Brexit and a qualified electronic signature within the meaning of EU law

One of the consequences of Brexit, i.e. the formal withdrawal from the structures of the European Union by the United Kingdom of Great Britain and Northern Ireland, is the expiry (from 1 January 2021) of the “automatic” recognition of qualified trust services by EU Member States, including, in particular, qualified electronic signatures created by providers of qualified certificates having legal office in that country.

The practical importance of this problem can be easily shown by pointing out the fact that British citizens which are the members of the governing bodies in commercial companies registered under Polish law (e.g. members of the Management Boards) usually do not have any other, alternative method of placing electronic signatures, e.g. on financial statements (to subsequently send them to the Repository of Financial Documents), or on documents submitted in the course of public procurement procedures.

This leads to a situation where a signature meeting all the technical requirements provided for in the eIDAS Regulation 910/2014 (hereinafter: “the Regulation”), created before January 1, 2021 (i.e. before the date of formal cessation of legal recognition by EU Member States) after that date, becomes – at least from the point of view of legal acts involving the authorities of the Member States – a useless tool.

However, this condition does not have to be permanent, since pursuant to Art. 14 sec. 1 of the Regulation, trust services provided by trust service providers established in a third country shall be recognised as legally equivalent to qualified trust services provided by qualified trust service providers established in the Union where the trust services originating from the third country are recognised under an agreement concluded between the Union and the third country in question or an international organisation in accordance with Article 218 TFEU

Therefore, we shall assume that economic ties between the EU Member States and the United Kingdom may constitute a sufficiently convincing argument in the near future to conclude an international agreement leading to the recognition of such qualified electronic signatures by EU Member States. However, given the uncertainty of the future, it is worth considering using the services of qualified trust service providers based in the EU. In the event that such a signature is to be used in Poland, due to imperfections in the field of compatibility of electronic certification systems (which may cause problems, e.g. when trying to sign an application to the Polish beneficial owners register [CRBR] with a German electronic signature), it is worth considering using the services of Polish providers.

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