Electronic registered mail service and evidence

Ministerial Order 2022-39 of 21 January 2022 sets out the terms and conditions for the application of Article 28-1 of Law 1.383 for a Digital Principality, relating to the trusted electronic registered mail service[1].

Presentation

Art. 28 -1 of Law no. 1.383 lays down the principle of non-discrimination between a paper-based registered letter and an electronic registered letter. Thus, "The admission and admissibility of data sent and received by means of an electronic registered mail service as evidence in court may not be refused on the sole ground that this service is in electronic form or that it does not meet the requirements of the qualified electronic registered mail service."

However, only the qualified electronic registered mail service governed by Art. 28-2 of Law No. 1.383 enjoys a presumption of conformity (Art. 5 Ministerial Order No. 2022-39) and is equivalent to a paper LRAR.

SUMMARY

Ministerial Order No. 2022-39 of 21 January 2022 sets out (on the French model[2]):

• the identification requirements of the sender (same modalities as those set by the eIDAS Regulation (EU)[3]) and of the recipient (substantial level of guarantee provided for by art. 3 of Law no. 1. 483 of 17 December 2019 on digital identity), proof of the sender's deposit of the data and of the time of such deposit, proof of the recipient's or his authorised representative's receipt of the transmitted data and of the time of such receipt, integrity of the transmitted data, delivery, where applicable, of the electronic registered letter printed on paper;
• the information that the provider of an electronic registered mail must bring to the attention of the addressee.

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Conditions of validity of the electronic registered mail:

The service provider in charge of the delivery is responsible for the correct identity of the recipient and the sender (art. 1 Ministerial Order No. 2022-39).

The dates of dispatch and receipt of the consignment must be guaranteed and verifiable (Art. 2 Ministerial Order No. 2022-39).

If the addressee is not a professional, his prior agreement is required (in case of refusal, the sender must send the registered mail in paper format) (art. 28-1, paragraph 2 Law n° 1.383)[4].

The electronic registered mail service provider issues the sender with proof of the electronic filing of the mail. This proof must be kept for at least one year (art. 2 Ministerial Order No. 2022-39).

Before sending, the service provider must inform the recipient electronically that an electronic registered letter will be sent to him. (art. 3 Ministerial Order No. 2022-39).

At the time of this information, the recipient is not informed of the identity of the sender. He is informed when he accepts to receive the registered letter.

The service provider shall inform the addressee that he can accept or refuse the registered letter, within 15 days from the day after this information is sent If the sender requests an acknowledgement of receipt, the service provider shall inform him of the acceptance or refusal of the addressee.

The service provider shall provide proof of refusal, non-request or acceptance no later than the day following the 15-day period. This proof shall specify the date and time of the refusal or acceptance.The service provider shall keep proof of the recipient's refusal or non-acceptance for at least one year.

The sender shall have access to this information for one year.

The service provider is liable in case of delay in receipt or loss of data (art. 4 Ministerial Order No. 2022-39).

NOTES

[1] Art. 2 Act No. 1. 383 : "electronic registered mail service" means a trusted service that enables data to be transmitted between third parties by electronic means, provides evidence of the processing of the transmitted data, including proof of sending and receipt, and protects the transmitted data against the risk of loss, theft, alteration or any unauthorised modification; "a trusted service that enables the transmission of data between third parties by electronic means, provides evidence of the processing of transmitted data, including proof of sending and receipt, and protects the transmitted data against loss, theft, alteration or unauthorised modification;"

[2] Articles R.53-1 to R.53-4 of the second regulatory part-decrees in the Council of State-of the French Post and Electronic Communications Code, created by Decree No. 2018-347 of 9 May 2018 relating to the electronic registered letter setting out the terms of application of Article 93 of the Law for a Digital Republic relating to the electronic registered letter having created Art. L.100 of the said Code.

[3] Modalities provided for in points a, b, c or d of paragraph 1 of Article 24 of 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 (eIDAS Regulation).

[4] The service provider may propose that the content of the item be printed on paper and then forwarded to the addressee under the conditions set out in Book I of the French Post and Electronic Communications Code, which was made applicable to Monaco by Article 2 of Sovereign Order No. 3.042 of 19 August 1963 implementing in Monaco the Convention on postal, telegraphic and telephone relations signed in Paris on 18 May 1963 (Art. 28-1, paragraph 3 of Act No. 1.383).