Is it possible to sign documents between Ukrainian and foreign (European) counterparties? If possible, how? If not, when will it be possible? Serhiy Lytvynenko, the director of the IT company LITIKO, provided a reasoned answer with references to regulations and other resources.
The relevant issue of legally significant documents for international business operations.
This question often arises during meetings with our clients when selecting a solution for document flow automation. In 2023, there were news reports about the implementation by the Ministry of Digital Transformation of the e-document signature service via Diia.Signature-EU: An important step toward a digital visa-free regime: join the beta test of Diia.Signature, which meets EU requirements | Ministry of Digital Transformation (thedigital.gov.ua). We have researched this issue and are ready to share the results with you.
Testing document signing with Diia.Signature-EU.
Indeed, as of today, document signing with the ‘Diia’ app can be done on two platforms:
- GOV.UA (ICEI): https://id.gov.ua/
- on the Vchasno document flow service
According to the developers of the ‘Diia’ app, during the activation of Diia.Signature, a key is automatically generated that meets EU requirements.
For users of ‘Diia’, nothing has changed on the outside, and the signing process remains just as simple: you either wink or smile and enter your Diia.Signature code.
When using the ‘File Signing’ service on the platform, you need to choose the Diia.Signature-EU option.
As a result, we will get the ‘Signed’ status in the ‘Diia’ app, and the signed file that can be retrieved and saved using the platform.
Legislation related to electronic document flow between Ukraine and EU countries.
The primary law that allows electronic document flow in Ukraine is the ‘Law on Electronic Documents and Electronic Document Flow’, and all legislative acts related to electronic document flow and the use of electronic documents can be found via the link: ‘Law on Electronic Documents and … | from 22.05.2003 № 851-IV (rada.gov.ua)’.
The decree ‘On the implementation of an experimental project for the mutual recognition of electronic trust services between Ukraine and the European Union’ – ‘On the implementation of the experimental … | from 22.11.2022 № 1311 (rada.gov.ua)‘.
The decree agrees on a project for the mutual recognition of electronic trust services between Ukraine and the EU, with the implementation term until August 20, 2024.
The State Enterprise ‘DIYA’ is responsible for the technical and technological support for the project implementation.
Until the agreement between Ukraine and the EU on mutual recognition of electronic trust services is signed, as well as agreements with other countries, Ukraine recognizes qualified electronic signatures provided by qualified electronic trust service providers in EU member states and other European Economic Area member states, which are included in the EU Trusted List.
3. The decree ‘On recognition of foreign public key certificates, electronic signatures in Ukraine’ – ‘Some issues of recognition of foreign… | from 14.11.2023 № 1198 (rada.gov.ua)‘.
The procedure approved by this decree applies to legal entities and individuals, as it relates to legally significant electronic services ‘resulting in legal consequences aimed at acquiring, modifying, or terminating the rights and/or obligations of individuals or legal entities, and which are provided using electronic trust services.’
This procedure recognizes the mutual use of Ukrainian and foreign public key certificates and electronic signatures used to provide legally significant electronic services, BUT this use must be ensured by ‘Ministry of Digital Transformation as the central certification authority by ensuring the conclusion of relevant international agreements of Ukraine.’
In the meantime, according to paragraph 7 of the Procedure, ‘The Ministry of Digital Transformation, as the central certification authority, takes measures to implement the norms of international law and the law of the European Union in the field of electronic identification and electronic trust services, as well as coordinates the necessary actions to ensure the interoperability of technical solutions in the field of electronic identification and electronic trust services.
Conclusions about electronic digital signatures.
As of April 2024, document signing via Diia.Signature-EU is operational.
However, legally, there is no complete mutual recognition of electronic signatures between Ukraine and foreign (European) counterparties.
The implementation term for the state project in this area is August 20, 2024, as established by the Cabinet of Ministers of Ukraine’s decree ‘On the implementation of an experimental project for the mutual recognition of electronic trust services between Ukraine and the European Union.’ https://zakon.rada.gov.ua/laws/show/1311-2022-%D0%BF#n23
Thus, we expect this possibility no later than two months after the project’s completion, which would be October 2024, with information about the results published on the Ministry of Digital Transformation’s official website.