Page 11

AD ALTA

JOURNAL OF INTERDISCIPLINARY RESEARCH

identity card or other token of a person who wants to use an
electronic service in another Member State) corresponding to an
assurance level equal to or higher than the assurance level
required by the relevant public sector body to access that service
online in the first Member State, provided that the assurance
level of that electronic identification means corresponds to the
assurance level substantial or high.

In other words, public sector body from the Member State A
requires substantial or high assurance level for access to its
online service. If the citizen of Member State B has the
electronic identification means at the same or higher assurance
level as required by the public sector body of the Member State
A, the condition is fulfilled.

3.3 The third condition

The third condition for the mutual recognition of the electronic
identification means is that the relevant public sector body uses
the assurance level substantial or high in relation to accessing
that service online.

An electronic identification means which is issued under the
electronic identification scheme included in the list published by
the European Commission pursuant to Article 9 of the eIDAS
Regulation and which corresponds to the assurance level low
may be recognized by public sector bodies for the purposes of
cross-border authentication for the service provided online by
those bodies. In other words, it is up to Member States if they
recognize the electronic identification means which corresponds
to the assurance level low.

It is necessary to point out that access to online services and their
final provision to the applicant is connected with the right to use
such services under the conditions laid down in national law. In
other words, even if a person can be electronically authenticated
to access the online service of another Member State, he does
not automatically have the right to use a particular online
service, since such authorization may be subject to the condition
of citizenship or permanent residence in specific country, and so
on.

4 Application issues

The fact that from 29 September 2018, the Slovak Republic will
be obliged to recognize electronic identification means (notified
according to the eIDAS Regulation) for the purposes of access of
citizens of the European Union to Slovak public administration
electronic services, gives a rise to many technical and mainly
legal issues. Questions of a legal nature reveal if the legal system
of the Slovak Republic reflects the changes that have occurred in
the field of electronic identification and authentication and
whether it creates a sufficient legal environment for potential
foreign users of Slovak public administration electronic services.

4.1 Online service

The most important issues include the absence of a definition
and absence of a defined range of online services. The eIDAS
does not define the term online service but it mentions it in
several places. It is clear from the provisions of the eIDAS
Regulation that any service, whether public or private that is
provided by using information and communication technologies
(in particular the Internet, computing, etc.) can be considered as
online service. Based on the above, a distinction can be made
between public and private online services.

Article 6 (1) (b) of the eIDAS Regulation.

Ibid, Article 6 (1) (c).

E.g. public administration electronic service related to welfare services or in the

case of the introduction of electronic elections in the National Council of the Slovak
Republic or in the bodies of territorial self-government.

Preamble (2) of the eIDAS Regulation “this Regulation seeks to enhance trust in

electronic transactions in the internal market by providing a common foundation for
secure electronic interaction between citizens, businesses and public authorities,
thereby increasing the effectiveness of public and private online services, electronic
business and electronic commerce in the Union.”

From the provision of Article 6 (1) of the eIDAS Regulation
indirectly implies that a public online service can be understood
as a service provided online by public sector bodies.

The

eIDAS Regulation does not define online service provider in
detail but in general, it can be said that it is a natural person or a
legal entity as well as an organizational component of the state.
Online services providers may be considered (i) public sector
entities or (ii) private sector entities.

The crucial fact is that

these entities require remote identification and authentication of
the person by accessing their online service through an electronic
identification means that is part of the electronic identification
scheme notified under the eIDAS Regulation.

Furthermore, the term public service is also used in the eIDAS
Regulation. Pursuant to the preamble (12) of the eIDAS
Regulation “one of the objectives of this Regulation is to remove
existing barriers to the cross-border use of electronic
identification means used in the Member States to authenticate,
for at least public services.” The eIDAS Regulation does not
define the term public service in more detail.

From the perspective of Slovak legal order, it is necessary to
point out that the definition of public online service is absent.
Therefore, it is necessary to find the most suitable equivalent to
the term public online service in Slovak legal order. I am of the
opinion that under the conditions of the Slovak legal order, the
term public administration electronic service may be considered
the most appropriate equivalent of the term online service
provided by public sector body. Even though the term public
administration electronic service is broadly used, the real
meaning is unclear. The term in question is mostly connected
with the issue of the eGovernment which is regulated by Act No.
305/2013 Coll. on the Exercise of Public Authorities
Competences in Electronic Form and on changes and
amendments to certain acts (hereinafter referred to as the “e-
Government Act”). The main aim of the e-Government Act is to
embody official electronic communication as a primary form of
communication between persons (individuals and legal entities)
and public authorities as well as between public authorities
themselves.

Provisions of e-Government Act apply only to cases when the
decision issued is relating to rights, interests protected by law
and obligations of natural persons or legal entities. Furthermore,
the provisions of e-Government Act are limited to proceedings
which result in issuing a decision as an individual legal act.

The e-Government act defines official electronic communication
and other institutes necessary for exercise of public authority in
electronic form, however the definition of the term public
administration electronic services is absent.

Pursuant to Article 3 (7) of the eIDAS Regulation public sector body means:

(i) a state, regional or local authority,

(ii) a body governed by public law or

(iii) an association formed by one or several such authorities or one or several
such bodies governed by public law, or

(iv) a private entity mandated by at least one of those authorities, bodies or
associations to provide public services, when acting under such a mandate.

In the case of the term a body governed by public law the eIDAS Regulation refers to
the term public institution stated in Article 2 (1) (4) of the Directive 2014/24/EU of the
European Parliament and of the Council of 26 February 2014 on public procurement
and repealing Directive 2004/18/EC.

Identification and authentication through the electronic identification means (e.g. an

electronic identity card) is not limited only to online services provided by public sector
bodies. There is an assumption that in the future private sector entities will also be able
to accept the electronic identification means like electronic identity card or other
means issued by the state to access their online services.

Official electronic communication is defined as electronic communication where the

official electronic message which consists of an electronic application and official
electronic documents, including attachments, is transmitted.

The e-Government Act applies to public authorities. The term public authority (as

institution) is broader than the term public administration authorities. More on
terminology and structure of public administration authorities in: ANDRAŠKO, J.,
ŠURKALA, J.: The concept of local self-government in the Slovak Republic. In
Administrative law and process, 2015, Vol. 12, Issue 2, p. 321-332. Available at:
http://applaw.knu.ua/2015-2.pdf.

More on the issue of electronic services in: ANDRAŠKO, J.: Theoretical aspects of

public administration electronic services. In Bratislava law review, 2017, Vol. 1, Issue
2, p. 119-128. See also: SOPÚCHOVÁ, S.: Predpoklady fungovania e-governmentu v
Slovenskej republike. In QUAERE 2015. Hradec Králové: Magnanimitas, 2015, p.
659-668.

- 11 -