The European Commission has been going crazy over the last few weeks issuing consultations on matters relevant to the legal profession, and we are struggling to keep up: ADR, collective redress, Recognition of Professional Qualifications Directive, free movement of public documents.

We have just submitted responses to them on a string of others, including: contract law, training, and data protection.

But the one which I want to discuss in greater detail will induce anxiety attacks among some in the UK. Just last week, the Commission issued a consultation on electronic identification, authentication and signatures.

I can hear the reactions already… ‘Don’t speak about it – we don’t need or want it here.’

But curiously this topic is being raised more and more regularly, and is coming at us from several directions.

We can no longer ignore it. Neelie Kroes, Commission Vice President for the Digital Agenda, said at the launch: ‘I welcome everybody's views on how we can best verify people's identities and signatures when we buy, sell or undertake administrative procedures online that need to be highly secure.

‘I want to help all Europeans get online without feeling that they will fall victim to data frauds or scams.’

This issue has been hovering over the legal profession for more than a decade. It used to be raised in terms of protecting the confidentiality of lawyer-client communications.

Some thought – still think – that these should be protected by digital certificates to ensure confidentiality.

To do otherwise is like writing to a client on an open postcard.

Despite this, lawyers continue to communicate in nearly every case by unsecured e-mail, and nothing has happened so far to tell them to the contrary.

In particular, at any rate to my knowledge, there has been no court case or ethical ruling to say that digital certificates must be used in significant communications.

Now the question has returned in a different form.

It is no longer to protect client confidentiality, but to secure cross-border transactions with competent authorities in another Member State, and to ensure the interoperability of justice systems within the EU.

For instance, we are involved in a project called e-CODEX, which seeks to implement these two aims.

In simple terms, the goal is to enable a solicitor in due course to conduct a transaction across borders with the land registry in Warsaw or the insolvency register in Lisbon, or to file documents in a court in another Member State.

The project began only at the beginning of this year, and there are 15 justice ministries involved (not the UK’s).

At one of the first meetings, the question was raised as to how people such as lawyers would gain access to the system.

The obvious solution proposed was by digital certificate, and this is now being considered.

Some may feel that there is still no need to do anything: we hate ID cards, digital certificates and anything similar, don’t we?

But decisions are being taken regardless. The current Commission consultation I mentioned is not limited to justice issues and so asks general questions, but with a clear relevance for lawyers (it talks about the issuance of authentic electronic documents, for instance, and legal certainty).

It is the opportunity for both sides to put their case. We know the arguments of the proponents of digital certificates in terms of security.

Do opponents have the arguments to show that digital certificates are not necessary for cross-border legal transactions, and that some other technology or system will provide an equally secure environment, including for document filing with the courts?

I must add that the CCBE is still to come to its own view on this, although we do have guidelines for legal professionals using e-signatures – and so I am sorry if the heading to this piece lured you in on the basis that you would get a firm answer to the question posed.

We have undertaken a quick consultation of our members and, from responses received so far, we have learned that 7 countries issue digital certificates to their lawyers (Austria, Czech Republic, France, Hungary, Italy, Spain and Switzerland).

That is just under a quarter of our member countries.

Other institutions, such as the European Court of Justice in Luxembourg, are preparing their own e-filing system.

In addition, and as a preliminary step towards a probably similar eventual outcome for business transactions, the Commission announced this week a draft directive which will link up all the business registers in the EU (think Companies House for the UK) to enable better cross-border coordination.

So, decisions are being made now, and lawyers should know what they want. Digital certificates or not – which way will the UK go?