NIS 2 Directive, Proposal 16.12.2020

The NIS 2 Directive, Preamble 41-50

NIS 2 Directive (Proposal 16.12.2020) Preamble 41-50.

(41) In order to avoid imposing a disproportionate financial and administrative burden on essential and important entities, the cybersecurity risk management requirements should be proportionate to the risk presented by the network and information system concerned, taking into account the state of the art of such measures.

(42) Essential and important entities should ensure the security of the network and information systems which they use in their activities. Those are primarily private network and information systems managed by their internal IT staff or the security of which has been outsourced. The cybersecurity risk management and reporting requirements pursuant to this Directive should apply to the relevant essential and important entities regardless of whether they perform the maintenance of their network and information systems internally or outsource it.

(43) Addressing cybersecurity risks stemming from an entity’s supply chain and its relationship with its suppliers is particularly important given the prevalence of incidents where entities have fallen victim to cyber-attacks and where malicious actors were able to compromise the security of an entity’s network and information systems by exploiting vulnerabilities affecting third party products and services. Entities should therefore assess and take into account the overall quality of products and cybersecurity practices of their suppliers and service providers, including their secure development procedures.

(44) Among service providers, managed security services providers (MSSPs) in areas such as incident response, penetration testing, security audits and consultancy play a particularly important role in assisting entities in their efforts to detect and respond to incidents. Those MSSPs have however also been the targets of cyberattacks themselves and through their close integration in the operations of operators pose a particular cybersecurity risk. Entities should therefore exercise increased diligence in selecting an MSSP.

(45) Entities should also address cybersecurity risks stemming from their interactions and relationships with other stakeholders within a broader ecosystem. In particular, entities should take appropriate measures to ensure that their cooperation with academic and research institutions takes place in line with their cybersecurity policies and follows good practices as regards secure access and dissemination of information in general and the protection of intellectual property in particular. Similarly, given the importance and value of data for the activities of the entities, when relying on data transformation and data analytics services from third parties, the entities should take all appropriate cybersecurity measures.

(46) To further address key supply chain risks and assist entities operating in sectors covered by this Directive to appropriately manage supply chain and supplier related cybersecurity risks, the Cooperation Group involving relevant national authorities, in cooperation with the Commission and ENISA, should carry out coordinated sectoral supply chain risk assessments, as was already done for 5G networks following Recommendation (EU) 2019/534 on Cybersecurity of 5G networks, with the aim of identifying per sector which are the critical ICT services, systems or products, relevant threats and vulnerabilities.

(47) The supply chain risk assessments, in light of the features of the sector concerned, should take into account both technical and, where relevant, non-technical factors including those defined in Recommendation (EU) 2019/534, in the EU wide coordinated risk assessment of 5G networks security and in the EU Toolbox on 5G cybersecurity agreed by the Cooperation Group. To identify the supply chains that should be subject to a coordinated risk assessment, the following criteria should be taken into account: (i) the extent to which essential and important entities use and rely on specific critical ICT services, systems or products; (ii) the relevance of specific critical ICT services, systems or products for performing critical or sensitive functions, including the processing of personal data; (iii) the availability of alternative ICT services, systems or products; (iv) the resilience of the overall supply chain of ICT services, systems or products against disruptive events and (v) for emerging ICT services, systems or products, their potential future significance for the entities’ activities.

(48) In order to streamline the legal obligations imposed on providers of public electronic communications networks or publicly available electronic communications services, and trust service providers related to the security of their network and information systems, as well as to enable those entities and their respective competent authorities to benefit from the legal framework established by this Directive (including designation of CSIRT responsible for risk and incident handling, participation of competent authorities and bodies in the work of the Cooperation Group and the CSIRT network), they should be included in the scope of application of this Directive. The corresponding provisions laid down in Regulation (EU) No 910/2014 of the European Parliament and of the Council and Directive (EU) 2018/1972 of the European Parliament and of the Council related to the imposition of security and notification requirement on these types of entities should therefore be repealed. The rules on reporting obligations should be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council.

(49) Where appropriate and to avoid unnecessary disruption, existing national guidelines and national legislation adopted for the transposition of the rules related to security measures laid down in Article 40(1) of Directive (EU) 2018/1972, as well as of the requirements of Article 40(2) of that Directive concerning the parameters related to the significance of an incident, should continue to be used by the competent authorities in charge of supervision and enforcement for the purposes of this Directive.

(50) Given the growing importance of number-independent interpersonal communications services, it is necessary to ensure that such services are also subject to appropriate security requirements in view of their specific nature and economic importance. Providers of such services should thus also ensure a level of security of network and information systems appropriate to the risk posed. Given that providers of number-independent interpersonal communications services normally do not exercise actual control over the transmission of signals over networks, the degree of risk for such services can be considered in some respects to be lower than for traditional electronic communications services. The same applies to interpersonal communications services which make use of numbers and which do not exercise actual control over signal transmission.

Note: This is not the final text of the NIS 2 Directive. This is the text of the NIS 2 Directive Proposal of 16.12.2020.