Part 1 // B2B
gEtting rid of papEr New Luxembourg legislation on virtual record-keeping aims to attract more multinationals to the Grand Duchy. Text: Aaron Grunwald | Photo: Julien Becker (archives)
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uxembourg has taken another step towards attracting the regional and global headquarters of multinational corporations with the introduction of the country’s new electronic archiving law. The bill is the first move in the EU, and possibly in the world, to put electronic versions of many legal documents on the same playing field as their paper counterparts. The measure – currently winding its way through the legislative process – updates the Grand Duchy’s 1986 archiving law, explains Raymond Faber, e-commerce and IT security manager at the economy and trade ministry. Under the existing system, if there ever is a conflict between a physical and virtual version of a document before a court, “the paper will always prevail” because “it’s always the paper which has more legal value”, he says. The new regime represents a huge shift. If “you are compliant with the legislation and with the conditions in the regulations, this means that in front of a tribunal the burden of proof changes” according to Faber. “It’s not you that will have to prove that the electronic document has been created and stored correctly, but it’s the other party who has to prove that it has not been done correctly. It’s a change in the burden of proof.” This legal proviso only covers organisations and individuals that have garnered certification as a “PSDC” or “dematerialisation and conservation service provider”. There are separate qualifications for creating and for storing such files. Those handling financial documents will also need to upgrade their “PSF” or “financial services professional” status with Luxembourg regulatory agency CSSF. “You don’t need to be a PSDC in order to electronically archive your own documents”, stresses Faber, but the accreditation is required if you
Raymond Faber, e-commerce and IT security manager, Luxembourg economy and trade ministry
want the legal “presumption” and if you plan to offer services to third parties. “Conservation can [cover] documents that have changed from paper to electronic, but as well native electronic documents which have ever existed on paper”, he notes.
first mover advantage Not everything is covered by the law, which only targets commercial agreements and contracts. Deeds and notarial acts are likely to be covered in future legislation. In addition, “we are just speaking about documents that have a legal value on paper already. We’re not trying to give an electronic copy value that it didn’t have previously”. Faber reckons 100% electronic records will not make people too nervous. “If the legal framework is clear enough, I think it will be OK” for most, although “mainly firms” will actually take advantage. Indeed, he expects many financial service companies and government agencies will be among those to start their own internal
Raymond Faber, chargé de la direction, ministère de l’Économie et du Commerce extérieur, direction du commerce électronique et de la sécurité informatique
PSDC operations, because they are legally required to keep records for years and “doing paper archiving today means renting enormous sized warehouses”. Faber believes Luxembourg’s is the first holistic European or international e-archiving law and is sure that “we’ll be the first to have this PSDC status, meaning that we have regulated the activity of third party providers.” This “gives their clients – banks or the government – a good feeling about the supervision of the quality.” “Many multinational firms should be interested in concentrating their e-archiving in one country, and we believe that this is a strong piece of the puzzle with all the other elements. We have a strong headquarters policy in Luxembourg, we have strong internet connections now, the best data centres you can imagine, and this would give them one more strong element to base cross-border activities in the Grand Duchy.” The economy ministry hopes the law will be finalised and detailed regulations published before the end of the year..
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