Article L.100 of the Postal and Electronic Communications Code states that electronic certified mail has the same legal standing as a certified letter, provided it meets the standards set by the EU eIDAS Regulation. This article also differentiates between types of recipients based on their need for consent. Professional recipients, such as businesses or certain organizations, do not require prior consent to receive electronic certified mail. In contrast, non-professional recipients, such as individuals, must have given their consent beforehand. For administrations and local authorities, it is crucial to confirm their professional status before sending electronic certified mail, as this determines whether consent is needed.
For legal professionals, verifying the recipient's status and the relevant legal conditions is essential before sending electronic certified mail. If consent is required, it is advisable to keep documentation of this consent before sending, particularly if the mail might trigger a legal deadline or have significant legal consequences.
When sending electronic certified mail to a company, the recipient is considered a professional, and prior consent is not required. However, the lawyer must ensure that the company accepts this method for formal procedures and that all other relevant conditions are met.
When sending to an individual, prior consent is necessary unless the individual is acting in a professional capacity. For administrations or local authorities, it is important to review the applicable legal framework. If consent is required, it must be obtained in advance and be able to be demonstrated.
Prior consent refers to the authorization to receive electronic certified mail and should not be confused with the acceptance of a specific certified mail. Once sent, the recipient is notified and has a 15-day period to accept or refuse the mail. Proof of acceptance, refusal, or non-claim is then kept in accordance with the applicable rules.
If electronic certified mail is not possible due to a lack of prior consent, another electronic method, such as simple electronic certified mail (ERE), can sometimes be used. ERE may be a simpler and less expensive option for certain communications, particularly when the formal procedure does not specifically require electronic certified mail or when the main goal is to have proof of sending and transmission.
In situations where electronic certified mail is legally required but cannot be used, paper certified mail can still be the preferred option. This allows professionals to choose the appropriate level of security for each situation while managing the associated costs.
Legal professionals should ensure that the service provider they use complies with the applicable regulatory requirements and provides the necessary proof elements, such as identification of the parties involved, data integrity, dates and times of operations, and traceability of the receipt process.
Since 2012, LetReco has supported companies and professionals in their electronic certified mail exchanges. Certified by ANSSI and listed on the European Trust List, LetReco allows users to send electronic messages through an online interface and provides the necessary proofs for each transaction.
Legal Guidelines for Sending Electronic Certified Mail in France
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