Identificación electrónica y confianza en las transacciones electrónicasla regulación jurídico-administrativa de las instituciones de acreditación de la actuación electrónica

Abstract

This work arises from the hypothesis that there is a relationship between the intervention of public law and the legal value of the instruments we use to generate electronic evidence of the actions of people and other legally relevant facts, which correspond to institutions typified in the eIDAS Regulation. It studies its own legal regime (definitions, validity requirements and substantive legal and, where appropriate, procedural effects), its sectorial use regime and, more importantly, the regulatory model designed by the legislator in order to establish a reinforced value for these institutions, which includes the legal regime of the providers, eminently private, that offer support to these institutions with their services and products. The study is novel because the academic contributions existing to date have not sufficiently analyzed the justification of the existence of a public supervision and control system (why an administrative regime is necessary for these purposes), even less on the relationship between the existence of this system in relation and the reinforced value of the electronic evidence (what the existence of this regime contributes to evidence). Regarding the methodology used to carry out the research, an approach based on the combination of the analysis of the normative sources, both legal and technical, with the contributions of the scientific doctrine and a long previous experience, exceeding twenty years as a professional in this sector, has been adopted. The following conclusions have been drawn from the research carried out: 1) the legal institutionalization of the accreditation of electronic action responds to a functionalist approach, with at least two differentiated legal regimes, for trust services and for cross- border electronic identification within the European Union; 2) the electronic signature fully responds to the principle of functional equivalence, so it does not have its own legal meaning, different from that of the signature it replaces, referring to each national law the final determination of the effects of the electronic signature; 3) the other institutions for the accreditation of electronic action do not respond to the principle of functional equivalence, but rather receive autonomous legal effects; 4) although the institutionalization of electronic identification in the eIDAS Regulation has occurred for the e-administration, it could evolve to be admitted in other sectors, even for cross- border relations between individuals; 5) the national legislation foreseeably will establish other effects to these institutions typified in the eIDAS Regulation, generating a greater fragmentation of the Digital Single Market; 6) and will also regulate new institutions for accreditation of electronic action, erecting new barriers to the Digital Single Market; 7) the requirement of a qualified service prevents the technological neutrality of the institutions for the accreditation of electronic action; 8) the reinforced intervention of public law in these institutions responds to overriding reasons relating to the public interest, but must also exist, with less intensity, even when they do not have qualification; 9) the regulatory model of qualified trust services gives excessive prominence to technical standards, which, however, do not guarantee a sufficient level of protection; 10) the eIDAS Regulation is committed to an administrative regime of access and permanence in a partially privatized market, based on independent technical evaluation based on technical standards; 11) the existence of a legal statute generally applicable to all trust services allows the ordering of a wider market of reliable institutions; and 12), however, the configuration at the national level of the supervision and sanctioning regime could negatively affect the competitiveness of the trust service providers operating in this market.