NIS 2 Directive, Preamble 131-144.
(131) Member States should be able to lay down the rules on criminal penalties for infringements of the national rules transposing this Directive. However, the imposition of criminal penalties for infringements of such national rules and of related administrative penalties should not lead to a breach of the principle of ne bis in idem, as interpreted by the Court of Justice of the European Union.
(132) Where this Directive does not harmonise administrative penalties or where necessary in other cases, for example in the event of a serious infringement of this Directive, Member States should implement a system which provides for effective, proportionate and dissuasive penalties. The nature of such penalties and whether they are criminal or administrative should be determined by national law.
(133) In order to further strengthen the effectiveness and dissuasiveness of the enforcement measures applicable to infringements of this Directive, the competent authorities should be empowered to suspend temporarily or to request the temporary suspension of a certification or authorisation concerning part or all of the relevant services provided or activities carried out by an essential entity and request the imposition of a temporary prohibition of the exercise of managerial functions by any natural person discharging managerial responsibilities at chief executive officer or legal representative level.
Given their severity and impact on the entities’ activities and ultimately on users, such temporary suspensions or prohibitions should only be applied proportionally to the severity of the infringement and taking account of the circumstances of each individual case, including whether the infringement was intentional or negligent, and any actions taken to prevent or mitigate the material or non-material damage.
Such temporary suspensions or prohibitions should only be applied as a last resort, namely only after the other relevant enforcement measures laid down in this Directive have been exhausted, and only until the entity concerned takes the necessary action to remedy the deficiencies or comply with the requirements of the competent authority for which such temporary suspensions or prohibitions were applied. The imposition of such temporary suspensions or prohibitions should be subject to appropriate procedural safeguards in accordance with the general principles of Union law and the Charter, including the right to an effective remedy and to a fair trial, the presumption of innocence and the rights of the defence.
(134) For the purpose of ensuring entities’ compliance with their obligations laid down in this Directive, Member States should cooperate with and assist each other with regard to supervisory and enforcement measures, in particular where an entity provides services in more than one Member State or where its network and information systems are located in a Member State other than that where it provides services. When providing assistance, the requested competent authority should take supervisory or enforcement measures in accordance with national law. In order to ensure the smooth functioning of mutual assistance under this Directive, the competent authorities should use the Cooperation Group as a forum to discuss cases and particular requests for assistance.
(135) In order to ensure effective supervision and enforcement, in particular in a situation with a cross-border dimension, a Member State that has received a request for mutual assistance should, within the limits of that request, take appropriate supervisory and enforcement measures in relation to the entity that is the subject of that request, and that provides services or has a network and information system on the territory of that Member State.
(136) This Directive should establish cooperation rules between the competent authorities and the supervisory authorities under Regulation (EU) 2016/679 to deal with infringements of this Directive related to personal data.
(137) This Directive should aim to ensure a high level of responsibility for the cybersecurity risk-management measures and reporting obligations at the level of the essential and important entities. Therefore, the management bodies of the essential and important entities should approve the cybersecurity risk-management measures and oversee their implementation.
(138) In order to ensure a high common level of cybersecurity across the Union on the basis of this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of supplementing this Directive by specifying which categories of essential and important entities are to be required to use certain certified ICT products, ICT services and ICT processes or obtain a certificate under a European cybersecurity certification scheme.
It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(139) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to lay down the procedural arrangements necessary for the functioning of the Cooperation Group and the technical and methodological as well as sectoral requirements concerning the cybersecurity risk-management measures, and to further specify the type of information, the format and the procedure of incident, cyber threat and near miss notifications and of significant cyber threat communications, as well as cases in which an incident is to be considered to be significant. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(140) The Commission should periodically review this Directive, after consulting stakeholders, in particular with a view to determining whether it is appropriate to propose amendments in light of changes to societal, political, technological or market conditions. As part of those reviews, the Commission should assess the relevance of the size of the entities concerned, and the sectors, subsectors and types of entity referred to in the annexes to this Directive for the functioning of the economy and society in relation to cybersecurity. The Commission should assess, inter alia, whether providers, falling within the scope of this Directive, that are designated as very large online platforms within the meaning of Article 33 of Regulation (EU) 2022/2065 of the European Parliament and of the Council could be identified as essential entities under this Directive.
(141) This Directive creates new tasks for ENISA, thereby enhancing its role, and could also result in ENISA being required to carry out its existing tasks under Regulation (EU) 2019/881 to a higher level than before. In order to ensure that ENISA has the necessary financial and human resources to carry out existing and new tasks, as well as to meet any higher level of execution of those tasks resulting from its enhanced role, its budget should be increased accordingly. In addition, in order to ensure the efficient use of resources, ENISA should be given greater flexibility in the way that it is able to allocate resources internally for the purpose of effectively carrying out its tasks and meeting expectations.
(142) Since the objective of this Directive, namely to achieve a high common level of cybersecurity across the Union, cannot be sufficiently achieved by the Member States but can rather, by reason of the effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(143) This Directive respects the fundamental rights, and observes the principles, recognised by the Charter, in particular the right to respect for private life and communications, the protection of personal data, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and the rights of the defence. The right to an effective remedy extends to the recipients of services provided by essential and important entities. This Directive should be implemented in accordance with those rights and principles.
(144) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on 11 March 2021,
HAVE ADOPTED THIS DIRECTIVE:
Note: This is the final text of the NIS 2 Directive. The full name is "Directive (EU) 2022/2555 of the European Parliament and of the Council of 14 December 2022 on measures for a high common level of cybersecurity across the Union, amending Regulation (EU) No 910/2014 and Directive (EU) 2018/1972, and repealing Directive (EU) 2016/1148 (NIS 2 Directive)".
Articles, Directive (EU) 2022/2555 (NIS 2 Directive):