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Bitkom e.V.

Brief Introduction: Bitkom welcomes EBA’s draft guidance for remote customer onboarding to fulfill Know-Your-Customer (KYC) requirements at this particular point in time. We want to further point out that we appreciate the close alignment with eIDAS, which is regarded to create greater harmonization. With the significant demand for more digital services, increasing applications in AI technology, coupled with the EU’s proposal for a secure Digital Identity, EBA’s draft is a reminder that assessing the digital ecosystem from a regulatory and technological stance is warranted in order to achieve expedient harmonization across the EU. Amendments to remote KYC onboarding legislation continue to evolve, but there remains fragmentation between national law, which poses risks to security and effects service across Member States. Particularly, Germany’s NCA (BaFin) is known for a restrictive use of KYC-compliant remote customer onboarding which poses a severe disadvantage for German financial institutions. The need for maintaining robust security and data privacy provisions is paramount for the digital identity verification ecosystem.

Response to Q1:
According to Bitkom, definitions need further clarification by providing examples and offering procedural guidance for financial institutions.
Paragraph 9: The current definition of Digital Identity Issuer risks complicating the single market for remote onboarding service providers in the EU. There is a distinction between an Issuer of a Digital Identity (i.e. eID service providers under eIDAS) and a business providing verification/authentication services for the purposes of onboarding. This distinction should be reflected in the EBA guidelines to avoid any confusion. European legislative tools (including Regulations, Directives, Delegated Acts and Guidelines) should have consistent definitions to avoid fragmentation in the application of rules, and to provide legal certainty to market participants.
Section 4.1.3 remains unclear in terms of whether the requirements only refer to entities relying on trust services. Paragraph 16 is directly referencing qualified trust providers; the guidelines should also allow for financial service providers to consider service providers that have received certification through a national conformity assessment body under the eIDAS Regulation (which are not considered qualified trust service providers) to still appropriately meet the criteria in paragraph 15.
Service providers having received equivalent certification under the eIDAS Regulation or the AML Directive uphold the same standards. Therefore, they should not have to prove their process requirements through yet another set of criteria. Paragraph 15 should also stipulate that once one Member State recognizes that a service provider meets all the criteria set out in the paragraph mutual recognition across Europe should be applied. Thereby, service providers are not mandated to provide the same proof every time they choose to expand their service to a new marketplace within the EU.
Evidence collection, in the sense of identification of evidence to accept, could be more stringently defined in the guidelines in order to provide clarity.
This section starts with the sentence: "Where the financial sector operators accept paper copies, photos or scans of paper-based documents in the course of remote customer onboarding without having the possibility to examine the original identification document, they should take steps to have sufficient assurance as to the reliability of the copy provided. This may include verifying". Phrases such as “may include” are exactly what leads to differing interpretations of the rules by national competent authorities. We would argue for a risk-based distinction of the various steps, which would set out what steps are required depending on what levels of risk are involved.
The document is not clear on when a fully automated process based on biometrics is allowed and Paragraph 39 suggests manual check: “Financial sector operators should verify the unambiguous match between the biometric data indicated on the submitted identity document and the customer being onboarded.
Paragraph 42 on insufficient quality: The guidelines should allow for repeated attempts of remote customer onboarding with other pieces of evidence as well as a face-to-face verification via videoconference. Only after repeated attempts and the virtual face-to-face prove unable to alleviate the ‘uncertainty and ambiguity’ should the customer be required to have a face-to-face interaction in the same physical location.
Photo Quality: paragraph 43(a) requires “absolute clarity” in photographs. We would suggest more precise language, such as “the required properties are captured with the necessary clarity to allow the proper verification of the customer’s identity.” as is the case in paragraph 44(a).
Liveness detection: paragraph 43(c) appears to require liveness detection verifications as part of any instance of photograph-based onboarding. This is not appropriate as it does not take a technology neutral approach, fails to consider solutions which are widely used in the market and work effectively, and is disproportionate in terms of what it seeks to achieve. As underlined in paragraph, liveness detection should be left for cases where ML/TF risks are higher, rather than a default necessity for all photograph-based onboarding processes.
Paragraph 43(d) on reliable algorithms: it is welcomed that reliable algorithms are allowed for completing verification instead of the need for human verification. Nevertheless, we do still require clarity on what the wording “in the absence of human verification” means. Does this mean that operators can choose AI over humans to verify without issues, or is this only allowed where humans cannot do so for distinctive reasons? We assume this would be the former, and if so, we would recommend clarifying the passage to avoid misinterpretations on national levels.
Paragraph 47 on waving specific requirements: “Where financial sector operators resort to digital identity issuers to identify and verify the customer, which are qualified trust services in accordance with Regulation (EU) No 910/2014, or to any other digital identity issuer regulated, recognised, approved or accepted by the relevant national authorities as referred to in Article 13(1)(a) of Directive (EU)2015/849.”
While the meaning of this sentence is a bit unclear, the likely interpretation is that if qualified trust services, or electronic identification accepted for AML purposes by the national authority, are used, then there is no need to check how these actors carried out the identity proofing.
In addition to recognizing qualified trust services, the guidelines (paragraph 48) state that financial sector operators should use a Digital Identity Issuer with a similar level of assurance as to the level substantial or high as in relation to trust services under Regulation (EU) No 910/2014, which are in particular, similar in relation to reducing substantially the risk of impersonation, misuse or alteration of the identity. The phrase “in relation to trust services” seems slightly vague here. The reference to the assurance level “substantial” as outlined in eIDAS ((EU) No 910/2014) chapter 2 should be referenced more clearly.
Regarding the use of digital identities in the onboarding process, presumably including qualified trust services, it is not explicitly stated that this should not be considered as outsourcing.
Requirements in paragraph 56 (a) “necessary steps” do not provide the needed clarity to match national KYC requirements which causes difficulties to rely on TPPs. In general, section 4.6 should incorporate sub-outsourcing to effectively harmonise the EU outsourcing regime and create further certainty for CDD service providers. This is especially important as tech businesses and startups in the AML space tend to specialize on specific elements of the CDD process.
Bitkom e.V.