Digitisation and electronic archiving: evaluation criteria for qualified trust services (Ministerial Order No. 2021-247)

Ministerial Order n° 2021-247 of 25 March 2021 (JDM n° 8532 of 2 April 2021) implements articles 2 (qualified electronic archiving service) and 3 (qualified digitisation service) of Sovereign Order No. 8.099 of 16 June 2020 on trust services, which sets out the conditions for the application of Act n° 1.383 of 2 August 2011 for a digital Principality, as amended.

The security level of a digitisation or electronic archiving service may be simple or qualified. Ministerial Order No. 2021-247 of 25 March 2021 sets out in the Annex the requirements to be met by qualified trust services (SCoQ) for digitisation and electronic archiving, which are provided by qualified trust providers (PSCoQ).

These specific requirements apply cumulatively with those of Ministerial Order No. 2020-893 of 18 December 2020[1], the Annex to which sets out the criteria for assessing compliance with the General Security Reference System (RGS-Référentiel Général de Sécurité)[2] of PSCoQs. 

Compliance with the RGS in the Principality of Monaco is verified by a conformity assessment body (which may be located in Monaco or in the European Union, and whose accreditation is verified by the Director of the AMSN) at the expense of the trust service provider, and by the Monegasque Digital Security Agency (AMSN).

Qualified status is granted by the Director of AMSN, on the basis of the report drawn up by the conformity assessment body and the result of the conformity check carried out by AMSN.

The trust service of “document digitisation” and that of “electronic archiving” for the preservation of documents were introduced in Law No. 1.283 of 2 August 2011 for a Digital Principality, amended (by Law no. 1.482 of 17 December 2019) in parallel with the overhaul of the regime of copying in terms of proof of obligations.

According to the new article 1181 of the Civil Code[3], the “reliable copy” (replacing the former notion of “faithful and durable copy”) has the same probative value as the original, whether or not the original survives.

The reliability of the copy is left to the discretion of the judge. However, there are two presumptions of reliability:

– irrebuttable (incontestable) for the “enforceable or authentic copy of an authentic writing”;

– simple (until proven otherwise) for “a copy resulting from a reproduction of the content of the document, the integrity of which is guaranteed over time by a process that complies with conditions laid down by sovereign order”.

Where the copy benefits from a presumption of reliability, “the original need not be kept and its destruction is authorised under conditions laid down by sovereign order”. However, if the original remains, the judge may request its production.

The legislative and regulatory provisions on digital copies are applicable to documents and vouchers of all kinds, in the budgetary and accounting framework. [4]

Archiving is an obligation for companies (legal, regulatory) and a necessity (risk management and preservation of assets).

Electronic archiving, which covers the same functions (adapted to the dematerialised format) of memory and proof as traditional archiving, must not be confused with computer storage (which consists of recording data on a computer medium for current or immediate use) or computer backup (which consists of copying data to another medium to be able to restore them to a previous state, in the event of failure).

Electronic archiving is an important issue for Monegasque companies, given the small size of the Principality:

“Amaf [Association monégasque des activités financières, editor’s note] estimates that 6,000 m2 of space in Monaco is currently occupied by the paper archives of banks and management companies, which are required to keep everything (balance sheets, audit reports, etc.) for at least seven years. (…) Taking all sectors together, we think that the total gain in office space in the private sector will be around 15,000 m2. This is considerable. This represents a quarter of the living space of the offshore extension.”[5]

New prospects are thus opened up for Monegasque businesses, since a reliable digital copy preserved in conditions that prevent any alteration of its form and content will be able to replace a paper original.

[1] Articles 1 and 2 of Ministerial Order no. 2021-247 of 25 March 2021. Ministerial Order no. 2020-893 of 18 December 2020 implements article 12 of Ministerial Order no. 2020-461 of 6 July 2020 on the PSCoQ (which itself implements article 13 of Sovereign Order no. 8.099 of 16 June 2020 on the qualification of PSCoQs).

[2] The General Security Reference System (RGS) of the Principality of Monaco is annexed to Ministerial Order n° 2020-461 of 6 July 2020.

[3] The former art. 1881 of the Civil Code retained the principle that the copy was only authentic if the original survived, and its production could always be demanded. Article 1182 (hierarchy of copies where the original does not survive), paragraph 3 of article 1184 (presentation of the primary title and exemptions) and paragraph 3 of article 1195 (exception to the presentation of the original title in the case of a faithful and durable copy) of the Civil Code have been repealed.

[4] Article 54 of Law No 1.383 for a Digital Principality, as amended.

[5] Interview with Frédéric Genta, Interministerial Delegate in charge of the digital transition, Monaco-matin, published on 13/03/2020.

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