Dematerialisation and traceability - proceedures

The dematerialization of documents and exchanges is a frequent practice in companies and public authorities, due to the many advantages it brings (better traceability of documents, time savings, paper savings, improved information sharing and fluidity of exchanges, improved economic performance). In view of the widespread use of dematerialization (dematerialization of invoices, pay slips, commercial and consumer contracts, registered letters, claims declarations, etc.), it is necessary to define the concept in order to determine its contours and the resulting legal implications.

In addition, the question of the legal value of dematerialized documents and legal acts remains central.

The development of a dematerialization project cannot be improvised, and requires that the various aspects (legal, political, technical and organizational) be taken into account at top management level. For this reason, it is essential to be aware of the close link between law and technology, and not to limit the legal dimension of such a project solely to legal and regulatory compliance requirements. This dimension must also be taken into account when designing and implementing a dematerialization project.

In concrete terms, the dematerialization process refers to five key concepts: identification of the author of the act (1), expression of consent to an act (2), integrity of the act (3), archiving of the act (4) and traceability of information relating to the act (5).

Before determining the legal aspects of dematerialization and describing current practices, we need to define what dematerialization actually means. Dematerialization can be defined as "the technique by which it is possible to transform a document, a flow of paper documents and the processes applied to it, into a digital document, flow and processes" (CAPRIOLI Eric, Vade-mecum juridique de la dématérialisation des documents, FNTC Les guides de la confiance collection, 4th edition, June 2011). The dematerialization of documents is a perfect illustration of the adaptation of the law to information and communication technologies, insofar as this process is subject to a legal framework. The aim is to guarantee that electronic documents have the same legal value as paper documents. Indeed, if a legal requirement is not translated into technical functionality during the development of such a project, the document resulting from this process is likely to see its legal value called into question.

To this end, dematerialization must be assessed in the light of the requirement for traceability, i.e. this process must enable a faithful and integrated electronic trace to be kept of documents and actions carried out on them, so that the latter can be produced...