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30-CE-0517177/00-36

IMPLEMENTED BY

www.dbblaw.eu

FOR

ENTERPRISE AND INDUSTRY DG

STUDY ON POSSIBLE NATIONAL LEGAL OBSTACLES TO FULL RECOGNITION OF ELECTRONIC PROCESSING

OF PERFORMANCE INFORMATION ON CONSTRUCTION PRODUCTS (UNDER THE CONSTRUCTION PRODUCTS REGULATION), NOTABLY WITHIN THE REGIMES OF

CIVIL LIABILITY AND EVIDENTIARY VALUE

Jean ALBERT Team Leader

COUNTRY REPORT ESTONIA

Submitted by

Indrek ERGMA Country Expert

December 2013 _____________

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1. CHAPTER 1: Introduction.......................................................................................................................3

1.1. Summary of the regulation implementing Directive 89/106/EEC .............................3 1.2. Summary of the changes that are taking place following the adoption of the CPR 3

1.2.1. Current system..........................................................................................................................4 1.2.2. Change proposed or implemented (including repealing of Directive 89/106/EEC) transposing legislation...............................................................................................4

2. CHAPTER 2: Legal context in which the DoP may be relevant ..............................................4 2.1. Presentation of the type of legal contexts in which the DoP may be relevant (i.e. authorizations, liability, procedure and evidentiary rules).........................................................4

2.1.1. Summary of construction products liability.................................................................7 2.1.2. Statute of limitations in the area of construction products liability..................8 2.1.3. Summary of the rules relating to authorizations pertaining to the use of construction products...........................................................................................................................10

2.2. Administrative bodies that may require the DoP ............................................................11 2.2.1. Link with the field of construction products.............................................................11 2.2.2. Link with the field of construction products.............................................................12 2.2.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples) ....................................................................................................12

2.3. Judicial bodies that may require the DoP............................................................................12 2.3.1. Presentation, role function and competence of these bodies............................12 2.3.2. Link with the field of construction products.............................................................13 2.3.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples) ....................................................................................................13

2.4. Insurance organisations..............................................................................................................13 2.4.1. Role of insurance organisations in the construction products industry ......13 2.4.2. Context in which these organizations might need access to the DoPs ..........13

3. CHAPTER 3: Electronic/digital provision of the DoPs before administrative and judicial bodies....................................................................................................................................................14

3.1. Provision of electronic documents to administrative bodies .....................................14 3.1.1. Admissibility of electronic documents (including reference to rules and summary of case examples) ...............................................................................................................14 3.1.2. Weight of admissible electronic documents (including reference to rules and summary of case examples) ......................................................................................................14 3.1.3. Authentication and integrity requirements (including those on preservation) ............................................................................................................................................14

3.2. Provision of electronic documents to judicial bodies ....................................................15 3.2.1. Admissibility of electronic/digital evidence (including reference to rules and summary of case examples) ......................................................................................................15 3.2.2. Weight of admissible electronic/digital evidence (including reference to rules and summary of case examples)...........................................................................................17 3.2.3. Authentication and integrity requirements (including those on preservation) ............................................................................................................................................18

4. CHAPTER 4: Case Study .......................................................................................................................19 5. Conclusion..................................................................................................................................................23

5.1. Use of electronic means to provide DoPs before administrative bodies ...............23 5.2. Use of electronic means to provide DoPs before judicial bodies ..............................23

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1. CHAPTER 1: Introduction

1.1. Summary of the regulation implementing Directive 89/106/EEC

Directive 89/106/EEC is implemented into Estonian law by the Building Act1 (Ehitusseadus in Estonian), Product Conformity Act2 (Toote nuetele vastavuse seadus in Estonian) and government regulations related to the abovementioned acts. The Building Act and regulations given in accordance with it (E.g. regulation Requirements on technical documentation of construction of different types of constructions3 (Eri liiki ehitiste ehitamise tehnilistele dokumentidele esitatavad nuded in Estonian)) contain technical requirements on construction works, building and demolition permits and technical requirements for documentation of construction. Product Conformity Act and regulations given in accordance with it contain provisions of construction materials and goods that are not regulated otherwise in the Building Act or regulations given under it. Among other it regulated the marketing of construction products and supervision of it. The area is currently going through codification and reform process, which means the legislature will change. One of the proposed changes is further promotion of using electronic documents.

1 The Estonian version is available on https://www.riigiteataja.ee/akt/ehs, English translation as of 14 July 2013 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=X50072K7&keel=en&pg=1&ptyyp=RT&tyyp=X&query=ehitusseadu 2 The Estonian version is available on https://www.riigiteataja.ee/akt/tnvs, English translation as of 08 July 2012 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=XXXXXX04K1&keel=en&pg=1&ptyyp=RT&tyyp=X&query=toote+n%F5uetele+vast 3 The Estonian version is available on https://www.riigiteataja.ee/akt/234188?LeiaKehtiv

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1.2. Summary of the changes that are taking place following the adoption of the

CPR

There are no specific amendments planned in relation to CPR becoming fully applicable. However, as the current legislation related to building and planning is divided among many acts and government regulations a codification of the whole area is underway. The initiator and leader of the codification is Ministry of Justice (Justiitsministeerium).

1.2.1. Current system

The current legislation fully implements directive 89/106/EEC.

1.2.2. Change proposed or implemented (including repealing of Directive 89/106/EEC) transposing legislation

The government is planning to send an amendment of Building Act for implementation to the parliament soon. According to the amendment the procedures set in the Building Act for verifying construction products and procedures for assessing conformity are repealed and direct reference to the requirements of the regulation no 305/2011 is made. However, building and planning law is undergoing codification and reformation, which means that the current law will be abolished and a new codex will be implemented. Some of the planned changes include promotion of using electronic documents. However, as the codification process is at early stages no specific changes to be made are known. The planned implementation date of the codification is in this autumn.

2. CHAPTER 2: Legal context in which the DoP may be relevant

2.1. Presentation of the type of legal contexts in which the DoP may be relevant

(i.e. authorizations, liability, procedure and evidentiary rules)

DoP may have relevance in two administrative contexts: the process of issuing building permits and marketing of construction products. However, the main relevance of the DoP will most likely be in relation to liability for defects in construction projects and for

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damage caused by the defective product. In addition, the DoP may have relevance in, for example, misleading marketing practices. Building permit process The Building Act governs the building permit process and the conditions for execution of a construction project. It also covers safety requirements of buildings. A building permit is needed before any construction, reconstruction or enlargement of construction may be initiated. Local municipalities are in charge of issuing building permits. To issue a building permit design documentation and if needed energy performance certificate must be submitted to the local municipality among application. The design documentation must contain inter alia essential requirements and technical data of construction, construction products and equipment used. Local municipality must check if the design documentation meets the imperative criterions. For these purposes it may check if the construction products mentioned in documentation are suitable for the construction in question. Decisions about issuing building permits can be appealed to the administrative courts. In such administrative procedures, the DoP may serve as evidence, for example regarding whether a building has sufficiently safe technical properties. Market surveillance Estonian Technical Surveillance Authority (Tehnilise Jrelevalve Amet) is the responsible carrying out market surveillance of construction products. Estonian Technical Surveillance Authority has the right to enter premises where products are manufactured, stored or sold, perform inspections on the characteristics of construction products by means of documentary review and, where appropriate, physical and laboratory checks on the basis of adequate samples. The Authority performs audits of various products in continuous planned monitoring program and also as a reactive measure to information received from the public or from

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another EU/EEA country. The aim is to check the safety of the products and that users are correctly informed of possible dangers. In consequence, the DoP may have relevance in market surveillances executed by the Estonian Technical Surveillance Authority, since such inspection may include both review of documents and of physical samples. Liability for defective products and damage caused by defective products The DoP may be relevant in construction projects, for example in relation to liability for defective construction products and to liability for damage caused by the defectiveness of the products. A sellers liability for defective products and contractors liability for defective service is primarily governed by the Law of Obligations Act (in Estonian: Vlaigusseadus4). The act governs inter alia contracts relating to the sale of goods and providing services, unless the parties have varied its application. Since the seller is responsible for defects relating to the characteristics of the products, or a contractor for defects relating to performed services, a DoP may be of relevance to determine whether a product or service is considered defective or not. The side claiming the product to be defected carries the burden of proof. Liability for Damage Caused by the Defective Product According to the Law of Obligations Act, a producer is liable for death and personal injuries caused by a defect in his product. A producer is liable for damage to any item of property other than the defective product itself if the item is of a type ordinarily intended for private use, it was used for such purposes by the injured person and the damages exceed 500 Euros. This regulation is based on Directive 85/374 concerning liability for defective products.5 Such responsibility is applicable to movables, even if

4 The Estonian version is available on https://www.riigiteataja.ee/akt/111062013009?leiaKehtiv, English translation as of 01 July 2013 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=X30085K7&keel=en&pg=1&ptyyp=RT&tyyp=X&query=v%F5la%F5 5 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, as amended.

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incorporated into another movable or into an immovable. A product is defective when it does not provide the safety which a person is entitled to expect, taking into account the presentation of the product, the use of product that the victim may have reasonably expected and time of marketing the product. In consequence, the DoP may be considered as such presentation of the product, meaning that incorrect information in the DoP may be of relevance for determining whether a producer is liable for damage caused by a defect in his product.

2.1.1. Summary of construction products liability

The lack of conformity is regulated in the Law of Obligations Act. The general rule that any performance must be at least average quality is in section 4 of the act. Specific rules for sale contract contain in paragraph 217 and for contract for services (e.g contract for design or construction) in paragraph 641. The thing sold or work (the performance) does not confirm to the contract inter alia if

i) the performance does not have the agreed characteristics (for example the Supreme Court stated in criminal case no 3-1-1-7-10 that paragraph 48 section 4 of the Building Act obliges the constructors not just to follow requirements established in the law but also the requirements established in construction standards. The non-compliance with legislation, standards or construction custom may also bring about criminal liability);

ii) the performance fails to be used for the particular purpose for which the purchaser needs it and of which the vendor knew or should have known; or

iii) in the event of consumer contract, the thing or work does not possess the quality usual for that type of thing or work which the purchaser may have reasonably expected based on the nature of the thing or work and considering the statements made publicly with respect to particular characteristics of the thing or work by the seller, producer, previous seller of the thing or by another retailer or contractor, in particular in the advertising of the thing or work or on labels.

The vendor and contractor are responsible for the sale of a thing and performance of work that confirms to the contract. In addition the vendor and contractor must use its

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expertise to reasonably find out what is the intended use of the thing sold or work. The contractor is also responsible for non-conformity of the work resulting from the instructions provided by the customer, defects in the material supplied by the customer or preliminary work performed by third parties if the contractor had not sufficiently checked the instructions of the customer, the materials or the preliminary work (E.g. if customer contracts firm A and B for architectural design and construction respectively and the construction has defect that ultimately derives from architectural design both firm A and B are liable for the damages to the customer unless firm B proves it could not have discovered the defect in design prior to construction). For these reasons DoP may be used to assess whether the thing sold work confirms to the contract. For example DOP may be used to assess statements about the thing sold or intended work prior to the performance, the agreed characteristics and if the performance could be used for the intended purpose. The remedies available for the buyer and customer, due to the products lack of conformity, are primarily rectification and replacement of the defective product or work. In addition the buyer and customer may be entitled to reduce the price or terminate the contract and to claim damages.

2.1.2. Statute of limitations in the area of construction products liability

Sale contract The statute of limitations of sale contracts is provided in section 11 of the Law of Obligations Act and paragraph 146 of the General Part of the Civil Code Act6 (Tsiviilseadustiku ldosa seadus in Estonian). According to this provision, the buyer must put the seller on notice of the defect within two years after receiving the goods. Otherwise, the buyer shall have forfeited the right to invoke the defect unless otherwise provided by a warranty or other similar undertaking. However, if goods sold are construction materials or products and they have produce defects in the construction then the limitation period for these products is five years or ten years if the obliged 6 The Estonian version is available on https://www.riigiteataja.ee/akt/106122010012?leiaKehtiv, the English translation as of 05 April 2011 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=X30082K4&keel=en&pg=1&ptyyp=RT&tyyp=X&query=tsiviilsea

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person intentionally violated its obligations (paragraph 146 of the General Part of the Civil Code Act). In addition the buyer must inform the vendor of the lack of conformity within reasonable time he or she should have become aware of the lack of conformity. In case of consumer sales the reasonable time is deemed to be two months. If the buyer does not inform the vendor in time he or she may not rely on the lack of conformity (Law of Obligations Act paragraph 220). This rule does not apply if the lack of conformity was caused by intent or gross negligence of the seller or the seller is aware or ought to be aware of the lack of conformity of the thing or the circumstances related thereto and does not disclose such information to the purchaser (Law of Obligations Act paragraph 221). For the consumer sale, there is a presumption that a defect which manifests itself within six months following delivery shall be deemed to have existed at the time of delivery, unless otherwise proven or if it is inconsistent with the nature of the goods or the defect (Law of Obligations Act paragraph 218 subsection 2). Contract for services The statute of limitations of contracts for services is provided in section 36 of the Law of Obligations Act and paragraph 146 of the General Part of the Civil Code Act. In addition the guarantee of the contractor of construction is regulated in paragraph 4 of the Building Act. According to the Building Act the constructor guarantees any damages of the construction for two years. The constructor must eliminate construction faults which are revealed during the guarantee period at the contractors expense and within reasonable time. The claims that are not covered by the guarantee are subject to general limitation period of contracts for services.

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According to Law of Obligations Act, the customer must put the contractor on notice of the defect within three years after receiving the work. Otherwise, the buyer shall have forfeited the right to invoke the defect unless otherwise provided by a warranty or other similar undertaking. However, if the contract is for construction then the limitation period is five years from receiving the construction or ten years if the obliged person intentionally violated its obligations (paragraph 146 of the General Part of the Civil Code Act). In addition the customer must inform the contractor of the lack of conformity within reasonable time he or she should have become aware of the lack of conformity. In case of consumer contracts the reasonable time is deemed to be two months. If the buyer does not inform the vendor in time he or she may not rely on the lack of conformity (Law of Obligations Act paragraph 644). This rule does not apply if the lack of conformity was caused by intent or gross negligence of the contractor or the contractor is aware or ought to be aware of the lack of conformity of the work or the circumstances related thereto and does not disclose such information to the customer (Law of Obligations Act paragraph 645). For the consumer contract, there is a presumption that a defect which manifests itself within six months following delivery shall be deemed to have existed at the time of delivery, unless otherwise proven or if it is inconsistent with the nature of the work or the defect (Law of Obligations Act paragraph 642 subsection 2).

2.1.3. Summary of the rules relating to authorizations pertaining to the use of construction products

The manufacturer of construction products must ensure that requirements set to construction products are met. For these purposes either conformity declaration of construction product by the manufacturer, conformity certificate of construction product or conformity certificate of production control by certified certification agency must be issued. Certification of the conformity of a construction product to established requirements shall be based on a harmonised standard, on a technical approval of the construction product, or on a

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standard adopted by a standardisation body of a Member State of the European Union or of a state which has joined the European Free Trade Association (EFTA) and which has been approved by the European Union Standing Committee on Construction. The use of construction products must ensure that the requirements set to construction are met. The specifications of products to be used must be set in design documentation that is verified by the local municipality.

2.2. Administrative bodies that may require the DoP

The administrative bodies that may require DoP are local municipalities and Estonian Technical Surveillance Authority.

2.2.1. Link with the field of construction products

Local municipalities are in charge of issuing building permits. To issue a building permit a design documentation and if needed energy performance certificate must be submitted to the local municipality among application. The design documentation must contain inter alia essential requirements and technical data of construction, construction products and equipment used. Local municipality may check if construction products mentioned in documentation is suitable.

Local municipalities are also in charge of construction oversight. Construction oversight means:

1) verification of conformity to established requirements of building design documentation and of as-built drawings of construction works; 2) issuance of building permits; 3) issuance of occupancy and use permits; 4) verification of conformity of construction works to established requirements; 5) organisation of the evaluation of construction works in order to verify the conformity of construction works to established requirements; 6) verification of the compliance of undertakings with established requirements; 7) organisation of investigations into the causes of accidents on construction works;

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and 8) issuance of enforcement orders within the competence of the issuer.

Estonian Technical Surveillance Authority is authority that carries out the market surveillance. For detailed activities please see section 2.1.

2.2.2. Link with the field of construction products

2.2.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples)

Local municipalities Local municipalities might need access to the DoPs when determining whether building permits should be issued and while performing construction owner sight. Estonian Technical Surveillance Authority Estonian Technical Surveillance Authority is the market surveillance authority of construction products according to paragraph 50 subsection 5 of the Building Act. It is responsible for market surveillance of construction products and can in this capacity need access to the DoPs.

2.3. Judicial bodies that may require the DoP

Judicial bodies that may require the DoP are the general courts, which comprise county courts, circuit courts and the Supreme Court, and the administrative courts, that are first court instances of administrative proceedings (the second and third level courts are circuit courts and the Supreme Court). Disputes may be settled by arbitration tribunals which thus may require DoP.

2.3.1. Presentation, role function and competence of these bodies

The County Court (Estonian: Maakohus) handles criminal cases as well as civil cases (civil law disputes). There are 4 County Courts in Estonia.

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The Administrative Courts (Estonian: Halduskohus) deal with cases relating among other things to disputes between private persons and the authorities. There are 2 Administrative Courts in Esonia. The Circuit Court (Estonian: Ringkonnakohus) is the second instance for all court criminal, administrative and civil cases (except misdemeanors that are processed by the out-of-court administrators, county courts and then by the Supreme Court) that have been dealt with in the county court. There are two circuit courts in Estonia. The Supreme Court (Estonian: Riigikohus) is the final instance in the Estonian judicial system.

2.3.2. Link with the field of construction products

Civil disputes over construction and sale and use of construction products is solved at general court. If someone disputes administrative bodies decision relating to building and use permits then it is solved in administrative court. If a criminal offence is performed (e.g endangerment of people) it is solved at general court.

2.3.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples)

DoP is documentary evidence in the meaning of paragraph 272 of the Code of Civil Proceedings. Therefore DoPs may be used every time when some factual information that is or should be present in DoPs needs to be verified.

2.4. Insurance organisations

2.4.1. Role of insurance organisations in the construction products industry

There is no obligatory insurance for construction products. However, conformity assessment bodies need to have insurance to get activity permit.

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2.4.2. Context in which these organizations might need access to the DoPs

Insurance organisations may want access if someone wishes to insure their construction products or in case of insurance claims. However, the need of information varies across organisations.

3. CHAPTER 3: Electronic/digital provision of the DoPs before

administrative and judicial bodies

3.1. Provision of electronic documents to administrative bodies

3.1.1. Admissibility of electronic documents (including reference to rules and summary of case examples)

There are no specific rules on admissibility of evidence in case of administrative proceedings. However, during the proceedings in a matter, the administrative body is required to establish the facts relevant to the matter and, if necessary, collect evidence on its own initiative for such purpose (paragraph 6 of the Administrative Procedure Act7 (Haldusmenetluse seadus in Estonian)). Therefore if administrative body receives any information during proceedings they must take it into account while making the decision.

3.1.2. Weight of admissible electronic documents (including reference to rules and summary of case examples)

There is no specific regulation governing the weight of electronic documentary. There are no rules that state that some form of documents have more weight than others and courts are free to weight them. However, according to paragraph 80 of the General Part of the Civil Code Act an electronical format has the same legal standing as written format. Electronic format requires that the document i) can be reproduced repeatedly, ii) contains the names of the persons who made the document and iii) is electronically signed.

7 The Estonian version is available on https://www.riigiteataja.ee/akt/hms. The English translation as of 01 January 2012 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=X40071K4&keel=en&pg=1&ptyyp=RT&tyyp=X&query=haldusmen

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3.1.3. Authentication and integrity requirements (including those on preservation)

In case of administrative proceedings the administrative body may investigate on its own initiative the authenticity of documents and demand additional evidence to support its authenticity.

3.2. Provision of electronic documents to judicial bodies

3.2.1. Admissibility of electronic/digital evidence (including reference to rules and summary of case examples)

Civil court proceedings:

The court will only accept evidence that is relevant to the matter. The evidence has no relevance to the matter, above all, if (paragraph 238 subsection 1 of the Code of Civil Procedure):

1) the fact proven need not be proved, among other, if the fact is not disputed;

2) enough evidence has already been provided, in the opinion of the court, in proof of the fact.

If pursuant to law or based on an agreement between the parties, a fact must be proved by evidence of a certain type or form, the fact shall not be proved by evidence of another type or form (paragraph 238 subsection 2 of the Code of Civil Procedure). In addition, the court may refuse to accept evidence and return the evidence, or refuse to take evidence, if (paragraph 238 subsection 3 of the Code of Civil Procedure):

1) the evidence has been obtained by a criminal offence or unlawful violation of a fundamental right;

2) the evidence is not accessible and, above all, if the witness's data or location of a document is unknown, or if the relevance of the evidence is disproportionate to the time necessary for taking the evidence or other difficulties related thereto;

3) the evidence is not presented or the request for taking the evidence is not made in a timely manner;

4) the need for the presenting or taking of evidence is not substantiated; or

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5) the participant in the proceeding requesting the taking of evidence fails to make an advance payment demanded by the court in order to compensate for the costs incurred upon the taking of evidence.

An electronic document has to be submitted to the court in the form of printouts or transmitted by electronic means in a format which permits examination and safe storage thereof in the information system of the court (paragraph 274 of the Code of Civil Procedure).

If an electronic document is sent to the court by e-mail then according to 5 subsection 2 of the Minister of Justices regulation8 (Regulation) the maximum size of the e-mail may be 5 mb. The e-mail must be split into parts if it would otherwise be larger.

If the electronic document is sent to the court by the information system e-toimik then the files must not be larger than 5 megabytes. Total size of procedural documents that are presented together may not exceed 50 megabytes ( 20\3 subsection 2\1 of the Regulation).

Administrative court proceedings:

The court gives a time-limit for the parties to produce evidence explaining what circumstances need to be certified. If the evidence is not presented at time then the evidence is accepted only if the party motivates the delay (paragraph 62 subsection 1 of the Code of Administrative Court Procedure Act9 (Halduskohtumenetluse seadustik in Estonian)).

The court accepts only evidence that has relevance to the case. The evidence is not relevant, above all, if the circumstance does not need to be proved or is proven enough (paragraph 62 subsection 2 of the Code of Administrative Court Procedure Act).

An electronic document has to be submitted to the court in the form of printouts or transmitted by electronic means in a format which permits examination and safe storage

8 https://www.riigiteataja.ee/akt/129122012030?leiaKehtiv 9 The Estonian versioon is available on https://www.riigiteataja.ee/akt/hkms. The English translation as of 15 July 2013 is available on http://www.legaltext.ee/en/andmebaas/tekst.asp?loc=text&dok=X70028K4&keel=en&pg=1&ptyyp=RT&tyyp=X&query=haldusko

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thereof in the information system of the court (paragraph 1 subsection 3 and paragraph 56 subsection 2 of the Code of Administrative Court Procedure Act and paragraph 274 of the Code of Civil Procedure).

The court may decline an evidence if (paragraph 62 subsection 3 of the Code of Administrative Court Procedure Act):

1) the evidence has been obtained by a criminal offence or unlawful violation of a fundamental right;

2) the evidence is not accessible and, above all, if the witness's data or location of a document is unknown, or if the relevance of the evidence is disproportionate to the time necessary for taking the evidence or other difficulties related thereto;

3) the need for the presenting or taking of evidence is not substantiated;

Where evidence required for a just determination of the matter has not been presented or where insufficient evidence has been presented, the court proposes that the participant of the proceedings on whom it is incumbent to prove the relevant fact present the requisite evidentiary items, or takes evidence itself. This is an expression of principle of investigation under which the court must do everything in its power to establish the facts. The principle is further substantiated by section 3 of paragraph 61 of the Code of Administrative Procedure which states that abandoning and withdrawing of evidentiary item has no binding force on the administrative court.

3.2.2. Weight of admissible electronic/digital evidence (including reference to rules and summary of case examples)

According to paragraph 61 of the Code of Administrative Court Procedure no evidence has pre-determined weight nor the participants may not assign certain weight to evidentiary items. The court assesses the evidentiary items as a body of evidence and considers relations between evidentiary items.

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The principle of free evaluation of evidence applies to civil procedures as well. However, according to paragraph 232 section 2 of the Code of Civil Procedure the parties of a civil dispute may agree on the weight of evidence to which the court is bound. The Supreme Court has specified the principle of free evaluation of evidence in civil case no 3-2-116-08, where it stated that even written and signed documents can be confuted with evidentiary items in other forms. For example even statement of participant given under oath may be used to confute signed documents. There is no further regulation governing the specific weight of electronic documentary.

3.2.3. Authentication and integrity requirements (including those on preservation)

In civil law a factual circumstance is automatically counted as true if the opposing party admits it. A party can withdraw its admittance if a) the other party consents to withdrawal; or b) the party withdrawing admittance proves the claim about factual circumstance is wrong and proves that admittance was due to incorrect understanding of facts (paragraph 231 subsection 3 of the Code of Civil Procedure).

E.g. A and B argue over As use of construction materials. B disputes their quality. A presents a document that it wrongfully claims to be authentic DoP. B believes it to be authentic as well and admits its authenticity. Therefore in the eyes of the court the document is a valid DoP. From now the document will be declared unauthentic only if B can prove that it was in fact not authentic DoP and that B admitted it was authentic DoP based on wrongful information or if A agrees that it is not authentic.

In case the authenticity is not admitted a party may dispute the authenticity of the document if he motivates the authenticity. It may be motivated by for example comparing documents. In case the authenticity is under dispute the court will decide on the matter according to the conscience of the court (paragraph 232 subsections 1 and 2 of the Code of Civil Procedure). However, there are specific rules related to contesting authenticity of documents that are prepared in secure manner enabling establishment of the person who prepared the

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document and the time it was prepared (e.g. documents that are digitally signed). The authenticity of those documents may be contested only if the party substantiates circumstances which give reason to presume that the document has not been prepared by the holder of the digital signature. In one of rare occasions when the Supreme Court has evaluated evidence it has stated in case no 3-3-1-42-10 that a document about statistical data is not a documentary evidence and should be regarded if there is no data to identify the author of statistical data and the document doesnt contain the creation date nor signature.

4. CHAPTER 4: Case Study Manufacturers X and Z have supplied with the construction products the reference number

for the DoPs and the Internet address (Website) where the DoPs can be found.

Manufacturer Y has placed on the construction products QR codes that contain the content

of the DoP and Website where the DoPs can also be found.

The Builder goes to the Websites of Manufactures X and Z, inputs the reference number for

the DoP on the Website and a DoP appears. It can be downloaded the form of PDF or

similar files, is readable and contains the information required by the CPR.

The Builder downloads the DoPs onto his computer and archives it.

The Builder uses his smartphone to read Manufacturer Ys QR Codes, enabling him to view

the DoPs contents. He downloads the DoPs contents onto his smartphone. The

information contained in the QR Codes is readable and reflect the information required by

the CPR.

Hypothesis 1

A couple of years later a claim is brought up having a bearing with the factual performance of a construction product.

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The Builder seeks to produce a digital medium (memory stick, cd, smartphone) containing the content of the relevant DoPs (bearing in mind that for a building there might by hundreds of DoPs) before a court (administrative or civil).

What type of digital medium, if any, is accepted by the Courts to be used in Court?

The builder may provide DoPs before court by means of digital medium. Court accepts mediums that allow the examination of documents. In practice this means that sending files by e-mails, CD-s, DVD-s and memory sticks are acceptable. However, the e-mails should not be larger than 5 megabytes.

Would the content of the digital medium produced be accepted as evidence of the DoPs

(please describe in detail in which circumstances and under which conditions (citing

relevant rules or case examples), if any, the digital medium would or would not be

accepted as evidence)?

Yes, the content of the digital medium produced is accepted as evidence of DoPs. The file should be readable through use of standard programs, i.e for example formats such as PDF, DOC and ODF. However, if the court cant examine the file (e.g. the medium needs specific reading device that the court does not have) then the content of the digital medium produces is not accepted as evidence of DoPs. In such case a printout of the electronic document must be presented.

Would the content of the digital medium produced be accepted as evidence of the

content of the DoPs (please describe in detail in which circumstances and under which

conditions (citing relevant rules or case examples), if any, the digital medium would or

would not be accepted as evidence of the content of the DoPs)?

Yes, the content of the digital medium produced is accepted as evidence of DoPs. The file should be readable through use of standard programs, i.e for example formats such as PDF, DOC and ODF. However, if the court cant examine the file (e.g. the medium needs specific reading device that the court does not have) then the content of the digital medium produced is not accepted as evidence of DoPs. In such case a printout of the electronic document must be presented.

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Would this be given the same weight as other types of evidence?

The court is free to evaluate the evidence from all perspectives, thoroughly and

objectively and decide, according to the conscience of the court. No evidence has predetermined weight for the court.

The Builder provides the addresses of the Websites where the DoP information can be found.

Would the Court accept the DoP information from the Websites as evidence of the

DoPs (please describe in detail in which circumstances and under which conditions

(citing relevant rules or case examples), if any, the Website addresses would or would

not be accepted as evidence of the DoPs)?

Electronic document must be submitted to the court if it is to be accounted as evidence. Since electronic address is not a document but a link to one then the website address of a document is not an evidence nor would it be accepted.

However, if a file is transferred directly to the court then if it the court can examine it the document is accepted as evidence of DoP. If the electronic document is not accessible then a printout must be presented.

Would the Court accept the DoP information from the Websites as evidence of the

content of the DoPs (please describe in detail in which circumstances and under which

conditions (citing relevant rules or case examples), if any, the Website addresses would

or would not be accepted as evidence of the content of the DoPs)?

Electronic document must be submitted to the court if it is to be accounted as evidence. Since electronic address is not a document but a link to one then the website address of a document is not an evidence nor would it be accepted.

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However, if a file is transferred directly to the court then if it the court can examine it the document is accepted as evidence of DoP. If the electronic document is not accessible then a printout must be presented.

Would the Court give the same weight to this as other types of evidence?

No weight is given to the link as it is not accepted. As for the printout the court shall decide its weight based on the evaluation rules.

Hypothesis 2

The builder needs to obtain a final building permit from the authorities. He/she, as part of the documentation used to obtain the final building approval produces a digital medium (memory stick, cd, smartphone) containing the content of the relevant DoPs. Would the building inspectors/approval body accept the builders medium (please describe

in detail in which circumstances and under which conditions (citing relevant rules or case

examples), if any, the digital medium would or would not be accepted)?

The medium is accepted if they can examine the document. There are no rules on what medium can or should be examined. However the administrative bodies have to clear up important issues and if necessary collect evidence at its own initiative. Therefore if the reading of medium is reasonably possible the administrative body must take it into account. In addition builder may present a printout of the medium.

He/she, as part of the documentation used to obtain the final building approval produces the Website addresses. Would the building inspectors/approval body accept the builders provision of the Website

addresses (please describe in detail in which circumstances and under which conditions

(citing relevant rules or case examples), if any, the Website addresses would or would not

be accepted)?

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Administrative bodies have to clear up important issues and if necessary collect evidence at its own initiative. Since the administrative bodies are given information about the website and that they contain information relevant to the case they must make reasonable efforts to access to website and its content.

5. Conclusion

5.1. Use of electronic means to provide DoPs before administrative bodies

DoPs can be provided electronically before administrative bodies. This includes the right to present links to the documents.

5.2. Use of electronic means to provide DoPs before judicial bodies

DoPs can be provided electronically to judicial bodies. However, the documents need to be in a format that allows the bodies to view them and their integrity must be preserved. In addition documents should be given to judicial bodies directly and not just links to them. The maximum size of e-mails and electronic documents sent through e-toimik is 5 megabytes. If the documents are larger than 5 megabytes they must be split into parts or given over on data mediums. The electronic documents must be comprehendible to the court.

1. CHAPTER 1: Introduction1.1. Summary of the regulation implementing Directive 89/106/EEC1.2. Summary of the changes that are taking place following the adoption of the CPR1.2.1. Current system1.2.2. Change proposed or implemented (including repealing of Directive 89/106/EEC) transposing legislation

2. CHAPTER 2: Legal context in which the DoP may be relevant2.1. Presentation of the type of legal contexts in which the DoP may be relevant (i.e. authorizations, liability, procedure and2.1.1. Summary of construction products liability2.1.2. Statute of limitations in the area of construction products liability2.1.3. Summary of the rules relating to authorizations pertaining to the use of construction products

2.2. Administrative bodies that may require the DoP2.2.1. Link with the field of construction products2.2.2. Link with the field of construction products2.2.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples)

2.3. Judicial bodies that may require the DoP2.3.1. Presentation, role function and competence of these bodies2.3.2. Link with the field of construction products2.3.3. Context in which these bodies might need access to the DoPs (including reference to rules and examples)

2.4. Insurance organisations2.4.1. Role of insurance organisations in the construction products industry2.4.2. Context in which these organizations might need access to the DoPs

3. CHAPTER 3: Electronic/digital provision of the DoPs before administrative and judicial bodies3.1. Provision of electronic documents to administrative bodies3.1.1. Admissibility of electronic documents (including reference to rules and summary of case examples)3.1.2. Weight of admissible electronic documents (including reference to rules and summary of case examples)3.1.3. Authentication and integrity requirements (including those on preservation)

3.2. Provision of electronic documents to judicial bodies3.2.1. Admissibility of electronic/digital evidence (including reference to rules and summary of case examples)3.2.2. Weight of admissible electronic/digital evidence (including reference to rules and summary of case examples)3.2.3. Authentication and integrity requirements (including those on preservation)

4. CHAPTER 4: Case Study5. Conclusion5.1. Use of electronic means to provide DoPs before administrative bodies5.2. Use of electronic means to provide DoPs before judicial bodies