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30/10/2024
2024 ITechLaw European Conference in Munich
CMS lawyers are pleased to be attending the ITechLaw European Conference 2024 held in Munich on 30 October - 1 November. Below you can find our top tips for those visiting Munich for the conference, helpfully provided by our Technology lawyers based in the Munich office:Munich (Germany) is the capital of Bavaria. It is a city strongly influenced by Bavarian traditions and rich in history and culture. Many people refer to Munich as the northernmost city in Italy. This is due to the mild summer climate, a touch of Mediterranean flair and the short geographical distance to Italy. Some Facts: Distances:From Munich to the Italian border = 180 Km (approx. 112 miles)From Munich to Hamburg = 770 Km (approx. 480 miles)From Munich to Berlin (580 Km (approx. 360 miles)Pop­u­la­tion:1.589.706 inhabitants (2024). The third-largest city in Germany after Berlin and Ham­burgThe city's metropolitan region is home to about 6.2 million people and the third biggest metropolitan region by GDP in the European Uni­on­Re­com­men­ded:Art and Culture: Munich boasts world-class museums, galleries, and theaters. Visit the Alte Pinakothek for art lovers, the Deutsches Museum for science enthusiasts, and catch a performance at the Bavarian State Opera. Rich History: Munich is steeped in history, from its medieval origins to its role as the capital of Bavaria. Explore iconic landmarks like Marienplatz, Nymphenburg Palace, and the historic city gates. Green Spaces: Escape the hustle and bustle of the city in Munich's expansive green spaces. Relax in the English Garden, one of the largest urban parks in the world, or explore the botanical wonders of the Botanical Garden. Transportation: Munich's efficient public transportation system makes it easy to navigate the city. Utilize the U-Bahn, S-Bahn, trams, and buses (the easiest way to buy tickets is via MVV app), or explore by bike along the city's extensive network of cycling paths. Day Trips: Take advantage of Munich's central location to explore nearby attractions. Embark on day trips to the fairytale Neuschwanstein Castle, the picturesque town of Rothenburg ob der Tauber, or the charming villages of the Bavarian Alps. English-friendly Destination: While German is the official language, English is widely spoken and understood in Munich. Visitors can easily communicate with locals and navigate the city without language barriers. Safety and Cleanliness: Munich is known for its safety and cleanliness. Enjoy peace of mind as you explore the city's streets, parks, and attractions. Beer Culture: Munich is synonymous with beer, particularly during Oktoberfest. Experience Bavarian beer culture at traditional beer gardens like Hofbräuhaus and Au­gustin­er-Keller. Bavarian Cuisine: Indulge in hearty Bavarian dishes such as weißwurst (white sausage), pretzels, schnitzel, and sauerkraut. Don't miss out on trying traditional Bavarian delicacies at local restaurants and beer gardens e.g. Hofbräuhaus. Not re­com­men­ded:Trav­el­ling without cash: Don’t forget cash (there are still many local markets and smaller establishments that don't accept credit cards in Munich). Late hour shopping: Don't expect 24/7 shopping (unlike most major cities, Munich has strict shopping hours, and the shops close at 8pm on weekdays). Ordering the wrong beer: Don’t order a “Pilsener (Pils)”, always order a “Helles”. Feeding the pigeons: Feeding pigeons is not allowed in and around Munich. Walking on bike lanes: Munich is full of cyclists and there are many bike lanes. Please be aware that there might be a lot of traffic on the bike lanes and watch out for speedy cyclists when you are a pedestrian. At CMS, we are proud to have some of the leading global legal specialists in the technology, media and communications sector. Fuelled by huge customer demand for cutting-edge products and increased supply of pioneering services, the sectors of technology, media and communications are each undergoing unprecedented change. Innovation is key, and so tech and telecoms suppliers, and creators and distributors of media, need to protect their investments and maximise their commercial opportunities. At CMS, our global team of over 1000 specialist Technology, Media and Communications (TMC) lawyers has been exposed to virtually every risk and challenge you face. With our long-standing focus on advising suppliers, users, regulators and financiers in the sector, we are best placed to deliver innovative solutions through our award-winning disputes, transactions, IP, commercial, data privacy and security, employment and tax practices. To find out more about our capabilities across TMC, please visit International TMC webpage.
24/10/2024
10th CMS Public Procurement Forum
 
11/09/2024
2024 Insurance sector webinar programme
Notwithstanding the extraordinary times we’ve all been operating in, the insurance sector continues to deal with fast-paced changes. Insurance companies should keep up with changing regulations and market trends that will impact on their day-to-day operations and long-term business. It has become crucial for (re)insurers, brokers, their risk managers and general counsels to get the right insight and advice across a wide range of claims and coverage, and regulatory and corporate issues. To deliver the expert responses that the insurance market needs, the CMS Insurance Group has developed a comprehensive programme for 2024.
16/07/2024
Cross-border Financial Services 2024 webinar series
We're delighted to announce the launch of our third season of international webinars focusing on financial regulation, starting on 13 March 2024. Whether you are an in-house lawyer, compliance officer, financial analyst, risk manager, or any other professional concerned with maintaining the integrity of your organisation's financial practices, this series offers succinct 20-30 minute overviews of key industry trends and regulatory concerns across mul­tiple jur­is­dic­tions. If you have any additional topics that you would like us to add or address at one of the webinars, please contact us. Upcoming Webinars: 16 July: Handling a challenging ap­plic­a­tion  Your application for a licence, product approval or change in control is meeting with regulatory resistance.  How can you surmount these challenges?31 July: Dawn Raids  Un­an­nounced regulator visits are on the increase.  We look at what triggers a dawn raid, your rights if one happens, and how best to manage the consequences.4 September: Navigating the global ESG land­scape Is the regulatory reporting jigsaw puzzle causing more harm than good? We will provide an overview of the main cross-border issues impacting global financial institutions as they seek to manage ever expanding ESG regulations and discuss whether these rules are helping or hindering the action we need for change. The language of the webinar will be English.
12/07/2024
Unregulated special limited partnership (“SCSp”) in Luxembourg
Published on July 12, 2024This Back to Basics note follows our key concepts briefings, which intend to provide high-level insights regarding funds fundamentals, funds vehicles and operational considerations, available here. What is a SCSp? The Luxembourg special limited partnership (société en commandite spéciale – SCSp) is a fund structure introduced in 2013 following the adoption of the law of 12 July 2013 on alternative investment fund managers (the AIFM Law). The SCSp differs from the common limited partnership (société en commandite simple - SCS) notably by the fact that it does not have legal personality. SCSps are subject to the law of 10 august 1915 on commercial compagnies (the 1915 Law) and to the AIFM Law to the extent that it qualifies as an alternative investment fund (AIF). It can in addition be subject to a product regime when used for a regulated fund vehicle (Part II UCI, SIF, SICAR or RAIF). Key features Eligible investors:There is no restriction on eligible investors for unregulated SCSps. Eligible assets:There is no restriction on eligible assets for an unregulated SCSp. Struc­tur­a­tion:SC­Sps are open or closed entities. They can only be formed as a single fund (umbrella structure not available). Set up:An SCSp is formed, for a limited or unlimited duration, by one or more partners with unlimited and joint and several liability for all the obligations of the partnership, and one or more limited partners who only contribute a specific amount constituting partnership interests which may but need not be represented by instruments, as provided in the partnership agreement. The fund is set up by means of a limited partnership agreement which can be made by private or public deed and offers a large flexibility on the set up. All Luxembourg SCSps must maintain a register of the partners. This register must be accessible to any partner, unless the limited partnership agreement disposes otherwise. Capital re­quire­ments:There is no minimum capital requirement for SCSps. Liability of partners:General partners (associés commandités) have unlimited joint and several liability for the obligations of the SCSp, whereas limited partners (associés commanditaires) are only liable up to the amount of their respective contributions or commitments. Limited partners are prohibited from carrying out any act of management vis-à-vis third parties. The general partner may act both as general partner (associé commandité) and manager (gérant) of the SCSp, hence being considered as managing general partner (associé commandité - gérant) and therefore also being held liable in its capacity as manager. Di­ver­si­fic­a­tion:There are no diversification requirements for unregulated SCSps. Marketing:An SCSp only benefits from the European marketing passport to the extent that it falls under the scope of the full regime of the alternative investment fund managers directive (AIFMD). Service providers: To the extent that the SCSp qualifies as an AIF that is not self-managed and above the AIFMD threshold, the following service providers are required:an authorised AIFM;a depositary having its registered office in Luxembourg or a branch in Luxembourg (if its registered office is in another Member State of the European Union), to ensure the safe keeping of its assets;an authorised independent auditor with appropriate professional experience to audit the annual report;a central administrator which is located in Luxembourg;a portfolio manager in case of delegation by the AIFM. Tax regime: An SCSp is tax transparent for corporate income tax and net wealth tax purposes. An SCSp qualifying as AIF is not subject to municipal business tax since it is not a business enterprise carrying out a commercial activity. The SCSp will however be deemed to be a business enterprise if its general partner is a capital company holding 5% or more of its partnership interests. Distributions made by an SCSp are not subject to Luxembourg withholding tax. An SCSp is generally not entitled to double tax treaties concluded by Luxembourg. The VAT status of an SCSp will depend on the activities performed. Main advantages of an SCSp:The main advantages for choosing the SCSp are, inter alia, that:it is internationally recognised and resembles the Anglo-Saxon limited partnership structures;it offers a high level of contractual flexibility and most of the rules can be freely determined in the partnership agreement, as there are very few compulsory provisions in the 1915 Law;it can be easily and rapidly set up and is subject to very limited registration formalities, allowing short time to market;it is not subject to CSSF authorisation or prudential supervision;it is tax transparent from a corporate and tax perspective;it offers confidentiality, as the information published on the Luxembourg Trade and Companies Register is limited to key provisions and does not include the identity of the limited partners nor their contributions; andit is not subject to any minimum capital requirement or minimum investment amount.
12/07/2024
The reserved alternative investment fund (“RAIF”) in Luxembourg - UPDATED
Updated on July 12, 2024This Back to Basics note follows our key concepts briefings, which intend to provide high-level insights regarding funds fundamentals, funds vehicles and operational considerations, available here. What is a RAIF? Luxembourg introduced the RAIF by a law of 23 July 2016 (the RAIF Law). RAIFs are also subject to the law of 12 July 2013 on Alternative Investment Fund Managers (the AIFM Law). RAIFs are considered as semi-regulated funds because they are not subject to the supervision of the Commission de Surveillance du Secteur Financier (CSSF), the Luxembourg supervisory authority but still involve the nomination of a duly authorised alternative investment fund manager (AIFM) subject to the AIFM Law. The RAIF regime aims at introducing a model with a less sophisticated process than regulated funds, without a double supervision by the CSSF, which make it more attractive for investment funds and asset management. The Luxembourg regime aligns with the European Union (EU)’s approach, through the Directive on AIFMs (the AIFMD), to focus on management supervision rather than product supervision. Key features Eligible investors:RAIFs are reserved for “well-informed investors”, who are:In­sti­tu­tion­al and professional investors (within the meaning Annex II to Directive 2014/65/EU); or Other investors who have stated in writing that they adhere to the status of well-informed investor and, either (i) invest a minimum of 100,000 Euros in the RAIF or (ii) have been the subject of an assessment made by a credit institution, an investment firm or a UCITS management company or an authorised AIFM certifying their expertise, experience and knowledge to adequately appraise the contemplated investment in the RAIF. Eligible assets:There is no restriction on the eligible assets. A RAIF may state in its constitutive documents that its exclusive purpose is to invest in risk capital, in which case the portfolio is limited to investments in risk cap­it­al. Cor­por­ate form and struc­tur­a­tion:RAIFs are open or closed entities which take the form of:Fonds commun de placement (FCP) or common contractual fund, which is a fund without legal personality managed by a Luxembourg management company; orSociété d’In­ves­t­isse­ment à Capital Variable (SICAV) or investment company with variable capital, in the form of a corporate entity (e.g. SA, SCA, Sàrl) or of a partnership with or without legal personality (SCS or SCSp). RAIF can be formed as a single fund or as an umbrella structure with an unlimited number of ring-fenced sub-funds. Each sub-fund can have its own investment policy, specific features, governing rules or investment manager. Set up:The RAIF may be set up as a partnership, a corporate company or an FCP further to the establishment or incorporation process of such entity (e.g. execution of a LPA, management regulations or incorporation of the company in front of a Luxembourg notary). The RAIF must establish an offering document which includes the information necessary for investors to be able to make an informed assessment of the investment and related risks. The service agreements of the mandatory RAIF’s service providers (as set out below) must be effective as of the date of its establishment / incorporation. The RAIF must be registered on the official list of RAIFs held with the Luxembourg trade and companies register. Capital requirements:The net assets of a RAIF may not be less than EUR 1,250,000, which must be reached within a period of twenty-four months following the entry into force of the management regulations of the FCP or from the incorporation of the SICAV. Only 5% of the capital must be paid up on subscription. Di­ver­si­fic­a­tion:RAIFs are subject to an obligation of diversification. The RAIF Law does not impose diversification rules. In practice, a limitation of 30% of the RAIF gross assets in any single investment is generally applied. RAIFs may benefit from an initial ramp-up period to comply with the above risk-spreading rules. These above diversification requirements do not apply to RAIFs investing solely in “risk capital” investments. Marketing:RAIFs benefit from the European marketing passport provided by the AIFMD to market shares, units or partnership interests across the European Economic Area. Service providers:RAIFs must appoint several service providers, the main ones being as follows:an authorised AIFM. RAIFs cannot be internally managed;a depositary having its registered office in Luxembourg or a branch in Luxembourg (if its registered office is in another Member State of the European Union), to ensure the safe keeping of its assets;an authorised independent auditor with appropriate professional experience which must audit the annual report; a central administrator whose head office must be located in Luxembourg; and a portfolio manager in case of delegation by the AIFM. Tax regime: Default RegimeRAIFs are not subject to corporate income tax, municipal business tax or net wealth tax but are subject to an annual subscription tax of 0.01% on their net assets (calculated and payable on a quarterly basis). Some exemptions from subscription tax apply depending on the investment assets (e.g., assets invested in other Luxembourg UCIs subject to this subscription tax, investment in microfinance institutions and pension fund pooling vehicles). Distributions made by RAIFs are not subject to withholding tax. RAIFs established under a corporate form may benefit from some tax treaties concluded by Luxembourg. RAIF investing in risk capitalThis regime is similar to the SICAR regime. RAIF under a corporate form will be subject to corporate income tax and municipal business tax at the aggregate rate of 24,94% (for Luxembourg-city in 2023) with an exemption available for income and gains derived from (i) transferable securities representing investments in risk capital and (ii) income arising from funds held pending their investment in risk capital (only applicable for a maximum period of twelve months preceding their investment in risk capital and where it can be established that the funds have effectively been invested in risk capital). RAIFs will be exempt from Luxembourg net wealth tax except for the minimum net wealth tax. Dis­tri­bu­tions made by RAIFs are not subject to withholding tax in Lux­em­bourg. RAIFs should have access to the double tax treaties concluded by Lux­em­bourg.  RAIFs under a partnership form are tax transparent and are not subject to corporate income tax, municipal business tax and net wealth tax. Distributions made by RAIFs are not subject to withholding tax. RAIFs should not be entitled to the double tax treaties concluded by Lux­em­bourg. RAIFs under a corporate form are subject to 20% real estate tax on rental income and capital gains realized upon disposal of Luxembourg real estate assets and disposal of interests or units in Luxembourg tax transparent entities or mutual funds holding Luxembourg real estate as­sets. Man­age­ment services rendered to RAIFs are exempt from VAT. Investment management services provided to RAIFs are exempt from VAT.   In Brief:
12/07/2024
Specialised investment fund (“SIF”) in Luxembourg
Published on July 12, 2024This Back to Basics note follows our key concepts briefings, which intend to provide high-level insights regarding funds fundamentals, funds vehicles and operational considerations, available here. What is a SIF? The SIF is an investment fund that can invest in all types of assets as permitted under the law of 13 February 2007 (the SIF Law). Following the law of 12 July 2013 on alternative investment fund managers (the AIFM Law), the SIF Law was divided in two parts, with provisions concerning general provisions applicable to all SIFs (Part I of the SIF Law) and specific provisions for SIFs that qualify as alternative investment funds (AIFs) (Part II of the SIF Law). SIFs are funds that are regulated and subject to the prudential supervision of the Commission de Surveillance du Secteur Financier (CSSF), the Luxembourg supervisory authority. SIFs must be authorised by the CSSF before commencing their activity and are supervised by the CSSF on an ongoing basis. Key features Eligible investors:SIFs are reserved for “well informed investors”, who are:In­sti­tu­tion­al and professional investors (within the meaning Annex II to Directive 2014/65/EU); or Other investors which have stated in writing that they adhere to the status of well-informed investor and, either (i) invest a minimum of 100,000 Euros in the SIF or (ii) have been the subject of an assessment made by a credit institution, an investment firm or a UCITS management company or an authorised alternative investment fund manager (AIFM) certifying their expertise, experience and knowledge to adequately appraise the contemplated investment in the SIF. Eligible assets:There is no restriction on eligible assets for SIFs. Corporate form and structuration of a SIF:SIFs are open or closed entities which take the form of:Fonds commun de placement (FCP) or common contractual fund, which is a fund without legal personality managed by a Luxembourg management company. Société d’In­ves­t­isse­ment à Capital Variable (SICAV) or investment company with variable capital, in the form of a corporate entity (e.g. SA, SCA, Sàrl) or of a partnership with or without legal personality (SCS or SCSp). SIFs can be formed as single funds or as umbrella structures with an unlimited number of ring-fenced sub-funds. Each sub-fund can have its own investment policy, specific features, governing rules or investment manager. Set up:The SIF may be set up as a partnership, a corporate company or an FCP further to the establishment or incorporation process of such entity (e.g. execution of a LPA, management regulations or incorporation of the company in front of a Luxembourg notary). The SIF must establish an offering document which includes the information necessary for investors to be able to make an informed assessment of the investment and related risks. The service agreements of the mandatory SIF’s service providers (as set out below) must be effective as of the date of its establishment / incorporation.A SIF must be approved by the CSSF and is under its permanent supervision through monthly and annual reporting. The approval triggers the entry of the SIF on the official list of SIFs held by the CSSF. Capital requirements:The net assets of a SIF may not be less than EUR 1,250,000, which must be reached within a period of twenty-four months following the authorisation of the SIF. Only 5% of the capital must be paid up on sub­scrip­tion. Di­ver­si­fic­a­tion:A SIF cannot invest more than 30 % of its assets in securities of the same nature issued by the same issuer. Diversification rules do not apply to:Investments in securities issued or guaranteed by an OECD Member State or its regional or local authorities or by EU, regional or global supranational institutions and bodies; andInvestments in target UCIs that are subject to risk-spreading requirements at least comparable to those applicable to SIFs. SIFs may benefit from an initial ramp-up period to comply with the above risk-spreading rules. Marketing:A SIF only benefits from the European marketing passport to the extent that it falls under the scope of the full regime of the alternative investment fund managers directive (AIFMD). Service providers:SIFs must appoint several service providers, the main ones being as follows:a SIF qualifying as an AIF that is not self-managed and above the AIFMD threshold is required to appoint an authorised AIFM;a depositary having its registered office in Luxembourg or a branch in Luxembourg (if its registered office is in another Member State of the European Union) to ensure the safe keeping of its assets;an authorised independent auditor with appropriate professional experience must audit the annual report; anda central administrator which is located in Luxembourg;a portfolio manager in case of delegation by the AIFM. Tax regime:SIFs are not subject to Luxembourg corporate income tax, municipal business tax and net wealth tax but are subject to an annual subscription tax of 0.01 % on their net assets (calculated and payable on a quarterly basis). Some exemptions from subscription tax apply depending on the investment assets (e.g., assets invested in other Luxembourg UCIs subject to this subscription tax, investment in microfinance institutions and pension fund pooling vehicles). SIFs under the form of a corporate entity are subject to 20% real estate tax on rental income and capital gains realized upon disposal of Luxembourg real estate assets and disposal of interests or units in Luxembourg tax transparent entities or mutual funds holding Luxembourg real estate assets. Distributions made by SIFs are not subject to withholding tax. SIFs established under the form of a corporate entity may benefit from some tax treaties concluded by Luxembourg. Management services rendered to SIFs are exempt from VAT. In brief
12/07/2024
CMS Expert Guide to International Arbitration
We live in a connected global environment where the number and complexity of international transactions is ever increasing.  As a consequence, the policies and activities in one area of the world can...
12/07/2024
CMS Expert Guide to real estate finance law
A clear understanding of the security available is fundamental for lenders and borrowers. To assist, CMS has launched an interactive International Guide to Real Estate Finance. This provides a clear and...
11/07/2024
Looking ahead to the EU AI Act
On 12 July 2024, the "Regulation laying down harmonised rules on artificial intelligence" (the so-called AI Act) was published in the Official Journal of the European Union. After a long and complex journey that began in 2021 with the European Commission’s proposal of a draft AI Act, the regulation will now enter into 20 days after its publication, i.e. on August 2, 2024. As the world's first comprehensive law to regulate artificial intelligence, the AI Act aims to establish uniform requirements for the development and use of artificial intelligence in the European Union. With this adoption of the world’s most significant legislation on Artificial Intelligence, the EU is solidifying its position as a pioneer among global legislators. This initiative aims to establish and reinforce the EU’s role as a premier hub for AI while ensuring that AI development remains focused on human-centered and trustworthy principles. The AI Act aims to ensure that the marketing and use of AI systems and their outputs in the EU are consistent with fundamental rights under EU law, such as privacy, democracy, the rule of law and environmental sustainability. Adopting a dual approach, it outright prohibits AI systems deemed to pose unacceptable risks while imposing regulatory obligations on other AI systems and their outputs. The new regulation, which also aims to strike a fair balance between innovation and the protection of individuals, not only makes Europe a world leader in the regulation of this new technology, but also endeavours to create a legal framework that users of AI technologies will be able to comply with in order to make the most of this significant development opportunity. In this article we provide a first overview of the key points contained in the text of the AI Act that companies should be aware of in order to prepare for the implementing regulation.
11/07/2024
Digital identity and trust services
New safety requirements Thanks to the revision of the European eIDAS regulation, a true digital identity will be established at the European level, including the creation of a digital wallet to prove identity, store official documents and introduce new trust services. The growing de­ma­ter­i­al­isa­tion of exchanges, which gives everyone access to a wide range of goods and services, must go hand in hand with protecting users - citizens and businesses alike - against cybersecurity risks. It is only by providing a reliable, secure and harmonised framework for electronic identification and secure transactions that the EU will be able to meet the challenges of the "Digital Decade". With the revision of the eIDAS regulation, Europe is giving itself the means to achieve its ambitions. Why revise the eIDAS regulation? Regulation 910/2014 of 23 July 2014 (1), which essentially came into force on 1 July 2016, establishes a common framework for the mutual recognition of electronic means of identification and electronic signature systems to secure electronic transactions in the Union. After just a few years of application, the results are not up to the mark: a low number of notifications of electronic identification schemes, insufficient European interoperability and poor knowledge of the processes in place on the part of companies and individuals alike. Furthermore, while the needs of the private sector are growing, the eIDAS regulation still prioritises the needs of public service. It does not cover emerging uses in banking, finance, education, health, e-commerce, etc. The European Commission's "Digital Compass" plan proposes a new, more global trajectory. eIDAS 2: regulations tailored to a wide range of use cases The eIDAS 2 regulation should enable the development of new use cases. These include mobility (e.g., ticket verification, mobile driving licenses), employment (e.g., diploma certification), healthcare (e.g., electronic prescriptions) and online payments (e.g., strong authentication). In line with the real uses of individuals and businesses, the proposed regulation proposes an approach based on the following principles: large-scale experimentation and feedback to improve regulations and integrate them as effectively as possible within each member state. The test project, launched in April 2023, should continue until 2025, with an evaluation of project results and recommendations for implementing the regulations. What are the main benefits of eIDAS 2? From digital identity to the European digital identity wallet While eIDAS 1 has enabled the development of digital identity systems, notably with several levels of certification, elDAS 2 will go much further with the introduction of a Europe-wide framework for digital identity security. The European Digital Identity Wallet (EDIW) will enable people to:Prove their identity without resorting to national identity solutions alone. Store their data: the wallet can contain an electronic signature issued by a qualified service provider. Manage all their official documents in electronic format (e.g., driving licenses, medical prescriptions, university diplomas, residence permits). The data stored in the EDIW can be used for a wide range of services, such as car rental, airport check-in, university enrollment, apartment rental or opening a bank account. This digital identity wallet will be usable throughout the European Union, regardless of the country of issue. In addition, the major platforms will have to accept its use, notably to enable Internet users to prove their age. Digital identity service providers will be approved and monitored, and the EDIW will be supervised by a national trust authority, in France ANSSI.A digital wallet that creates value for EU businessesThis European framework should "create economic value by facilitating access to goods and services" and "significantly reduce the operational costs of electronic identification procedures" (2). Indeed, the system should facilitate the enrolment of new customers, while reducing the risks of cybercrime (identity theft, fraudulent payment, data theft). eIDAS 2 will thus support the digital transformation of small and medium-sized European businesses in complete security. Additionally, information from a single direction will reduce the administrative burden on public authorities and support the cross-border mobility of European citizens and businesses. Risks linked to the development of digital identity identified by the CNILWhile the digital identity wallet has various beneficial features, such as optional and free issuance, management left to the bearer, minimal use of data provided and easier access for citizens to their digital identity, the CNIL in France has warned against the risks posed by the proposal to create a "unique and permanent identifier" introduced by the European Commission. While this type of identifier facilitates the interoperability of national systems, it also gives rise to numerous risks of profiling, tracking of citizens and interconnection of files. The final version of the eIDAS 2 (3) regulation is silent on this point, even though many questions remain. What's new for trust services? Greater reliability of website authentication certificatesThe revision of eIDAS will enable authentication certificates to be issued on websites, reinforcing users' confidence in the quality of their content. Internet users will be able to rely more easily on authenticated sites, reducing the risk of fraud. The trust framework established by the revised version of the text includes some minimum safety obligations to be met along with rules for displaying data and other attested attributes. The obligation under French law to include certain legal notices on a website will probably have to be brought into line with these new obligations regarding the availability of qualified authentication certificates. New qualified trust servicesThe current list of trust services has been extended to include two new qualified trust services:the provision of electronic archiving services, defined as "a service ensuring the reception, storage, retrieval and deletion of electronic data and documents to guarantee their durability and legibility, as well as to preserve their integrity, confidentiality and proof of origin throughout the preservation period";the introduction of electronic registers, defined as "a sequence of electronic data records that should guarantee the integrity of these data and the accuracy of their chronological classification". Tougher requirements for advanced electronic signaturesThe revised text reinforces the security requirements and standards to be met by advanced signatures. These signatures must create an unambiguous link with the signatory, enable the signatory to be identified, and guarantee that the signed data has not been compromised. The means used to create these signatures must be under the sole control of the signing users (e.g., smartphone). Qualified remote signatures must meet the same requirements as those for advanced signatures but must be based on a certificate issued by a qualified trust service provider. While the eIDAS 2 regulation reinforces trust services, it should not be forgotten that these can be costly and complicated, and require the intervention of a qualified trusted third party. It is possible to argue that, if the European digital identity wallet proves effective, signatories could, in the future, be identified by this means alone in everyday transactions. The forthcoming entry of the revised regulation, and its first applications of digital identity in everyday life will, be a major step forward. This could lead to a merging of the notions of digital identity and digital authentication. To be continued... Key points: The new version of the eIDAS regulation, which will apply to entities will be published shortly in the OJEU. The amended regulation introduces the European digital identity wallet, which will enable users to prove their identity, store data and manage all their official documents. In terms of trust services, certificates for website authentication will be issued, new trust services will be introduced, and security requirements for advanced electronic signatures will be strengthened. Article published in Option Finance on 08/04/2024Reg­u­la­tion on electronic identification and trust services for electronic transactions within the internal market, or Electronic Identification and Trust Services Regulation, (eIDAS). Extract from the European Parliament's proposal for a regulation adopted  at first reading on February 29, 2024. The idea of creating a unique identifier appeared in the European Parliament's proposal of June 3, 2021, but is no longer expressly mentioned in the version finally voted on February 29, 2024. However, its use is not ruled out.
11/07/2024
CMS Expert Guide to cannabis law and legislation
Why this guide? In recent years cannabis trade and related activity has developed into a growth business area. In the life sciences and healthcare fields, there have been increases in the numbers of patients...