–

‘Ekofrukt’ EOOD, by D.Y. Kirilova,

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the Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ – Veliko Tarnovo, by B. Nikolov,

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the Bulgarian Government, by M. Georgieva and L. Zaharieva, acting as Agents,

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the Belgian Government, by M. Jacobs and M. Van Regemorter, acting as Agents,

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the Czech Government, by J. Očková, M. Smolek and J. Vláčil, acting as Agents,

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the European Commission, by G. Braun, D. Drambozova and P.-J. Loewenthal, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 25(1) and Article 26 of and Annex I to Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ 2014 L 257, p. 73).

2

The request has been made in proceedings between ‘Ekofrukt’ EOOD, whose registered offices are in Bulgaria, and the Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ – Veliko Tarnovo (Director of the ‘Appeals and Tax and Social Insurance Practice’ Directorate of Veliko Tarnovo, Bulgaria) (‘the Director’) concerning an amended tax assessment notice in relation to value-added tax (VAT) owed by Ekofrukt for the tax periods of August to October 2014.

3

Recitals 21, 23, 33 and 49 of Regulation No 910/2014 read as follows:

…

…

…

4

Article 2 of that regulation, entitled ‘Scope’, provides, in paragraph 3 thereof:

‘This Regulation does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form.’

5

Under Article 3 of that regulation, entitled ‘Definitions’:

‘For the purposes of this Regulation, the following definitions apply:

…

…

…

…

…

…’

6

Article 17 of that regulation, entitled ‘Supervisory body’, provides, in essence, that Member States are to designate a supervisory body responsible, inter alia, for supervising qualified trust service providers to ensure that those providers and the qualified trust services that they provide meet the requirements laid down in Regulation No 910/2014, for granting qualified status to trust service providers and the services they provide and for withdrawing such status.

7

Article 25 of that regulation, entitled ‘Legal effects of electronic signatures’, reads as follows:

‘1.   An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

2.   A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.

…’

8

Article 26 of that regulation, entitled ‘Requirements for advanced electronic signatures’, states:

‘An advanced electronic signature shall meet the following requirements:

9

Under the heading ‘Requirements for qualified certificates for electronic signatures’, Annex I to that regulation lists the various pieces of information that qualified certificates for electronic signatures must contain. Thus, according to points (b) to (d) of that annex, those certificates must contain a set of data unambiguously representing the qualified trust service provider issuing the qualified certificates, at least the name of the signatory or a pseudonym which, if used, must be clearly indicated, and electronic signature validation data that must correspond to the electronic signature creation data.

10

Annex II to Regulation No 910/2014, entitled ‘Requirements for qualified electronic signature creation devices’, provides, inter alia, in point 1 thereof, that qualified electronic signature creation devices must ensure at least, by appropriate technical and procedural means, in particular, that the confidentiality of the electronic signature creation data is reasonably assured, that such data can practically occur only once, that the electronic signature is reliably protected against forgery and that such data are reliably protected by the legitimate signatory against use by others. Furthermore, point 3 of that annex provides that generating or managing electronic signature creation data on behalf of the signatory may only be done by a qualified trust service provider.

11

In accordance with Article 3 of the Zakon za elektronnia dokument i elektronnite udostoveritelni uslugi (Law on electronic documents and electronic trust services, DV No 34, of 6 April 2001), in the version applicable to the dispute in the main proceedings (‘the Law on electronic documents’), an ‘electronic document’ is an electronic document within the meaning of Article 3(35) of Regulation No 910/2014.

12

According to Article 13 of the Law on electronic documents:

‘(1)   An electronic signature is an electronic signature within the meaning of Article 3(10) of [Regulation No 910/2014].

(2)   An advanced electronic signature is an electronic signature within the meaning of Article 3(11) of [Regulation No 910/2014].

(3)   A qualified electronic signature is an electronic signature within the meaning of Article 3(12) of [Regulation No 910/2014].

(4)   The legal effect of the electronic signature and the advanced electronic signature is the same as that of the handwritten signature where the parties have so agreed.’

13

The applicant in the main proceedings, Ekofrukt, is a trading company engaged in the wholesale and retail sale of fruit and vegetables at several outlets. The company was subject to a tax audit covering the VAT periods of August to November 2014.

14

As a result of that audit, the tax authorities issued an amended tax assessment notice on 4 May 2017. Following the appeal brought by the applicant in the main proceedings, the Director annulled that tax assessment notice by decision of 4 August 2017 and ordered that a new tax audit be carried out.

15

In the context of that new audit, the tax authorities issued, on 8 February 2018, an amended tax assessment notice for the recovery of a total amount of 30 915.50 leva (BGN) (approximately EUR 15800) in respect of VAT relating to the tax periods from August to October 2014, plus default interest. That decision was confirmed by the decision of the Director of 18 September 2018.

16

All of the documents issued by the tax authorities in the context of that tax audit were electronic documents signed with electronic signatures.

17

The applicant in the main proceedings brought an action before the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo, Bulgaria), the referring court, against the decision of the Director of 18 September 2018.

18

In that action, the applicant challenges the validity of the electronic documents issued, arguing, first, that there was no indication that those documents were electronic documents bearing electronic signatures, and, secondly, that there was no ‘qualified electronic signature’.

19

Extracts from the register of electronic signatures showing that the trust service provider had classified the signatures of the tax authorities as ‘professional electronic signatures’ were produced before the referring court. According to the expert reports produced before the referring court, the electronic signatures on the electronic documents challenged by the applicant in the main proceedings are not ‘qualified electronic signatures’ within the meaning of Article 3(12) of Regulation No 910/2014.

20

However, the referring court considers that that concept should be clarified. Moreover, it notes that it requires further guidance on the intensity of the assessment of those signatures’ compliance with the information that qualified certificates for electronic signatures must legally contain, in order for it to be able to determine whether or not such a signature exists. In that regard, it seeks to establish in particular what the value of a ‘professional electronic signature’ – such as that used by the trust service provider – is, although that concept does not exist in the Bulgarian legal system.

21

Furthermore, according to that court, it is, in principle, accepted that Article 25 of Regulation No 910/2014 establishes a prohibition on the challenging of electronic documents, and therefore an electronic document is considered valid even if it is established that the signature on it is a non-qualified electronic signature. That approach creates disparity between, on the one hand, a paper document bearing a handwritten signature, and, on the other hand, an electronic document bearing an electronic signature. In the event of a complaint against a paper document leading to the finding that the signature on that document is not that of the author specified, the document in question would be declared invalid due to lack of signature. Conversely, in the case of an electronic document, even if it were found that the electronic signature does not constitute a ‘qualified electronic signature’, it would not be possible to consider the document unsigned and, therefore, the document would remain valid.

22

In those circumstances, the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

23

The European Commission considers, in essence, that the second and fourth questions are inadmissible on the ground that they are not relevant to the resolution of the dispute in the main proceedings since, according to the order for reference, the electronic signatures at issue in the main proceedings do not constitute ‘qualified electronic signatures’ within the meaning of Article 3(12) of Regulation No 910/2014.

24

The Director also contends that the questions are hypothetical, in so far as the considerations of the referring court are based on the erroneous factual premiss that the administrative decision which was challenged before it was signed with a signature other than a ‘qualified electronic signature’.

25

In that regard, it should be recalled that, in accordance with settled case‑law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (judgment of 26 May 2011, Stichting Natuur en Milieu and Others, C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 47 and the case-law cited).

26

Since the national court alone has jurisdiction to find and assess the facts in the case before it, the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it and thus proceed on the basis of the situation which that court or tribunal considers to be established, and cannot be bound by suppositions raised by one of the parties to the main proceedings (judgment of 2 April 2020, Coty Germany, C‑567/18, EU:C:2020:267, paragraph 22 and the case-law cited).

27

The Court is not bound to give a ruling, in particular, where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (judgment of 26 May 2011, Stichting Natuur en Milieu and Others, C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 48 and the case-law cited).

28

However, that is not the case here.

29

Although the statement of reasons for the request for a preliminary ruling is admittedly succinct, the fact remains that the referring court has not drawn any definitive conclusions as to whether or not the electronic signatures at issue in the main proceedings should be regarded as ‘qualified electronic signatures’. The referring court expressly states that it ‘requires additional guidance on the intensity of the assessment of specific signatures’ compliance with the content prescribed by law, in order to be able to determine whether or not a qualified electronic signature exists’.

30

Contrary to what the Commission and the Director claim, it is therefore not obvious that the interpretation of EU law sought by the national court bears no relation to the actual facts of the main action or its purpose, or that the problem raised is hypothetical.

31

Consequently, the request for a preliminary ruling must be considered admissible.

32

By its first question, the referring court seeks to ascertain, in essence, whether Article 25(1) of Regulation No 910/2014 should be interpreted as meaning that it is not permissible for an administrative act issued in the form of an electronic document to be declared invalid if it has been signed with an electronic signature which does not meet the requirements of that regulation to be regarded as a ‘qualified electronic signature’, within the meaning of Article 3(12) of that regulation.

33

In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, by considering the latter’s usual meaning in everyday language, but also the context in which the provision occurs and the objectives pursued by the rules of which it is part (judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 29 and the case-law cited).

34

In the first place, according to the very wording of Article 25(1) of Regulation No 910/2014, an electronic signature must not be denied legal effect and admissibility as evidence in legal proceedings solely on the ground that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.

35

Accordingly, that provision does not prohibit national courts from declaring electronic signatures invalid, but establishes a general principle prohibiting those courts from denying electronic signatures legal effect and evidential value in legal proceedings solely on the grounds that those signatures are in electronic form or that they do not meet the requirements laid down by Regulation No 910/2014 for an electronic signature to be considered a ‘qualified electronic signature’.

36

In the second place, that interpretation is supported by Article 2(3) of Regulation No 910/2014, read in the light of recitals 21 and 49 thereof, according to which it is for national law to define the legal effect of electronic signatures. Under that provision, Member States are free to decide whether communications and notices issued in particular by the tax administration to taxable persons may be in electronic form and, if so, to determine what type of electronic signature is required in the circumstances. Regulation No 910/2014 does not specify which particular type of electronic signature must be used when drawing up a given legal act, including an administrative decision adopted in the form of an electronic document. It is therefore for the Member States to determine whether the electronic signature to be used on such an administrative decision must be a qualified electronic signature and, where appropriate, what the consequences of non-compliance with that requirement are.

37

The only exception in that regard is the requirement, laid down in Article 25(2) of Regulation No 910/2014, that a qualified electronic signature must have the equivalent legal effect of a handwritten signature. The objective of that provision, according to which a presumption of ‘assimilation’ to handwritten signatures applies only to qualified electronic signatures, would be compromised if an electronic signature which does not meet the requirements of that regulation to be regarded as a ‘qualified electronic signature’ nevertheless had comparable, or even greater, effects, in that a broad interpretation of Article 25(1) of Regulation No 910/2014 would mean that such a signature could not be challenged or, at least, that such a signature would be more difficult to challenge than a handwritten signature. As the referring court rightly observed, such an approach creates disparity between a paper document bearing a handwritten signature and an electronic document bearing an electronic signature.

38

In the present case, it is clear from the national legal framework provided by the referring court that, under Article 13(4) of the Law on electronic documents, the legal effect of the electronic signature and the advanced electronic signature is equivalent to that of the handwritten signature only where the parties have so agreed.

39

In the third place, it is important to note that Regulation No 910/2014 is intended to ensure, as is apparent from Article 2(3) thereof, read in the light of recital 49, that an electronic signature is not denied legal effect solely on the ground that it is in electronic form, without impeding the choice of Member States as regards the formal requirements. However, it cannot be held that, in the context of the graduated system of the various electronic signatures provided for in Regulation No 910/2014, an electronic signature which does not meet the requirements of that regulation to be regarded as a ‘qualified electronic signature’ must be recognised as having a greater legal effect than that conferred on a handwritten signature.

40

Accordingly, Article 25(1) of Regulation No 910/2014 does not prohibit national courts from declaring an electronic signature invalid where it does not meet the requirements of that regulation to be regarded as a ‘qualified electronic signature’, within the meaning of Article 3(12) of that regulation, provided that the signature in question is not declared invalid solely on the ground that it is in electronic form.

41

In the light of the foregoing considerations, the answer to the first question is that Article 25(1) of Regulation No 910/2014 must be interpreted as meaning that it is permissible for an administrative act issued in the form of an electronic document to be declared invalid where it is signed with an electronic signature which does not meet the requirements of that regulation for it to be regarded as a ‘qualified electronic signature’, within the meaning of Article 3(12) of that regulation, provided that the act is not declared invalid solely on the ground that the signature is in electronic form.

42

By its third question, which must be dealt with before the second question, the referring court asks, in essence, whether Article 3(12) of Regulation No 910/2014 should be interpreted as meaning that, in the absence of a ‘qualified certificate for electronic signature’ within the meaning of Article 3(15) of that regulation, the fact that the trust service provider has classified an electronic signature as a ‘professional electronic signature’ rather than a ‘qualified electronic signature’ is sufficient to establish that the signature at issue is not qualified.

43

It should be noted that Article 3(12) of Regulation No 910/2014 sets out three cumulative requirements which must be met for an electronic signature to be regarded as a ‘qualified electronic signature’. First, the signature must be an ‘advanced electronic signature’ which must, in accordance with Article 3(11) of that regulation, meet the requirements set out in Article 26 thereof. Secondly, the signature must be created by a ‘qualified electronic signature creation device’ which must, in accordance with Article 3(23) of that regulation, meet the requirements set out in Annex II to that regulation. Thirdly, the signature must be based on a ‘qualified certificate for electronic signature’ within the meaning of Article 3(15) of Regulation No 910/2014. According to that provision, the certificate in question must have been issued by a ‘qualified trust service provider’ and must meet the requirements set out in Annex I to that regulation.

44

Thus, notwithstanding the fact that the qualified trust service provider in the main proceedings classified the electronic signature at issue as a ‘professional electronic signature’, a concept not provided for in Regulation No 910/2014, the existence of a ‘qualified certificate for electronic signature’ within the meaning of Article 3(15) of that regulation, issued by a qualified trust service provider and complying with the requirements set out in Annex II to that regulation, constitutes one of the three cumulative requirements set out in Article 3(12) of that regulation for an electronic signature to be regarded as a ‘qualified electronic signature’.

45

Therefore, the fact that an electronic signature does not meet that requirement is sufficient for it not to be regarded as a ‘qualified electronic signature’ within the meaning of Regulation No 910/2014.

46

Moreover, as the Bulgarian Government rightly stated in its written observations, the fact that, in the main proceedings, the trust service provider concerned used the classification ‘professional electronic signature’ does not preclude the recognition of the same signature as a ‘qualified electronic signature’. Thus, the fact that an electronic signature is classified as a ‘professional electronic signature’ is irrelevant in the context of the assessment to determine whether it is covered by the concept of ‘qualified electronic signature’ within the meaning of Regulation No 910/2014.

47

Accordingly, the answer to the third question is that Article 3(12) of Regulation No 910/2014 must be interpreted as meaning that the absence of a ‘qualified certificate for electronic signature’, within the meaning of Article 3(15) of that regulation, is sufficient to establish that an electronic signature does not constitute a ‘qualified electronic signature’ within the meaning of Article 3(12), since it is irrelevant in that regard whether or not the signature in question is classified as a ‘professional electronic signature’.

48

By its second question, the referring court seeks to ascertain, in essence, whether Regulation No 910/2014 should be interpreted as meaning that the entry of an electronic signature in the certificate issued by the trust service provider is sufficient for that signature to meet the requirements laid down by that regulation for it to be regarded as a ‘qualified electronic signature’, within the meaning of Article 3(12) of that regulation, or whether the national court must establish whether that signature meets the requirements of Article 26 of and Annex I to that regulation.

49

First, as is apparent from paragraph 43 of the present judgment, Article 3(12) of Regulation No 910/2014 sets out three cumulative requirements which must be met for an electronic signature to be regarded as a ‘qualified electronic signature’, including the requirement that there must be a ‘qualified certificate for electronic signature’. The other conditions include, inter alia, the fact that the requirements under Article 26 of that regulation were met at the time of signing and that the electronic signature was created by a qualified electronic signature creation device.

50

Therefore, for the purposes of determining whether an electronic signature meets the requirements laid down by Regulation No 910/2014 for it to be regarded as a ‘qualified electronic signature’, the mere fact that the signature is based on a qualified certificate issued by a qualified trust service provider is not sufficient.

51

Secondly, it should be pointed out that, although, as stated by the Belgian Government and the Commission in their written observations, all the requirements of Regulation No 910/2014 which are applicable to qualified service providers as well as to qualified electronic signatures and qualified certificates have already been verified by an accredited conformity assessment body, defined in Article 3(18) of that regulation, as part of the audit process, and by the supervisory body designated in accordance with Article 17 of that regulation, the fact remains that, where a party to national proceedings disputes whether an electronic signature constitutes a ‘qualified electronic signature’ within the meaning of Article 3(12) of Regulation No 910/2014, the national court must ascertain whether the three conditions laid down in that provision are met.

52

Thirdly, those considerations cannot be called into question by the observations of the Bulgarian Government and the Director that recital 23 of Regulation No 910/2014 creates an obligation to recognise a trust service which meets the requirements of that regulation, and that the supervisory and certification regime introduced by Regulation No 910/2014 would be rendered meaningless if the review by the national court were not limited to ascertaining whether the electronic signature in question is based on a qualified certificate for electronic signature issued by a qualified trust service provider on the national trusted list.

53

However, it cannot be inferred from that recital that its intention is for trust services made compulsory by Regulation No 910/2014 to escape any judicial review on the ground that those services have been subject to administrative review, whether by an accredited conformity assessment body, as defined in Article 3(18) of that regulation, as part of the audit process, or by the supervisory body designated in accordance with Article 17 of that regulation.

54

Indeed, that recital merely states that such a trust service may be rejected only if the addressee of the obligation to recognise that service is unable to read or verify it due to technical reasons lying outside the immediate control of the addressee.

55

Having regard to the foregoing considerations, the answer to the second question is that Regulation No 910/2014 must be interpreted as meaning that the entry of an electronic signature in the certificate issued by the trust service provider is not sufficient for that signature to meet the requirements laid down by that regulation for it to be regarded as a ‘qualified electronic signature’ within the meaning of Article 3(12) of that regulation. When such a classification is challenged in the context of legal proceedings, the national court is required to ascertain whether the cumulative conditions laid down in Article 3(12) are all met, which means that it must, in particular, ascertain whether the conditions referred to in Article 26 of and Annex I to that regulation are met.

56

By its fourth question, the referring court seeks to ascertain, in essence, whether Article 3(12) of and Annex I to Regulation No 910/2014 should be interpreted as meaning that, when verifying the compliance of a qualified electronic signature with the requirements of that annex, the fact that the names of the signatory, who normally uses Cyrillic script for those names, have been transliterated using Latin script means that that signature cannot be regarded as a ‘qualified electronic signature’ within the meaning of Article 3(12).

57

First of all, it should be noted in that regard that, first, in order to constitute a ‘qualified electronic signature’, within the meaning of Article 3(12) of Regulation No 910/2014, an electronic signature must be based on a ‘qualified certificate for electronic signature’ which, under Article 3(15) of that regulation, must meet the requirements set out in Annex I thereto. According to point (c) of that annex, qualified certificates for electronic signatures must contain, inter alia, at least the name of the signatory or a pseudonym which, if used, must be clearly indicated. As regards the provisions on the use of such pseudonyms, it is stated in recital 33 of that regulation that they should not prevent Member States from requiring identification of persons pursuant to national or EU law.

58

Secondly, one of the three cumulative requirements laid down in Article 3(12) of Regulation No 910/2014 which must be met in order for an electronic signature to be recognised as a ‘qualified electronic signature’ is for that electronic signature to constitute an ‘advanced electronic signature’ within the meaning of Article 3(11). However, Article 26(a) and (b) of Regulation No 910/2014 provides that, in order to constitute an ‘advanced electronic signature’, an electronic signature must be uniquely linked to the signatory and must be capable of identifying that signatory.

59

In the light of the foregoing considerations, the answer to the fourth question is that Article 3(12) of, and Annex I to, Regulation No 910/2014 must be interpreted as meaning that, when verifying the compliance of the qualified electronic signature with the requirements of that annex, the fact that the names of the signatory, who normally uses Cyrillic script for those names, have been transliterated using Latin script does not preclude his or her electronic signature from being regarded as a ‘qualified electronic signature’, within the meaning of Article 3(12), provided that the electronic signature in question is uniquely linked to the signatory and that it is capable of identifying him or her, which is a matter for the national court to establish.

60

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules: