The use of electronic signatures in the European Business Registers

Introduction

Business Registries (BRs) play a crucial role in company law and in the life cycle of companies. These authorities have not been immune to technological change and the digitisation of public functions. In this way, BRs, traditionally paper-based, are progressively becoming a centralised, comprehensive and automated system at national level where products and services are delivered through online procedures and authentication of users and documents is carried out without requiring the physical presence of the interested parties.

 

There are currently a variety of digital tools for the registration and dissolution of companies, the archiving and exchange of information and any changes made during the operation of the company (for example, modifications to its articles of association, changes to the names of the legal representatives of companies or their annual accounts). In addition, the Company Registries help to comply with the obligations of the prevention of money laundering and financing of terrorism (PBC-FT) and Know Your Customer (KYC). 

 

This White Paper studies the experiences of European countries in the implementation of digital solutions for registry management, especially dealing with certificates and electronic signatures for the verification of the identity of founders and the remote processing of certain procedures, such as the presentation of annual accounts. 

Business Registers in the European Union

The Business Registries are public authorities whose main functions are the incorporation and dissolution of companies, as well as the examination and storage of information provided to them in compliance with company regulations. MRs are preparing to adapt to changes in EU legislation and to meet the challenges generated by the new legal landscape (digitisation, prevention of money laundering, etc.).  

 

Fortunately, these are administrations where the penetration of Information and Communication Technologies (ICT) is highest. For decades, the MR have carried out many activities aimed at electronic archiving, digital signatures, access to data and their security. 

 

In accordance with European legislation, each EU Member State is competent to establish the organisational system of registry management. This is why there are as many forms of organisation of commercial registers as there are Member States. The following table shows the various management options that may exist according to the authorities involved. In some countries the management of the registry is carried out by a specialised body under the Ministry of Justice, Trade or Industry. In others, the local Chambers of Commerce are responsible, with supervision by the courts where appropriate. Another possibility is that registry management is linked to the jurisdiction, i.e. the Commercial Courts.  

 

Table 1. MAIN AUTHORITIES INVOLVED IN COMPANY LAW 

Country

Notary (or lawyer)

Business Register

Local Commercial Court

One Stop Shop

Austria

 

Belgium

 

Bulgaria 

   

Croatia 

 

 

Cyprus 

( X )

 

Czech Republic

 

 

Denmark

 

 

Estonia

 

Finland 

 

 

France

   

Germany 

   

Greece

 

 

Hungary

( X )

 

 

Ireland 

 

   

Italy

 

Latvia 

     

Lithuania

 

 

Luxembourg

   

Malta

   

Netherlands

     

Poland 

   

Portugal 

 

 

Romania 

 

 

Slovakia

 

Slovenia

     

Spain

 

Sweden

 

In most countries, access to company information is provided through the Business Registers. Companies are required to provide and keep up to date certain information such as their name, registered office, directors and share capital. Data from the Business Registers can be useful and valuable. Currently they are mainly used by third parties to comply with due diligence obligations, KYC (Know Your Client), other obligations derived from the provisions for the Anti-Money Laundering (AML) and to ensure compliance with tax regulations.

Use of identity verification methods and electronic signatures in European Business Registers

Business Registries face a number of challenges in providing their services in electronic form. Among them, the most important is that of guaranteeing the legal validity of electronic documents, certificates and electronic signatures. They define the rules for sending and receiving data, guarantee their integrity and the protection of the database.  

 

In the field of commercial registers, authentication of the parties providing the information is required. That is to say, it is necessary to be able to reasonably trust the fact that the interested party and/or presenter is who they declare to be. The authentication of the party sending an electronic document is governed by the rules on electronic signatures, i.e. Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation).  The following chart shows the different methods used in European trade registers to verify the identity of the person submitting information electronically.

 

CHART 1. METHODS USED FOR ELECTRONIC IDENTIFICATION AT EUROPEAN LEVEL

Source: Prepared by the authors on the basis of data from "The International Business Registers Report", EBRA (2019)

 

It can be seen that electronic certificates are the most widely used methods for identifying persons at European level (Belgium, Estonia, France, Ireland, Latvia, Luxembourg, Portugal, Slovenia, Spain, Sweden) followed by two-factor authentication (Belgium, Denmark, Italy and Norway) and through notaries (Czech Republic, Germany and Italy). From the available data, it is concluded that the method of using a user ID and password is anecdotal in Europe (it only occurs in Romania), despite representing the predominant identity verification method worldwide in the field of BRs.

Authentication of the party sending the document, as well as authentication of its contents, are key elements in ensuring trust and the corresponding use of the BR system. In these cases, both the weakest and strongest electronic signature requirements are appropriate for BR submissions. Both weak and strong signatures provide a minimum level of "authentication". However, only strong signatures guarantee the integrity of the content of the electronic document to which the signature is attached. Among the types of signatures covered by the eIDAS Regulation, qualified electronic signatures have the highest degree of security and have the same legal effect as a handwritten signature. 

 

Cross-border recognition of certificates and digital signatures is also essential for the interconnection of BRs. Thus, ensuring the interoperability of the registers within the system for the interconnection of registers in the EU requires electronic communication and transmission of information using interoperable technologies throughout the Union. Among this type of technology, qualified signatures are of particular importance. In this respect, Article 25.3 of the eIDAS Regulation establishes that a qualified electronic signature based on a qualified certificate issued in one Member State is recognised as a qualified electronic signature in all other Member States.

Use of electronic services by Business Registers

Companies should be able to choose to file their compulsory documents and particulars by paper means or by electronic means in accordance with Directive (EU) 2017/1132 on certain aspects of company law. This is why improving the provision of electronic services is a priority in many European countries with a view to implementing digital business registers (e-BR). Their use is an important tool for increasing efficiency, speed, improving processes, reducing costs, providing a better service for customers and collaborating to combat fraud.

 

Currently, electronic means are used to carry out the following procedures: 

⇨ Electronic communication and filing of documents with the Business Register

 

Digitisation makes it possible to convert paper-based communication between companies and Trade Registers into electronic communications. In these cases, the registered company does not need to execute and send documents, which it often already has in digital format, and the registry is freed from the burden of digitising incoming information.

⇨ Creation of the companies

 

The creation of companies in the European Union using electronic devices is regulated by Directive 2019/1151, which amends Directive 2017/1132 with regard to the use of digital tools and processes in the field of company law. This instrument allows the incorporation of limited liability companies and the registration of branches online, and facilitates advertising and access to information through digital means. 

 

The transposition of this Directive into Member States' national laws allows companies to be set up digitally, without the physical presence of the founders or their representatives and without having to provide documents or information on paper. To this end, founders must be identified by electronic means, with electronic certificates for electronic signatures being a secure medium, as provided for in the eIDAS Regulation. All the procedures can be carried out online and remotely, presenting the documentation in electronic format. 

 

Similarly, the presentation of documentation and information and access to it can be done online. All documents and information submitted will be stored in a format suitable for mechanical reading and searches or as structured data. It must also be possible to obtain an online copy of all corporate acts that are to be published. This copy must be authenticated by the trusted services referred to in Regulation 910/2014.

 

⇨ Presentation of the annual accounts

 

The presentation of the annual accounts can be done in most jurisdictions by means of electronic signatures as long as a digital certificate is held.  Similarly, the format of the accounts is often electronic: images, PDF, XBRL or others. From a global perspective it can be seen that the electronic format other than XBRL (Extensible Business Reporting Language) represents the main format in which annual accounts are accepted in the Mercantile Registers, followed by paper and image format, while XBRL represents the least accepted method in which annual accounts are filed. In the European Union there is no uniformity, so in some countries, such as the Czech Republic and Ireland, annual accounts are presented only in image format (i.e. with a scanned PDF); in other states, such as Denmark and Italy, annual accounts are presented only in XBRL format; and the electronic format other than XBRL represents the only format in which annual accounts are presented in countries such as Lithuania and Portugal.

 

Most countries generally accept different formats for the presentation of annual accounts. The following image shows a list of countries with the accepted formats and the percentage of annual accounts according to the format presented:

 

CHART 2. PERCENTAGE OF THE MEDIA IN WHICH THE ANNUAL ACCOUNTS ARE PRESENTED IN EUROPE

Source: Prepared by the authors on the basis of data from "The International Business Registers Report", EBRA (2019)

⇨ Combating fraud

 

Corporate identity theft has become a concern for Business Registers with the online presentation of commercial and business information. The most common methods for the prevention of corporate identity theft are electronic and have focused on the electronic presentation of documentation. In the following graph you can see the most frequent corporate identity theft prevention measures at a global level: 

 

CHART 3. NUMBER OF IDENTITY THEFT PREVENTION MEASURES

Source: "The International Business Registers Report", EBRA (2019)

 

In the previous graph it can be seen that both the user name and password (very common in the North American jurisdiction) and the use of electronic signatures (in European regulations) are the two most common methods for preventing fraud in the area of the Commercial Registry. Similarly, in the section "others" there is an amalgam of measures ranging from biometric control to the fact that registration can only be carried out by an authorised trust company which must carry out certification before registration".

Benefits of electronic services in Business Registers 

Electronic Business Registers report a large number of benefits compared to physical records based on office visits and paper forms. Good e-government practice offers users greater efficiency which translates into:

 

  • Reduction of the time of the procedures. While in paper format several days or weeks are required to carry out the services, in the online version they can be done in a few hours. In the following table you can see the processing times of the business registration through the paper format and/or Internet:

Table 2. PROCESSING TIME FOR THE REGISTRATION OF COMPANIES. DIFFERENCES BETWEEN THE PAPER AND INTERNET METHOD (IN HOURS)

 

Countries

Paper (h)

Internet (h)

Germany

-

16

Denmark

18.10

18.38

Estonia

-

14.68

France

8.00

8.00

Latvia

23.98

23.98

Lithuania

72.00

24.00

Luxembourg

-

24

Norway

1.00

0.25

Portugal

1.50

1.00

Romania

16.00

16.00

Sweden

1.00

0.50

Source: Prepared by the authors based on data from "The International Business Registers Report", EBRA (2019)

In the table above it can be seen that a change in the method of presentation alone does not necessarily speed up the registration process. However, registration through image or data files seems to cause a modification of the working processes within the business records, which in turn, results in a significant acceleration of the registration process.

 

  • Transparency. Any interested party can obtain the information they require from an RM about the registered companies. Although it is true that electronic Business Registries require office automation, Internet, language, etc. knowledge that can reduce the accessibility to their services. 

 

  • Immediate and real time access to information updates at the moment of the electronic Business Register, in contrast to waiting for a new entry from the paper-based Register. 

 

  • Streamlining of processes. Services that previously required several steps, even in different physical locations, can now be performed in one step online. 

 

  • Improved service availability. Electronic services are available 24 hours a day, 7 days a week, compared to the opening hours of the Business Registry offices. 

 

  • Elimination of the obstacles of going to the Business Registry offices in person, such as long queues and traffic jams.

 

  • Improvement in data accuracy, minimising manual paper-based data entry and enabling data validation. In addition, a considerable reduction in the time needed to correct possible errors. 

 

  • Safer processes. In some countries, such as Italy, the process allows automatic verification of identities and positions, and of course of signatures.

 

  • Reduced costs and improved efficiency of companies through the possibility of online data presentation, especially in the case of the presentation of annual accounts. As an example, in Spain it was calculated that each transaction that required physical presence has an approximate cost of EUR 80, while the same transaction by electronic means has a cost of EUR 5 to 8.

 

  • Reducing the cost of maintaining the registers, mainly by reducing paper and archiving, as well as the amount and cost of administrative tasks 

 

  • Better tool for market surveillance and monitoring of companies. Electronic registers allow easy aggregation of business data by sector, industry or geographical area. Similarly, data such as the creation and termination of companies and profits facilitate analytical work and investment decisions.  

Methodology note

The charts have been made using data from the European Business Registry Association (EBRA) report "The International Business Registers Report 2019". Every year they carry out a survey in which 93 organisations/jurisdictions participate. The data from the European Union Member States have been selected. 

Recommendations

The digitisation of trade registers in Europe has many advantages for administrations, stakeholders and individuals. States are facing a large number of challenges when they opt for electronic solutions in the design of new strategies. Legislation and practice are shifting towards electronic signature certificates both for identifying the founders of companies and for carrying out procedures. This is one of the methods that offer the most guarantees and security. 

 

One of the advantages of this solution is that it allows the recognition of foreign electronic signatures. The acceptance of foreign electronic signatures allows for the interoperability and interconnection of European trade registers and facilitates the creation of subsidiaries in other countries.

Factsheets: Germany

The German Business Register (Handelsregister) plays an important role in the establishment of companies and their registration. However, digitalisation has not yet had all the desired effects in the country, with most procedures requiring the physical presence of a notary. The procedures that can be carried out online by means of electronic signatures are as follows 

 

  • Verification of the identity of company founders. This procedure is carried out in the presence of a notary public who subsequently transforms this information into an electronic certificate and sends it online to the Business Register. 
  • Drafting, signing and certification of the documents required for registration. These operations are carried out online by a notary public with a qualified electronic signature device. 
  • Registration of companies. Once all the necessary documents have been drawn up and collected, the notary public scans them and generates officially certified copies by means of a qualified electronic signature. In addition, he completes all the relevant data using structured .xml data for entry in the Commercial Register. However, the company representatives (founders and directors) must carry out the steps following a traditional process that requires physical presence. In this way, the founders are not actively involved in the registration process.
  • Accounting documents for each financial year/updating of the company's books These documents must be sent (in electronic format) to the Bundesanzeiger Verlag GmbH for publication in the Bundesanzeiger (Official Journal). The electronic procedure for submitting annual documents was implemented in Germany in 2006 and became mandatory for companies in 2007. Since then companies are no longer allowed to carry out this procedure on paper.

Factsheet: France

In France, the local commercial and company registers (Registres du Commerce et des Sociétés, RCS) are run by the secretaries of the commercial courts and the civil courts with commercial jurisdiction. The National Registry of Commerce and Companies (Registre National du Commerce et des Sociétés, RNCS) is managed by the National Institute of Industrial Property (Institut National de la Propriété Industrielle, INPI), which centralises the original documents of the RCS managed at each registry.

 

The importance of the RM in France is such that they are responsible for the management and archiving of all company information, as well as the certification and authentication of all information sent. In short, it is involved in the vast majority of procedures in the company's life cycle. The procedures are highly digitised since the digitisation of company law began approximately 30 years ago. Nowadays, the founders of companies can carry out most of the processes online. Among them, the following stand out: 

 

  • Verification of the identity of the founders. The verification of the founder's identity can be done online. Similarly, any valid identification document from any country, whether from an EU Member State or a third country, can be sent for identity verification.
  • Drafting, signing and certifying the documents required for registration.
  • Registration of the company.
  • Amendments to the instruments of incorporation or statutes.
  • Presentation of annual accounts.
  • Dissolution.

Factsheet: Italy

The Italian Registry of Companies (Registro delle Imprese) is managed by the Chamber of Commerce (Camere di commercio), with the help of Unioncamere, under the supervision of the Registry Judge and the Ministry of Economic Development. The BR in Italy is deeply digitised, as a result, firstly, of Article 31 of Law No 340 of 2000, which obliged almost all types of companies to use a digital signature and computer tools to prepare registration applications and attached documents and to send them to the RM. Secondly, Article 9 of Decree Law No. 7 of 2007 requires all types of companies to use digital signatures and electronic channels.

 

The procedures that can be carried out telematically in the BR are as follows:

  • Registration of a new company. The registration of a company in the Commercial Register must be completed electronically using the form "Comunicazione Unica d'Impresa", and a digital signature is required. 
  • Dissolution of the companies. The request for the dissolution of a company from the Commercial Register is submitted electronically through a competent Chamber of Commerce, by means of a Single Communication practice consisting of a single business communication model and the Commercial Register form.

Factsheet: Spain

The Spanish Business Registries have designed and implemented digital tools to modernise company law and simplify procedures in relation to the BR. In this way, there has been a great reduction in time, costs and administrative fees. However, company owners, or administrators, still need to physically assist notaries in order to obtain notarial deeds at certain stages of the company's life cycle. Amongst all the procedures that can be carried out online are listed below:

 

  • Verification of the identity of the founders. Verification of identity can be done by logging in to certain platforms using an electronic certificate. However, it is confirmed and certified before a notary in the drafting and signing of the notarial deeds. 
  • Drafting, signing and authentication of the documents required for registration. The documents can be sent via online methods. However, the presence of a notary is compulsory. 
  • Publication of the company register.
  • Amendments to the instruments of incorporation or statutes. Most amendments to the instruments of incorporation or statutes need to be certified by a notarial deed that is entered in the Business Register. The appointment and revocation of directors/board members does not require a notarial deed and can therefore be done online before the BR.
  • Presentation of annual accounts.
  • Further life cycle procedures can be carried out with an electronic signature: 
  • Application for Calling of Meeting or Assembly of Bondholders by the Mercantile Registry. 
  • Application for appointment of auditor, under article 265.1 L.S.C and 265.2 L.S.C. 
  • Application for the appointment of an auditor to issue a certificate accrediting the sufficiency of the liabilities. 
  • Application of the procedure for reaching an out-of-court settlement. 
  • Application for the appointment of an expert: 

-  Valuation of shares and holdings

- Separation

  • Request for appointment of independent expert: 

-  Non-monetary contribution in the constitution of a public limited company (article 67 L.S.C.)

- Onerous acquisitions in a public limited company up to two years after its registration in the Commercial Register (Art. 72 L.S.C.)

- Transformation into a Public Limited Company

  • Application for appointment of:

- Auditor for the capital increase charged to reserves (art. 303 L.S.C.)

- Auditor for the capital increase by offsetting credits (art. 301 L.S.C.)

- Independent expert. Assessment of the viability plan in a debt refinancing agreement with creditors

  • Application for registration as an entrepreneur with limited liability 
  • Application for withdrawal of presentation seat
  • Merger projects by absorption 
  • Termination and appointment in public and private companies
  • Discharge of and Revocation of powers.
  • Cessation and appointment. Certification according to the model of the office.
  • Registration and deregistration from the Commercial Registry of companies and trusts

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