Reliable copy: Sovereign Order n° 9.059 of 21 January 2022 implementing Article 1181 of the Civil Code

A digital copy resulting from a reproduction of the content of the paper document, the integrity of which is guaranteed over time by a process that complies with the conditions set by Sovereign Order no. 9.059 of 21 January 2022 implementing Article 1181 of the Civil Code (JDM n° 8575 of 28 January 2021), benefits from a presumption of reliability until the contrary is proven. Ministerial orders determine, as necessary, the conditions of application of the said Ordinance.

Where these conditions are met and in the absence of legislative or regulatory provisions to the contrary, the destruction of the paper original is then authorised subject to establishing and following a specific written procedure for this purpose which requires prior verification that the digital copy corresponds to the paper original.

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Law no. 1.482 of 17 December 2019 overhauled the regime of copies provided for by the Civil Code, introducing the notion of a "reliable copy" (replacing that of a faithful and durable copy) which has the same probative value as the original (Article 1181, paragraph 1 of the Civil Code): "A reliable copy has the same probative value as the original. Reliability is left to the discretion of the judge".

The Civil Code sets out the conditions that a copy must meet in order to benefit from a presumption of reliability (Article 1181, paragraph 2 of the Civil Code): "(...) Any copy resulting from a reproduction of the content of the document, the integrity of which is guaranteed over time by a process that complies with conditions set by sovereign order, is presumed to be reliable until the contrary is proven. "

Thus, a digital copy is presumed reliable and has the same legal value as the paper original when it results from the use of digitisation (reproduction of the content of the document) and electronic archiving (preservation over time of the digital copy in conditions that prevent any alteration of its form and content) that guarantee the integrity of the content of the paper original.

Article 1 of Sovereign Order n° 9.059 provides that "A copy is presumed to be reliable, within the meaning of the second paragraph of Article 1181 of the Civil Code, if it is obtained :

- either from an electronic archiving process under the conditions set out in the aforementioned Ministerial Order n° 2021-247 of 25 March 2021;

- or, in the case of digitisation under the conditions set out in Ministerial Order No 2021-247 of 25 March 2021, referred to above, a process that meets the conditions set out in Articles 2 to 6."

The reliability of the digital copy thus depends on the reliability of the complementary digitisation and electronic archiving processes under the conditions set out in Ministerial Order 2021-247 of 25 March 2021 (published in the JDM No. 8532 of 2 April 2021), which implements Articles 2 (qualified electronic archiving service) and 3 (qualified digitisation service) of Sovereign Order 8. 099 of 16 June 2020 on trust services, implementing Law n° 1.383 of 2 August 2011 for a digital Principality, as amended.