Formation of a certificate for a non-resident representative
The Ministry of Digital Transformation of Ukraine, in accordance with clauses 1, 3, sub-clauses 20, 231, clause 4 of the Regulation on the Ministry of Digital Transformation of Ukraine, approved by Resolution No. 856 of the Cabinet of Ministers of Ukraine dated September 18, 2019, informs and provides clarification on the implementation of state policy in the field of electronic trust services, namely, regarding the practical implementation of issues of identification of a natural person who is a representative of a foreign legal entity, during the formation of a qualified electronic signature certificate.
We draw your attention to the fact that foreigners and stateless persons residing in Ukraine on legal grounds have the same rights and freedoms, and bear the same responsibilities as citizens of Ukraine - with exceptions established by the Constitution, laws or international treaties of Ukraine (part one of Article 26 of the Constitution of Ukraine).
In addition, Article 129 of the Economic Code of Ukraine establishes that foreigners and stateless persons when conducting economic activities in Ukraine have the same rights and obligations as citizens of Ukraine, unless otherwise provided by this Code or other laws. Foreign legal entities in carrying out economic activities in Ukraine have the same status as legal entities of Ukraine, with special features provided by this Code, other laws, as well as international treaties, consent to the binding of which has been granted by the Verkhovna Rada of Ukraine.
In accordance with the tenth and twelfth paragraphs of Article 2 of the Law of Ukraine "On Foreign Economic Activity", one of the principles of foreign economic activity is defined as the principle of legal equality and non-discrimination, which, in particular, consists in the prohibition of any state actions other than those provided for by this Law, the result of which are restrictions of rights and discrimination of subjects of foreign economic activity, as well as foreign subjects of economic activity based on forms of ownership, location and other characteristics.
It should be noted that the identification of a natural person who applied for the service of creating a qualified public key certificate is carried out on the condition of their personal presence with the passport of a citizen of Ukraine or with other documents that make it impossible to raise any doubts about the person, in accordance with the legislation on the Unified State demographic register and about identity documents, confirming Ukrainian citizenship or special status of a person. Identification of foreigners is carried out in accordance with the legislation. A qualified provider of electronic trust services during the formation and issuance of a qualified public key certificate carries out identification of the person of the authorized representative of a legal entity in accordance with the requirements of this Law, and also checks the scope of his powers according to the document or according to data from the Unified State Register of legal entities, natural persons - entrepreneurs and public formations, which determine the powers of the representative. If a collegial body acts on behalf of a legal entity, a document is submitted to the qualified provider of electronic trust services, which defines the authority of the relevant body and the distribution of responsibilities among its members (parts two, four, six of Article 22 of the Law of Ukraine "On Electronic Identification and Electronic Trust Services").
Since the legislation does not define special requirements for the identification of foreigners who applied for the service of generating a qualified public key certificate, such identification is carried out in accordance with the second part of Article 22 of the Law of Ukraine "On Electronic Identification and Electronic Trust Services", that is, according to documents that make it impossible for any doubts to arise in relation to the person, in accordance with the legislation on the Unified State Demographic Register and on documents certifying the person, confirming the citizenship of Ukraine or the special status of the person.
In addition, the scope of powers of the authorized representative of a foreign legal entity is checked against the documents defining the powers of the representative.
According to the third part of Article 237 of the Civil Code of Ukraine, representation arises on the basis of a contract, law, act of a body of a legal entity and on other grounds established by acts of civil legislation.
We draw your attention to the fact that the powers of a commercial representative can be confirmed by a written contract between then and the person they represent, or by a power of attorney. Representation, which is based on a contract, can be carried out by power of attorney. Representation by power of attorney may be based on an act of a body of a legal entity. A power of attorney on behalf of a legal entity is issued by its body or another person authorized to do so by its constituent documents (part three of Article 243, parts one and two of Article 244, part one of Article 246 of the Civil Code of Ukraine).
We draw your attention to the fact that according to Article 13 of the Law of Ukraine "On International Private Law", documents issued by authorized bodies of foreign states in all approved form, recognized as valid in Ukraine in case of their legalization, unless otherwise provided by law or an international treaty of Ukraine.
So, for example, in order to register a representative office of a foreign economic entity on the territory of Ukraine, it is necessary to submit: an application with a request for registration of a representative office, which is drawn up in an arbitrary form; extract from the commercial (banking) register of the country where the foreign economic entity has an officially registered office; a certificate from the bank in which the applicant's account is officially opened; power of attorney for the performance of representative functions, drawn up in accordance with the law of the country where the office of the foreign economic entity is officially registered (part eighteen of Article 5 of the Law of Ukraine "On Foreign Economic Activity").
In addition, in accordance with Clauses 1, 2, Part Nine, Article 11 of the Law of Ukraine "On Prevention and Counteraction of Legalization (Laundering) of Criminal Proceeds, Financing of Terrorism and Financing of the Proliferation of Weapons of Mass Destruction" during the identification and verification of non-residents, as well as trusts and other similar legal entities, the subjects of primary financial monitoring establish: for an individual – surname, first name and (if available) patronymic, date of birth, number (and series, if available) of a passport (or other document that is certifying a person and, in accordance with the legislation of Ukraine, can be used on the territory of Ukraine for the conclusion of transactions), date of issue and the body that issued it, citizenship, information about the place of residence or place of temporary stay in Ukraine, the unique number of the entry in the Unified State Demographic Register (if available ). If, according to the customs of the national minority to which the person belongs, the surname or patronymic are not components of the name, only the components of the name are indicated; for a legal entity – full name, location; details of the bank in which the account is opened, bank account number; information about the executive body (management bodies); identification data of persons who have the right to dispose of accounts and/or property. During the verification of the subject of primary financial monitoring, a copy of a legalized extract from the trade, bank or court register or a notarized registration certificate of the authorized body of a foreign state on the registration of the relevant legal entity is also provided.
In view of the above, for checking the scope of powers of a representative of a foreign legal entity and checking the civil legal capacity and legal capacity of a foreign legal entity, we recommend using duly legalized documents, including information from the trade, bank or court register maintained by the country of residence of such a legal entity, as well as a legalized power of attorney to represent such a foreign legal entity, accompanied by a notarized translation into Ukrainian.
We assume that the identification of a natural person as a representative of a foreign legal entity must be specified in a qualified electronic signature certificate.
According to part three of Article 23 of the Law of Ukraine "On Electronic Trust Services", qualified public key certificates may contain other identification data of individuals or legal entities, optional additional special attributes defined in the standards for qualified public key certificates. These attributes should not affect the interoperability and recognition of qualified electronic signatures.
So, if the subject - a natural person - is related to an organization, the attributes of such a subject can also identify this organization using such attributes as organizationName and organizationIdentifier (clause 4.2.4 of DSTU ETSI EN 319 412-2:2021 (ETSI EN 319 412-2 V2.2.1 (2020-07), IDT) "Electronic signatures and infrastructures. Profiles of certificates. (ESI).Part 2. Profiles of certificates issued to individuals", approved by order of the state enterprise "Ukrainian Research and Training Center for Standardization, Certification and Quality Issues" dated December 16 2021 No. 512).
It should be noted that the specified state standard is given in item 37 of the list of standards applied by qualified providers of electronic trust services during the provision of qualified electronic trust services, which is added to the requirements in the field of electronic trust services, approved by the Resolution of the Cabinet of Ministers of Ukraine dated November 7, 2018 No. 992 (hereinafter - requirements in the field of electronic trust services).
In view of the above, we recommend, if necessary, to add such additional attributes as the name of the organization and the identifier of the organization to the qualified certificate of the electronic signature of a natural person who is a representative of a legal entity.
It should be noted that an additional check of civil legal capacity and legal capacity of a foreign legal entity can be carried out, including with the help of:
1) European portal of the e-justice, which contains links to relevant state registers of 30 European countries:
https://e-justice.europa.eu/content_find_a_company-489-EU-maximize-en.do?idSubpage=1&member=1;
2) the website of the European Network of Business Registers, which contains links to the relevant state registers of 17 European countries and 172 countries of the world:
https://ebra.be/european-business-register-network/;
https://ebra.be/worldwide-registers/.
In addition, a list of reliable sources for verifying the legal capacity and legal capacity of a foreign legal entity can be found in the "Resources for verification" section of the repository on the website of the Belgian electronic trust service provider "GlobalSign" at the link:
https://www.globalsign.com/en/repository/Incorporating_Agency_and_Registration_Agency_List_v1.7.xlsx.
We also recommend that the encoding of the letter part of the details of the qualified certificate of the electronic signature of a natural person who is a representative of a foreign legal entity be carried out in accordance with the table of transliteration of the Ukrainian alphabet into Latin, approved by Resolution No. 55 of the Cabinet of Ministers of Ukraine dated January 27, 2010.
Since subparagraph 6 of paragraph 39 of the requirements in the field of electronic trust services establishes that the certificate policy defines, in particular, the conditions for establishing the applicant (information provided by the applicant during identification of the person, types of documents on the basis of which the applicant is established, requirement of personal presence), we draw your attention to the fact that the work regulations of a qualified provider of electronic trust services, which creates qualified electronic signature certificates for natural persons who are representatives of foreign legal entities, must contain a list of documents on the basis of which such a person is established.
In addition to the above, in order to ensure the creation of favorable conditions for the provision and receipt of electronic trust services, we ask by July 19, 2021 to provide the Ministry of Digital Transformation of Ukraine with answers to the following questions:
- Has the qualified provider of electronic trust services ensured the possibility of identification of a natural person who is a representative of a foreign legal entity and the formation of a corresponding qualified electronic signature certificate?
- Which documents or data from other sources are used for the identification of a natural person who is a representative of a foreign legal entity?
- What information is included in a qualified electronic signature certificate created for an individual who is a representative of a foreign legal entity?
- Does the qualified provider of electronic trust services plan in the future to provide the possibility of identification of a natural person who is a representative of a foreign legal entity and the formation of a corresponding qualified electronic signature certificate?
Taking into account the above, we ask you to ensure the possibility of creating a qualified electronic signature certificate for an individual who is a representative of a foreign legal entity, in order to create equal conditions for receiving electronic trust services.