. 

EFFECT OF THE DIRECTIVE ON THE INTERNAL MARKET  

3.1. 

General  remarks  on  the  relationship  between  the  Directive  and  market 
development 

With the adoption of the Directive, there were some expectations that this legislation would 
help the market for electronic signatures to take off. Generally legislation is not introduced to 
create market demand, nor was it in the case of the Directive. The Directive should, however, 

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Restricting  the  use  of  advanced  electronic signatures  to natural persons  shows  that  a  lot  of  regulators 
consider  e-signatures  to  be  merely  electronic  equivalents  of  traditional  handwritten  signatures. 
However, the most common use of digital signatures is exclusively to enhance message authenticity and 
integrity, without the aim of showing intent to sign in the traditional sense which has also been pointed 
out by e.g. ICC during the informal consultation. 

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grant  greater  legal  security  with  respect  to  the  use  of  electronic  signatures  and  related 
services.  In  that  respect  the  Directive  could  provide  a  platform  of  trust  that  would  have 
allowed for the market to take off.  

Although the Study focussed its investigations on the use of advanced or qualified electronic 
signatures  and  found  a  very  slow  take  up,  it  showed  that  many  other  electronic  signature 
applications had become available that use the simpler form of electronic signatures. 

3.2. 

The market for electronic certificates: applications in use 

The  two  dominating  electronic  signature  applications  are  related  to  e-government  and 
personal e-banking services. Many Member States and several other European countries have 
launched  e-government  applications  or  are  planning  to  do  so.  A  number  of  these  e-
government applications are based on the use of electronic ID cards. The electronic ID card 
can  be  used  both  as  an  identification  document  and  to  provide  on-line  access  to  public 
services  for  the  citizens.  In  most  cases  these  ID  cards  will  contain  the  three  functionalities: 
identification, authentication and signing.  

The other major application for electronic signatures - personal e-banking - is now taking off 
in most EU countries. Most of the authentication systems for personal e-banking services are 
relying  on  one-time  passwords  (OTP)  and  tokens,  which  means  the  simplest  form  of 
electronic  signature  according  to  the  Directive.  Many  e-banking  applications  are  only  using 
these  technologies  for  authentication  of  the  user  but  electronic  signing  of  transactions  is 
increasing. For corporate e-banking (business-to-business) and inter-bank clearing, it is more 
common to use smart cards which are considered to provide a higher level of security.  

At the same time, the spectrum of services requiring a level of authentication corresponding to 
the simple form of electronic signature is being widened in several Members States. 

3.3. 

Technological developments 

3.3.1. 

Standardisation 

Article 3.5 of the Directive allows the Commission to establish and publish reference numbers 
of  “generally  recognised  standards”8for  e-signature  products.  As  a  consequence  compliance 
with the requirements laid down in Annex II f) and in Annex III when an e-signature product 
meets those standards is presumed. 

The Commission issued a mandate to the European Standards Organisations to carry out the 
standardisation  work.  EESSI  (European  Electronic  Signature  Standardisation  Initiative, 
composed by members from CEN/ISSS and ETSI) was set up and produced standards for e-
signature products and services.9 

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This concept refers to the requirements of technological updatedness and of acceptance by practitioners 
or sufficient participation of them in its development. 
The list of standards produced is available on the EESSI web site 
http://www.ict.etsi.org/EESSI_home.htm  

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In  July  2003,  the  Commission  published  a  Decision  based  on  Article  3.5  of  the  Directive10 
including references to CEN standards (CWAs) for the requirements related to the creation of 
qualified  electronic  signatures.  The  validity  of  CWAs  expires  after  three  years  of  their 
publication; however, CEN can extend their validity for another term if needed. 

According  to  Article  3.5,  other  standards  can  also  be  developed  and  accepted  by  the 
Commission to fulfil the requirements of the Directive as long as they can be considered to be 
“generally  recognised  standards”.  In  general,  the  requirements  of  the  Annexes  can  also  be 
fulfilled by other standards than those referenced in the OJ. 

It  is  important  for  the  market  that  future  standardisation  work  takes  into  account  new 
technological developments as in the future, users will move their e-signature key from device 
to device in a connected world. 

3.3.2.  Technological challenges 

There  is  no  simple  answer  to  why  the  market  for  electronic  signatures  has  not  developed 
faster, but the market is facing a number of technical challenges. One frequently highlighted 
problem  that  could  contribute  to  the  slow  take  up  of  advanced  or  qualified  electronic 
signatures in Europe is the complexity of the PKI technology. The often stressed advantage of 
PKI is that this technology uses the system of the “trusted third party” which allows parties 
that  have  never  met  to  trust  each  other  on  the  internet.  In  many  of  the  current  applications 
there seems, however, to be little interest from the service providers, essentially for liability 
reasons, to allow their customers to use their authentication device for other services. This is 
probably why the use of different one-time passwords (OTPs) is still dominating the market 
and there is little indication of this changing in the near future. 

Other  factors  could  explain  this  slow  take  up:  the  lack  of  provisions  in  the  Directive  on 
criteria for electronic signature verification services to be provided by the CSP to the end user 
and, the lack of provisions regarding the mutual recognition between CSPs. Depending of the 
countries, there are various solutions to validate a certificate such as the Root CA, the Bridge 
CA and the Trust Status List. In the framework of cross-border eGovernment transactions, in 
the IDA II Programme, action on Bridge/Gateway Certification Authority11 has resulted in a 
Bridge/Gateway  CA  Pilot  project  which  has  identified  not  only  technological  problems  but 
also legal and organisational ones. 

The  lack  of  technical  interoperability  at  national  and  at  cross-border  level  causes  another 
obstacle for the market acceptance of e-signatures. It has resulted in many “isolated” islands 
of  e-signature  applications,  where  certificates  can  only  be  used  for  one  single  application. 
EESSI has worked on common interoperability standards but most of the Member states have 
specified national standards in order to promote interoperability.12 

Today,  in  the  PKI  environment,  the  smart  card  is  the  mostly  used  signature-creation-device 
because the smart card provides a means to store the private key securely. This technology is 

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Decision 2003/511/EC of 14 July 2003 on the publication of reference numbers of generally recognised 
standards  for  electronic  signature  products  in  accordance  with  Directive  1999/93/EC  of  the  European 
Parliament and of the Council, OJ L 175, 15.7.2003, p.45. 
The BGCA action of the IDA II Programme : http://europa.eu.int/idabc/en/document/2318/556 
For  example,  the  ISIS-MTT  specifications  in  Germany  aim  at  creating  technical  interoperability 
between the e-signatures products 

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expensive  and  requires  physical  infrastructure  investments  (distribution  of  cards  and  card 
readers etc). There are already a number of alternatives to the smart card that can be used to 
store the cryptographic key securely. 

Another  practical  reason  for  the  reluctance  to  implement  e-signature  applications  is  that  the 
archiving of electronically signed documents is considered too complex and uncertain. Legal 
obligations  to  keep  documents  for  as  long  as  over  30  years  require  costly  and  cumbersome 
technology and procedures to ensure readability and verification of such period of time. 

4. 

THE IMPACT OF DIRECTIVE ON OTHER REGULATION 

Even  if  the  demand  for  the  deployment  of  PKI  is  something  that  cannot  be  created  by 
legislation, the Commission still sees the introduction of electronic signatures as an important 
tool  for  the  development  of  the  information  society  services  and  to  encourage  secure 
electronic commerce. 

The introduction of e-signatures and reference to the Directive 1999/93/EC has been made in 
some recently adopted Directives and Decisions.  

4.1. 

The Directive 2001/115/EC 

The Directive 2001/115/EC13 recognises the possibility to send invoices electronically. In this 
case,  the  authenticity  of  the  origin  of  the  invoice  and  the  integrity  of  its  content  must  be 
guaranteed, for example by the use of advanced electronic signatures. 

The  function  of  the  advanced  e-signature  as  referred  in  this  Directive  is  to  ensure  that 
technical security during the transmission and storage process is fulfilled. In fact, in the paper-
environment,  not  all  national  legislations  require  such  a  document  to  be  signed  with  a 
handwritten signature and the Directive states that Member States shall not require invoices to 
be  signed.  It  can,  therefore,  be  said  that  the  notion  of  e-signature  in  this  case  refers  to  a 
technical rather than a legal concept. 

4.2. 

The new Public Procurement Directives 

The new Public Procurement Directives, which entered into force on 30 April 2004, complete 
the legislative framework for the use of electronic signatures in public procurement.14 

Use  of  e-signatures  is  central  to  establishing  operational  e-procurement  systems  across  the 
EU. E-procurement can be expected to be one of the major fields of application, especially for 
more  advanced  forms  of  e-signatures.  E-procurement  illustrates  the  challenges  to  be 
overcome when promoting the use of e-signatures.  

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Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to 
simplifying,  modernizing  and  harmonizing  the  conditions  laid  down  for  invoicing  in  respect  of  value 
added tax, OJ L 15, 17.1.2002, p.24 
Directive 2004/17/EC of  the European  Parliament  and of  the  Council  of 31  march  2004  coordinating 
the  procurement  procedures  of  entities  operating  in  the  water,  energy,  transports  and  postal  services 
sectors,  OJ  L  134,  30.4.2004,  p.1  and  Directive  2004/18/EC  of  the  European  Parliament  and  of  the 
Council of 31 march 2004 on the coordination of procedures for the award of public works contracts, 
public supply contracts and public service contracts, OJ L 134, 30.4.2004, p.114 

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The  new  Public  Procurement  Directives  do  not define  which  type  of  e-signatures  should  be 
used  in  electronic  tendering  but  leave  the  choice  to  the  Member  States  provided  it  is 
consistent  with  national  law  implementing  Directive  1999/93/EC.15  This  reflects  the  current 
practice  for  the  submission  of  paper  offers  for  which  EU  procurement  Directives  do  not 
regulate the modalities for signing and securing offers.  

The fact that Member States may choose different levels of electronic signatures implies the 
risk  that  e-procurement  solutions  will  be  designed  taking  into  account  nationally  developed 
products. This risks fragmenting the procurement market and causing barriers to the internal 
market for electronic signatures. 

The  challenge  is  now  to  implement  electronic  signatures  across  Europe  for  e-procurement 
without creating barriers to cross border trade. 

The  new  directives  are  complemented  by  an  action  plan16  which  sets  targets  and  identifies 
possible  actions  for  the  Commission  and  Member  States  in  2005  to  2007  to  ensure  that  e-
procurement  is  generalised  in  Europe  by  2010.  It  calls  for  an  operational  solution  for  e-
signatures based on mutual recognition, which mustn’t be different from those used in other 
fields of activity. 

4.3 

The Commission Decision on electronic and digitised documents 

The  Commission  Decision  2004/563  on  electronic  and  digitised  documents  was  adopted  on 
7 July 2004 17. This Decision amends the internal Rules of Procedure of the Commission.  

This Decision determines the conditions of validity of electronic and digitised documents for 
the  Commission’s  purposes.  It  applies  to  electronic  documents  established  or  received  and 
held  by  the  Commission  and  the  e-signature  will  be  used  to  attest  the  validity  of  electronic 
documents when necessary 18 

The  Commission  has  drafted  the  implementing  rules  of  this  Decision.  They  contain  the 
principles necessary for the implementation of the e-signatures technical infrastructure. 

5. 

CONCLUSIONS 

5.1. 

The legal aspect 

The  Directive  has  introduced  legal  certainty  with  respect  to  the  general  admissibility  of 
electronic signatures: the need for the legal recognition of electronic signatures has been met 
by the transposition of the Directive into the legislation of the Member States. 

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Cf. Annex X of procurement Directive 2004/18 
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  The  European 
Economic and Social Committee and the Committee of the Regions, Action plan for the implementation 
of the legal framework for electronic public procurement, 14.10.2004 
Commission Decision of 7 July 2004 amending its rule of procedure, OJ L 251, 27.7.2004, p.9 
It can also apply, with an agreement, for bodies or entities responsible for the implementation of certain 
Community  policies,  and  with  the  national  administrations,  where  a  procedure  involves  the 
Commission and these other entities. 

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Against this background the Commission considers that the objectives of the Directive have 
been largely fulfilled and that no clear need for its revision has emerged at this stage. 

Nonetheless, given the problems of mutual recognition of e-signatures and interoperability at 
a  general  level,  the  Commission  will  organise  a  series  of  meetings  with  the  Member  States 
and  the  relevant  stakeholders  to  address  the  following  issues  in  view  of  considering 
complementary  measures,  where  appropriate:  the  differences  in  the  transposition  of  the 
Directive;  the  clarifications  of  specific  articles  of  the  Directive;  the  technical  and 
standardisation aspects; interoperability problems. In this context, account will be taken of the 
results from the relevant activities of the Commission services. 

5.2. 

The effect on the market 

The use of qualified electronic signatures has been much less than expected and the market is 
not very well developed today. Today, users do not have a single electronic certificate to sign 
documents or transactions in the digital environment in the same way as on paper. Therefore, 
the  internal  market  objective  of  the  Directive,  the  free  circulation  of  qualified  electronic 
signatures, cannot be assessed comprehensively at this stage. 

The main reason for the slow take-off of the market is economic: service providers have little 
incentive  to  develop  multi-application  electronic  signature  and  prefer  to  offer  solutions  for 
their own services, for instance, solutions developed by the banking sector. This slows down 
the  process  of  developing  interoperable  solutions.  The  lack  of  applications,  such  as 
comprehensive  solutions  for  electronic  archives,  might  also  prevent  the  development  of  a 
multi-purpose e-signature, which requires reaching a critical mass of users and usage.  

A number of applications in the future might however trigger market growth. The use of e-
signatures in e-government services has already reached a certain volume and will probably 
be  an  important  driver  in  the  future.  The  strategic  role  of  eGovernment  applications  is 
recognised in the i2010 initiative19, which fosters the deployment and efficient use of ICT by 
the private and public sectors. The need for secure electronic means of identification to access 
and  use  public  services  is  essential  for  citizens  and  businesses  and  will  promote  the  use  of 
electronic signatures20. Different forms of eID will be emerging and will require some degree 
of  interoperability.  The  Commission  has  set  a  high  priority  on  eID  initiatives,  through  for 
instance,  the  eProcurement  action  plan  or  the  harmonisation  of  security  features  of  travel 
documents,  the  IDABC  programme  action  on  the  interoperability  aspects  of  eID  for  pan-
European  eGovernment  services,  the  IST  or  the  eTen  Programmes.  Internally,  the 
Commission  intends  to  continue  the  modernization  of  its  own  administration.21  The  future 
deployment of e-signatures to reduce paper circulation is one of these measures. 

The  Commission  will  continue  to  encourage  the  development  of  e-signatures  services  and 
applications and will monitor the market. Beyond the support through eGovernment activities, 
particular emphasis will be on interoperability and cross-border use of electronic signatures. 
The  Commission  will  encourage  further  standardisation  work  in  order  to  promote  the 
interoperability  and  use  of  all  kinds  of  technologies  for  qualified  electronic  signature  in  the 
internal market. It will prepare a report on standards for electronic signatures in 2006. 

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COM(2005) 229 final 
see  also  the  Ministerial  Declaration  approved  unanimously  in  Manchester  during  the  Ministerial  e-
government Conference « Transforming Public Services », 24/11/05 
“e-Commission 2006-2010: enabling efficiency and transparency” - strategic framework - C/2005/44 73 

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