NIS 2 Directive, Proposal 16.12.2020

The NIS 2 Directive, Preamble 71-84

NIS 2 Directive (Proposal 16.12.2020) Preamble 71-84.

(71) In order to make enforcement effective, a minimum list of administrative sanctions for breach of the cybersecurity risk management and reporting obligations provided by this Directive should be laid down, setting up a clear and consistent framework for such sanctions across the Union. Due regard should be given to the nature, gravity and duration of the infringement, the actual damage caused or losses incurred or potential damage or losses that could have been triggered, the intentional or negligent character of the infringement, actions taken to prevent or mitigate the damage and/or losses suffered, the degree of responsibility or any relevant previous infringements, the degree of cooperation with the competent authority and any other aggravating or mitigating factor. The imposition of penalties including administrative fines should be subject to appropriate procedural safeguards in accordance with the general principles of Union law and the Charter of Fundamental Rights of the European Union, including effective judicial protection and due process.

(72) In order to ensure effective enforcement of the obligations laid down in this Directive, each competent authority should have the power to impose or request the imposition of administrative fines.

(73) Where administrative fines are imposed on an undertaking, an undertaking should be understood to be an undertaking in accordance with Articles 101 and 102 TFEU for those purposes. Where administrative fines are imposed on persons that are not an undertaking, the supervisory authority should take account of the general level of income in the Member State as well as the economic situation of the person in considering the appropriate amount of the fine. It should be for the Member States to determine whether and to what extent public authorities should be subject to administrative fines. Imposing an administrative fine does not affect the application of other powers by the competent authorities or of other penalties laid down in the national rules transposing this Directive.

(74) 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.

(75) Where this Directive does not harmonise administrative penalties or where necessary in other cases, for example in cases of serious infringements of the obligations laid down in this Directive, Member States should implement a system which provides for effective, proportionate and dissuasive penalties. The nature of such penalties, criminal or administrative, should be determined by Member State law.

(76) In order to further strengthen the effectiveness and dissuasiveness of the penalties applicable to infringements of obligations laid down pursuant to this Directive, the competent authorities should be empowered to apply sanctions consisting of the suspension of a certification or authorisation concerning part or all the services provided by an essential entity and the imposition of a temporary ban from the exercise of managerial functions by a natural person. Given their severity and impact on the entities’ activities and ultimately on their consumers, such sanctions should only be applied proportionally to the severity of the infringement and taking account of the specific circumstances of each case, including the intentional or negligent character of the infringement, actions taken to prevent or mitigate the damage and/or losses suffered. Such sanctions should only be applied as ultima ratio, meaning only after the other relevant enforcement actions laid down by this Directive have been exhausted, and only for the time until the entities to which they apply take the necessary action to remedy the deficiencies or comply with the requirements of the competent authority for which such sanctions were applied. The imposition of such sanctions shall be subject to appropriate procedural safeguards in accordance with the general principles of Union law and the Charter of Fundamental Rights of the European Union, including effective judicial protection, due process, presumption of innocence and right of defence.

(77) This Directive should establish cooperation rules between the competent authorities and the supervisory authorities in accordance with Regulation (EU) 2016/679 to deal with infringements related to personal data.

(78) This Directive should aim at ensuring a high level of responsibility for the cybersecurity risk management measures and reporting obligations at the level of the organisations. For these reasons, the management bodies of the entities falling within the scope of this Directive should approve the cybersecurity risk measures and supervise their implementation.

(79) A peer-review mechanism should be introduced, allowing the assessment by experts designated by the Member States of the implementation of cybersecurity policies, including the level of Member States’ capabilities and available resources.

(80) In order to take into account new cyber threats, technological developments or sectorial specificities, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the elements in relation to risk management measures required by this Directive. The Commission should also be empowered to adopt delegated acts establishing which categories of essential entities shall be required to obtain a certificate and under which specific European cybersecurity certification schemes. 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 Inter-institutional Agreement of 13 April 2016 on Better Law-Making 26 . 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.

(81) In order to ensure uniform conditions for the implementation of the relevant provisions of this Directive concerning the procedural arrangements necessary for the functioning of the Cooperation Group, the technical elements related to risk management measures or the type of information, the format and the procedure of incident notifications, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.

(82) The Commission should periodically review this Directive, in consultation with interested parties, in particular with a view to determining the need for modification in the light of changes to societal, political, technological or market conditions.

(83) Since the objective of this Directive, namely to achieve a high common level of cybersecurity in 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.

(84) This Directive respects the fundamental rights, and observes the principles, recognised by the Charter of Fundamental Rights of the European Union, 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 before a court and the right to be heard. This Directive should be implemented in accordance with those rights and principles, HAVE ADOPTED THIS DIRECTIVE:

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.