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• Entry into force: 2023-01-16 (the publisher's qualifier, word for word: DATPUB +20 V ART 45)
• Deadline: 2027-10-17 (the publisher's qualifier, word for word: B-19.12 V ART 40)
• Deadline: 2028-01-16 (the publisher's qualifier, word for word: V ART 38.2)

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46 articles quoted, 0 held without text.

Page 2 of 2: Article 32 to Article 46.

32. 032 Article 32

    Article 32 Supervisory and enforcement measures in relation to essential entities 1. Member States shall ensure that the supervisory or enforcement measures imposed on essential entities in respect of the obligations laid down in this Directive are effective, proportionate and dissuasive, taking into account the circumstances of each individual case. 2. Member States shall ensure that the competent authorities, when exercising their supervisory tasks in relation to essential entities, have the power to subject those entities at least to: (a) on-site inspections and off-site supervision, including random checks conducted by trained professionals; (b) regular and targeted security audits carried out by an independent body or a competent authority; (c) ad hoc audits, including where justified on the ground of a significant incident or an infringement of this Directive by the essential entity; (d) security scans based on objective, non-discriminatory, fair and transparent risk assessment criteria, where necessary with the cooperation of the entity concerned; (e) requests for information necessary to assess the cybersecurity risk-management measures adopted by the entity concerned, including documented cybersecurity policies, as well as compliance with the obligation to submit information to the competent authorities pursuant to Article 27; (f) requests to access data, documents and information necessary to carry out their supervisory tasks; (g) requests for evidence of implementation of cybersecurity policies, such as the results of security audits carried out by a qualified auditor and the respective underlying evidence. The targeted security audits referred to in the first subparagraph, point (b), shall be based on risk assessments conducted by the competent authority or the audited entity, or on other risk-related available information. The results of any targeted security audit shall be made available to the competent authority. The costs of such targeted security audit carried out by an independent body shall be paid by the audited entity, except in duly substantiated cases when the competent authority decides otherwise. 3. When exercising their powers under paragraph 2, point (e), (f) or (g), the competent authorities shall state the purpose of the request and specify the information requested. 4. Member States shall ensure that their competent authorities, when exercising their enforcement powers in relation to essential entities, have the power at least to: (a) issue warnings about infringements of this Directive by the entities concerned; (b) adopt binding instructions, including with regard to measures necessary to prevent or remedy an incident, as well as time-limits for the implementation of such measures and for reporting on their implementation, or an order requiring the entities concerned to remedy the deficiencies identified or the infringements of this Directive; (c) order the entities concerned to cease conduct that infringes this Directive and desist from repeating that conduct; (d) order the entities concerned to ensure that their cybersecurity risk-management measures comply with Article 21 or to fulfil the reporting obligations laid down in Article 23, in a specified manner and within a specified period; (e) order the entities concerned to inform the natural or legal persons with regard to which they provide services or carry out activities which are potentially affected by a significant cyber threat of the nature of the threat, as well as of any possible protective or remedial measures which can be taken by those natural or legal persons in response to that threat; (f) order the entities concerned to implement the recommendations provided as a result of a security audit within a reasonable deadline; (g) designate a monitoring officer with well-defined tasks for a determined period of time to oversee the compliance of the entities concerned with Articles 21 and 23; (h) order the entities concerned to make public aspects of infringements of this Directive in a specified manner; (i) impose, or request the imposition by the relevant bodies, courts or tribunals, in accordance with national law, of an administrative fine pursuant to Article 34 in addition to any of the measures referred to in points (a) to (h) of this paragraph. 5. Where enforcement measures adopted pursuant to paragraph 4, points (a) to (d) and (f), are ineffective, Member States shall ensure that their competent authorities have the power to establish a deadline by which the essential entity is requested to take the necessary action to remedy the deficiencies or to comply with the requirements of those authorities. If the requested action is not taken within the deadline set, Member States shall ensure that their competent authorities have the power to: (a) suspend temporarily, or request a certification or authorisation body, or a court or tribunal, in accordance with national law, to suspend temporarily a certification or authorisation concerning part or all of the relevant services provided or activities carried out by the essential entity; (b) request that the relevant bodies, courts or tribunals, in accordance with national law, prohibit temporarily any natural person who is responsible for discharging managerial responsibilities at chief executive officer or legal representative level in the essential entity from exercising managerial functions in that entity. Temporary suspensions or prohibitions imposed pursuant to this paragraph shall be applied 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 enforcement measures were applied. The imposition of such temporary suspensions or prohibitions shall 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. The enforcement measures provided for in this paragraph shall not be applicable to public administration entities that are subject to this Directive. 6. Member States shall ensure that any natural person responsible for or acting as a legal representative of an essential entity on the basis of the power to represent it, the authority to take decisions on its behalf or the authority to exercise control of it has the power to ensure its compliance with this Directive. Member States shall ensure that it is possible to hold such natural persons liable for breach of their duties to ensure compliance with this Directive. As regards public administration entities, this paragraph shall be without prejudice to national law as regards the liability of public servants and elected or appointed officials. 7. When taking any of the enforcement measures referred to in paragraph 4 or 5, the competent authorities shall comply with the rights of the defence and take account of the circumstances of each individual case and, as a minimum, take due account of: (a) the seriousness of the infringement and the importance of the provisions breached, the following, inter alia, constituting serious infringement in any event: (i) repeated violations; (ii) a failure to notify or remedy significant incidents; (iii) a failure to remedy deficiencies following binding instructions from competent authorities; (iv) the obstruction of audits or monitoring activities ordered by the competent authority following the finding of an infringement; (v) providing false or grossly inaccurate information in relation to cybersecurity risk-management measures or reporting obligations laid down in Articles 21 and 23; (b) the duration of the infringement; (c) any relevant previous infringements by the entity concerned; (d) any material or non-material damage caused, including any financial or economic loss, effects on other services and the number of users affected; (e) any intent or negligence on the part of the perpetrator of the infringement; (f) any measures taken by the entity to prevent or mitigate the material or non-material damage; (g) any adherence to approved codes of conduct or approved certification mechanisms; (h) the level of cooperation of the natural or legal persons held responsible with the competent authorities. 8. The competent authorities shall set out a detailed reasoning for their enforcement measures. Before adopting such measures, the competent authorities shall notify the entities concerned of their preliminary findings. They shall also allow a reasonable time for those entities to submit observations, except in duly substantiated cases where immediate action to prevent or respond to incidents would otherwise be impeded. 9. Member States shall ensure that their competent authorities under this Directive inform the relevant competent authorities within the same Member State under Directive (EU) 2022/2557 when exercising their supervisory and enforcement powers aiming to ensure compliance of an entity identified as a critical entity under Directive (EU) 2022/2557 with this Directive. Where appropriate, the competent authorities under Directive (EU) 2022/2557 may request the competent authorities under this Directive to exercise their supervisory and enforcement powers in relation to an entity that is identified as a critical entity under Directive (EU) 2022/2557. 10. Member States shall ensure that their competent authorities under this Directive cooperate with the relevant competent authorities of the Member State concerned under Regulation (EU) 2022/2554. In particular, Member States shall ensure that their competent authorities under this Directive inform the Oversight Forum established pursuant to Article 32(1) of Regulation (EU) 2022/2554 when exercising their supervisory and enforcement powers aimed at ensuring compliance of an essential entity that is designated as a critical ICT third-party service provider pursuant to Article 31 of Regulation (EU) 2022/2554. with this Directive.

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33. 033 Article 33

    Article 33 Supervisory and enforcement measures in relation to important entities 1. When provided with evidence, indication or information that an important entity allegedly does not comply with this Directive, in particular Articles 21 and 23 thereof, Member States shall ensure that the competent authorities take action, where necessary, through ex post supervisory measures. Member States shall ensure that those measures are effective, proportionate and dissuasive, taking into account the circumstances of each individual case. 2. Member States shall ensure that the competent authorities, when exercising their supervisory tasks in relation to important entities, have the power to subject those entities at least to: (a) on-site inspections and off-site ex post supervision conducted by trained professionals; (b) targeted security audits carried out by an independent body or a competent authority; (c) security scans based on objective, non-discriminatory, fair and transparent risk assessment criteria, where necessary with the cooperation of the entity concerned; (d) requests for information necessary to assess, ex post, the cybersecurity risk-management measures adopted by the entity concerned, including documented cybersecurity policies, as well as compliance with the obligation to submit information to the competent authorities pursuant to Article 27; (e) requests to access data, documents and information necessary to carry out their supervisory tasks; (f) requests for evidence of implementation of cybersecurity policies, such as the results of security audits carried out by a qualified auditor and the respective underlying evidence. The targeted security audits referred to in the first subparagraph, point (b), shall be based on risk assessments conducted by the competent authority or the audited entity, or on other risk-related available information. The results of any targeted security audit shall be made available to the competent authority. The costs of such targeted security audit carried out by an independent body shall be paid by the audited entity, except in duly substantiated cases when the competent authority decides otherwise. 3. When exercising their powers under paragraph 2, point (d), (e) or (f), the competent authorities shall state the purpose of the request and specify the information requested. 4. Member States shall ensure that the competent authorities, when exercising their enforcement powers in relation to important entities, have the power at least to: (a) issue warnings about infringements of this Directive by the entities concerned; (b) adopt binding instructions or an order requiring the entities concerned to remedy the deficiencies identified or the infringement of this Directive; (c) order the entities concerned to cease conduct that infringes this Directive and desist from repeating that conduct; (d) order the entities concerned to ensure that their cybersecurity risk-management measures comply with Article 21 or to fulfil the reporting obligations laid down in Article 23, in a specified manner and within a specified period; (e) order the entities concerned to inform the natural or legal persons with regard to which they provide services or carry out activities which are potentially affected by a significant cyber threat of the nature of the threat, as well as of any possible protective or remedial measures which can be taken by those natural or legal persons in response to that threat; (f) order the entities concerned to implement the recommendations provided as a result of a security audit within a reasonable deadline; (g) order the entities concerned to make public aspects of infringements of this Directive in a specified manner; (h) impose, or request the imposition by the relevant bodies, courts or tribunals, in accordance with national law, of an administrative fine pursuant to Article 34 in addition to any of the measures referred to in points (a) to (g) of this paragraph. 5. Article 32(6), (7) and (8) shall apply mutatis mutandis to the supervisory and enforcement measures provided for in this Article for important entities. 6. Member States shall ensure that their competent authorities under this Directive cooperate with the relevant competent authorities of the Member State concerned under Regulation (EU) 2022/2554. In particular, Member States shall ensure that their competent authorities under this Directive inform the Oversight Forum established pursuant to Article 32(1) of Regulation (EU) 2022/2554 when exercising their supervisory and enforcement powers aimed at ensuring compliance of an important entity that is designated as a critical ICT third-party service provider pursuant to Article 31 of Regulation (EU) 2022/2554. with this Directive.

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34. 034 Article 34

    Article 34 General conditions for imposing administrative fines on essential and important entities 1. Member States shall ensure that the administrative fines imposed on essential and important entities pursuant to this Article in respect of infringements of this Directive are effective, proportionate and dissuasive, taking into account the circumstances of each individual case. 2. Administrative fines shall be imposed in addition to any of the measures referred to in Article 32(4), points (a) to (h), Article 32(5) and Article 33(4), points (a) to (g). 3. When deciding whether to impose an administrative fine and deciding on its amount in each individual case, due regard shall be given, as a minimum, to the elements provided for in Article 32(7). 4. Member States shall ensure that where they infringe Article 21 or 23, essential entities are subject, in accordance with paragraphs 2 and 3 of this Article, to administrative fines of a maximum of at least EUR or of a maximum of at least 2 % of the total worldwide annual turnover in the preceding financial year of the undertaking to which the essential entity belongs, whichever is higher. 5. Member States shall ensure that where they infringe Article 21 or 23, important entities are subject, in accordance with paragraphs 2 and 3 of this Article, to administrative fines of a maximum of at least EUR or of a maximum of at least 1,4 % of the total worldwide annual turnover in the preceding financial year of the undertaking to which the important entity belongs, whichever is higher. 6. Member States may provide for the power to impose periodic penalty payments in order to compel an essential or important entity to cease an infringement of this Directive in accordance with a prior decision of the competent authority. 7. Without prejudice to the powers of the competent authorities pursuant to Articles 32 and 33, each Member State may lay down the rules on whether and to what extent administrative fines may be imposed on public administration entities. 8. Where the legal system of a Member State does not provide for administrative fines, that Member State shall ensure that this Article is applied in such a manner that the fine is initiated by the competent authority and imposed by competent national courts or tribunals, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by the competent authorities. In any event, the fines imposed shall be effective, proportionate and dissuasive. The Member State shall notify to the Commission the provisions of the laws which it adopts pursuant to this paragraph by 17 October 2024 and, without delay, any subsequent amendment law or amendment affecting them.

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35. 035 Article 35

    Article 35 Infringements entailing a personal data breach 1. Where the competent authorities become aware in the course of supervision or enforcement that the infringement by an essential or important entity of the obligations laid down in Articles 21 and 23 of this Directive can entail a personal data breach, as defined in Article 4, point (12), of Regulation (EU) 2016/679 which is to be notified pursuant to Article 33 of that Regulation, they shall, without undue delay, inform the supervisory authorities as referred to in Article 55 or 56 of that Regulation. 2. Where the supervisory authorities as referred to in Article 55 or 56 of Regulation (EU) 2016/679 impose an administrative fine pursuant to Article 58(2), point (i), of that Regulation, the competent authorities shall not impose an administrative fine pursuant to Article 34 of this Directive for an infringement referred to in paragraph 1 of this Article arising from the same conduct as that which was the subject of the administrative fine under Article 58(2), point (i), of Regulation (EU) 2016/679. The competent authorities may, however, impose the enforcement measures provided for in Article 32(4), points (a) to (h), Article 32(5) and Article 33(4), points (a) to (g), of this Directive. 3. Where the supervisory authority competent pursuant to Regulation (EU) 2016/679 is established in another Member State than the competent authority, the competent authority shall inform the supervisory authority established in its own Member State of the potential data breach referred to in paragraph 1.

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36. 036 Article 36

    Article 36 Penalties Member States shall lay down rules on penalties applicable to infringements of national measures adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, by 17 January 2025, notify the Commission of those rules and of those measures and shall notify it, without delay of any subsequent amendment affecting them.

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37. 037 Article 37

    Article 37 Mutual assistance 1. Where an entity provides services in more than one Member State, or provides services in one or more Member States and its network and information systems are located in one or more other Member States, the competent authorities of the Member States concerned shall cooperate with and assist each other as necessary. That cooperation shall entail, at least, that: (a) the competent authorities applying supervisory or enforcement measures in a Member State shall, via the single point of contact, inform and consult the competent authorities in the other Member States concerned on the supervisory and enforcement measures taken; (b) a competent authority may request another competent authority to take supervisory or enforcement measures; (c) a competent authority shall, upon receipt of a substantiated request from another competent authority, provide the other competent authority with mutual assistance proportionate to its own resources so that the supervisory or enforcement measures can be implemented in an effective, efficient and consistent manner. The mutual assistance referred to in the first subparagraph, point (c), may cover information requests and supervisory measures, including requests to carry out on-site inspections or off-site supervision or targeted security audits. A competent authority to which a request for assistance is addressed shall not refuse that request unless it is established that it does not have the competence to provide the requested assistance, the requested assistance is not proportionate to the supervisory tasks of the competent authority, or the request concerns information or entails activities which, if disclosed or carried out, would be contrary to the essential interests of the Member State’s national security, public security or defence. Before refusing such a request, the competent authority shall consult the other competent authorities concerned as well as, upon the request of one of the Member States concerned, the Commission and ENISA. 2. Where appropriate and with common agreement, the competent authorities of various Member States may carry out joint supervisory actions.

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38. 038 Article 38

    Article 38 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 24(2) shall be conferred on the Commission for a period of five years from 16 January 2023. 3. The delegation of power referred to in Article 24(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 24(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

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39. 039 Article 39

    Article 39 Committee procedure 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. 3. Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a committee member so requests.

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40. 040 Article 40

    Article 40 Review By 17 October 2027 and every 36 months thereafter, the Commission shall review the functioning of this Directive, and report to the European Parliament and to the Council. The report shall in particular assess the relevance of the size of the entities concerned, and the sectors, subsectors and types of entity referred to in Annexes I and II for the functioning of the economy and society in relation to cybersecurity. To that end and with a view to further advancing the strategic and operational cooperation, the Commission shall take into account the reports of the Cooperation Group and the CSIRTs network on the experience gained at a strategic and operational level. The report shall be accompanied, where necessary, by a legislative proposal.

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41. 041 Article 41

    Article 41 Transposition 1. By 17 October 2024, Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the Commission thereof. They shall apply those measures from 18 October 2024. 2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

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42. 042 Article 42

    Article 42 Amendment of Regulation (EU) No 910/2014 In Regulation (EU) No 910/2014, Article 19 is deleted with effect from 18 October 2024.

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43. 043 Article 43

    Article 43 Amendment of Directive (EU) 2018/1972 In Directive (EU) 2018/1972, Articles 40 and 41 are deleted with effect from 18 October 2024.

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44. 044 Article 44

    Article 44 Repeal Directive (EU) 2016/1148 is repealed with effect from 18 October 2024. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex III.

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45. 045 Article 45

    Article 45 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

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46. 046 Article 46

    Article 46 Addressees This Directive is addressed to the Member States.

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