Overwegingen bij COM(2023)209 - Maatregelen ter versterking van de solidariteit en de capaciteit in de Unie om cyberdreigingen en -incidenten op te sporen, zich erop voor te bereiden en erop te reageren - Hoofdinhoud
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| dossier | COM(2023)209 - Maatregelen ter versterking van de solidariteit en de capaciteit in de Unie om cyberdreigingen en -incidenten op te sporen, ... |
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| document | COM(2023)209  |
| datum | 18 april 2023 |
(2)The magnitude, frequency and impact of cybersecurity incidents are increasing, including supply chain attacks aiming at cyberespionage, ransomware or disruption. They represent a major threat to the functioning of network and information systems. In view of the fast-evolving threat landscape, the threat of possible large-scale incidents causing significant disruption or damage to critical infrastructures demands heightened preparedness at all levels of the Union’s cybersecurity framework. That threat goes beyond Russia’s military aggression on Ukraine, and is likely to persist given the multiplicity of state-aligned, criminal and hacktivist actors involved in current geopolitical tensions. Such incidents can impede the provision of public services and the pursuit of economic activities, including in critical or highly critical sectors, generate substantial financial losses, undermine user confidence, cause major damage to the economy of the Union, and could even have health or life-threatening consequences. Moreover, cybersecurity incidents are unpredictable, as they often emerge and evolve within very short periods of time, not contained within any specific geographical area, and occurring simultaneously or spreading instantly across many countries.
(3)It is necessary to strengthen the competitive position of industry and services sectors in the Union across the digitised economy and support their digital transformation, by reinforcing the level of cybersecurity in the Digital Single Market. As recommended in three different proposals of the Conference on the Future of Europe 16 , it is necessary to increase the resilience of citizens, businesses and entities operating critical infrastructures against the growing cybersecurity threats, which can have devastating societal and economic impacts. Therefore, investment in infrastructures and services that will support faster detection and response to cybersecurity threats and incidents is needed, and Member States need assistance in better preparing for, as well as responding to significant and large-scale cybersecurity incidents. The Union should also increase its capacities in these areas, notably as regards the collection and analysis of data on cybersecurity threats and incidents.
(4)The Union has already taken a number of measures to reduce vulnerabilities and increase the resilience of critical infrastructures and entities against cybersecurity risks, in particular Directive (EU) 2022/2555 of the European Parliament and of the Council 17 , Commission Recommendation (EU) 2017/1584 18 , Directive 2013/40/EU of the European Parliament and of the Council 19 and Regulation (EU) 2019/881 of the European Parliament and of the Council 20 . In addition, the Council Recommendation on a Union-wide coordinated approach to strengthen the resilience of critical infrastructure invites Member States to take urgent and effective measures, and to cooperate loyally, efficiently, in solidarity and in a coordinated manner with each other, the Commission and other relevant public authorities as well as the entities concerned, to enhance the resilience of critical infrastructure used to provide essential services in the internal market.
(5)The growing cybersecurity risks and an overall complex threat landscape, with a clear risk of rapid spill-over of cyber incidents from one Member State to others and from a third country to the Union requires strengthened solidarity at Union level to better detect, prepare for and respond to cybersecurity threats and incidents. Member States have also invited the Commission to present a proposal on a new Emergency Response Fund for Cybersecurity in the Council Conclusions on an EU Cyber Posture 21 .
(6)The Joint Communication on the EU Policy on Cyber Defence 22 adopted on 10 November 2022 announced an EU Cyber Solidarity Initiative with the following objectives: strengthening of common EU detection, situational awareness and response capabilities by promoting the deployment of an EU infrastructure of Security Operations Centres (‘SOCs’), supporting gradual building of an EU-level cybersecurity reserve with services from trusted private providers and testing of critical entities for potential vulnerabilities based on EU risk assessments.
(7)It is necessary to strengthen the detection and situational awareness of cyber threats and incidents throughout the Union and to strengthen solidarity by enhancing Member States’ and the Union’s preparedness and capabilities to respond to significant and large-scale cybersecurity incidents. Therefore a pan-European infrastructure of SOCs (European Cyber Shield) should be deployed to build and enhance common detection and situational awareness capabilities; a Cybersecurity Emergency Mechanism should be established to support Member States in preparing for, responding to, and immediately recovering from significant and large-scale cybersecurity incidents; a Cybersecurity Incident Review Mechanism should be established to review and assess specific significant or large-scale incidents. These actions shall be without prejudice to Articles 107 and 108 of the Treaty on the Functioning of the European Union (‘TFEU’).
(8)To achieve these objectives, it is also necessary to amend Regulation (EU) 2021/694 of the European Parliament and of the Council 23 in certain areas. In particular, this Regulation should amend Regulation (EU) 2021/694 as regards adding new operational objectives related to the European Cyber Shield and the Cyber Emergency Mechanism under Specific Objective 3 of DEP, which aims at guaranteeing the resilience, integrity and trustworthiness of the Digital Single Market, at strengthening capacities to monitor cyber-attacks and threats and to respond to them, and at reinforcing cross-border cooperation on cybersecurity. This will be complemented by the specific conditions under which financial support may be granted for those actions should be established and the governance and coordination mechanisms necessary in order to achieve the intended objectives should be defined. Other amendments to Regulation (EU) 2021/694 should include descriptions of proposed actions under the new operational objectives, as well as measurable indicators to monitor the implementation of these new operational objectives.
(9)The financing of actions under this Regulation should be provided for in Regulation (EU) 2021/694, which should remain the relevant basic act for these actions enshrined within the Specific Objective 3 of DEP. Specific conditions for participation concerning each action will be provided for in the relevant work programmes, in line with the applicable provision of Regulation (EU) 2021/694.
(10)Horizontal financial rules adopted by the European Parliament and by the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the Union budget, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget as established in Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council.
(11)For the purpose of sound financial management, specific rules should be laid down for the carry-over of unused commitment and payment appropriations. While respecting the principle that the Union budget is set annually, this Regulation should, on account of the unpredictable, exceptional and specific nature of the cybersecurity landscape, provide for possibilities to carry over unused funds beyond those set out in the Financial Regulation, thus maximising the Cybersecurity Emergency Mechanism’s capacity to support Member States in countering effectively cyber threats.
(12)To more effectively prevent, assess and respond to cyber threats and incidents, it is necessary to develop more comprehensive knowledge about the threats to critical assets and infrastructures on the territory of the Union, including their geographical distribution, interconnection and potential effects in case of cyber-attacks affecting those infrastructures. A large-scale Union infrastructure of SOCs should be deployed (‘the European Cyber Shield’), comprising of several interoperating cross-border platforms, each grouping together several National SOCs. That infrastructure should serve national and Union cybersecurity interests and needs, leveraging state of the art technology for advanced data collection and analytics tools, enhancing cyber detection and management capabilities and providing real-time situational awareness. That infrastructure should serve to increase detection of cybersecurity threats and incidents and thus complement and support Union entities and networks responsible for crisis management in the Union, notably the EU Cyber Crises Liaison Organisation Network (‘EU-CyCLONe’), as defined in Directive (EU) 2022/2555 of the European Parliament and of the Council 24 .
(13)Each Member State should designate a public body at national level tasked with coordinating cyber threat detection activities in that Member State. These National SOCs should act as a reference point and gateway at national level for participation in the European Cyber Shield and should ensure that cyber threat information from public and private entities is shared and collected at national level in an effective and streamlined manner.
(14)As part of the European Cyber Shield, a number of Cross-border Cybersecurity Operations Centres (‘Cross-border SOCs’) should be established. These should bring together National SOCs from at least three Member States, so that the benefits of cross-border threat detection and information sharing and management can be fully achieved. The general objective of Cross-border SOCs should be to strengthen capacities to analyse, prevent and detect cybersecurity threats and to support the production of high-quality intelligence on cybersecurity threats, notably through the sharing of data from various sources, public or private, as well as through the sharing and joint use of state-of-the-art tools, and jointly developing detection, analysis and prevention capabilities in a trusted environment. They should provide new additional capacity, building upon and complementing existing SOCs and computer incident response teams (‘CSIRTs’) and other relevant actors.
(15)At national level, the monitoring, detection and analysis of cyber threats is typically ensured by SOCs of public and private entities, in combination with CSIRTs. In addition, CSIRTs exchange information in the context of the CSIRT network, in accordance with Directive (EU) 2022/2555. The Cross-border SOCs should constitute a new capability that is complementary to the CSIRTs network, by pooling and sharing data on cybersecurity threats from public and private entities, enhancing the value of such data through expert analysis and jointly acquired infrastructures and state of the art tools, and contributing to the development of Union capabilities and technological sovereignty.
(16)The Cross-border SOCs should act as a central point allowing for a broad pooling of relevant data and cyber threat intelligence, enable the spreading of threat information among a large and diverse set of actors (e.g., Computer Emergency Response Teams (‘CERTs’), CSIRTs, Information Sharing and Analysis Centers (‘ISACs’), operators of critical infrastructures). The information exchanged among participants in a Cross-border SOC could include data from networks and sensors, threat intelligence feeds, indicators of compromise, and contextualised information about incidents, threats and vulnerabilities. In addition, Cross-border SOCs should also enter into cooperation agreements with other Cross-border SOCs.
(17)Shared situational awareness among relevant authorities is an indispensable prerequisite for Union-wide preparedness and coordination with regards to significant and large-scale cybersecurity incidents. Directive (EU) 2022/2555 establishes the EU–CyCLONe to support the coordinated management of large-scale cybersecurity incidents and crises at operational level and to ensure the regular exchange of relevant information among Member States and Union institutions, bodies and agencies. Recommendation (EU) 2017/1584 on coordinated response to large-scale cybersecurity incidents and crises addresses the role of all relevant actors. Directive (EU) 2022/2555 also recalls the Commission’s responsibilities in the Union Civil Protection Mechanism (‘UCPM’) established by Decision 1313/2013/EU of the European Parliament and of the Council, as well as for providing analytical reports for the Integrated Political Crisis Response Mechanism (‘IPCR’) arrangements under Implementing Decision (EU) 2018/1993. Therefore, in situations where Cross-border SOCs obtain information related to a potential or ongoing large-scale cybersecurity incident, they should provide relevant information to EU-CyCLONe, the CSIRTs network and the Commission. In particular, depending on the situation, information to be shared could include technical information, information about the nature and motives of the attacker or potential attacker, and higher-level non-technical information about a potential or ongoing large-scale cybersecurity incident. In this context, due regard should be paid to the need-to-know principle and to the potentially sensitive nature of the information shared.
(18)Entities participating in the European Cyber Shield should ensure a high-level of interoperability among themselves including, as appropriate, as regards data formats, taxonomy, data handling and data analysis tools, and secure communications channels, a minimum level of application layer security, situational awareness dashboard, and indicators. The adoption of a common taxonomy and the development of a template for situational reports to describe the technical cause and impacts of cybersecurity incidents should take into account the ongoing work on incident notification in the context of the implementation of Directive (EU) 2022/2555.
(19)In order to enable the exchange of data on cybersecurity threats from various sources, on a large-scale basis, in a trusted environment, entities participating in the European Cyber Shield should be equipped with state-of-the-art and highly-secure tools, equipment and infrastructures. This should make it possible to improve collective detection capacities and timely warnings to authorities and relevant entities, notably by using the latest artificial intelligence and data analytics technologies.
(20)By collecting, sharing and exchanging data, the European Cyber Shield should enhance the Union’s technological sovereignty. The pooling of high-quality curated data should also contribute to the development of advanced artificial intelligence and data analytics technologies. It should be facilitated through the connection of the European Cyber Shield with the pan-European High Performance Computing infrastructure established by Council Regulation (EU) 2021/1173 25 .
(21)While the European Cyber Shield is a civilian project, the cyber defence community could benefit from stronger civilian detection and situational awareness capabilities developed for the protection of critical infrastructure. Cross-border SOCs, with the support of the Commission and the European Cybersecurity Competence Centre (‘ECCC’), and in cooperation with the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’), should gradually develop dedicated protocols and standards to allow for cooperation with the cyber defence community, including vetting and security conditions. The development of the European Cyber Shield should be accompanied by a reflection enabling future collaboration with networks and platforms responsible for information sharing in the cyber defence community, in close cooperation with the High Representative.
(22)Information sharing among participants of the European Cyber Shield should comply with existing legal requirements and in particular Union and national data protection law, as well as the Union rules on competition governing the exchange of information. The recipient of the information should implement, insofar as the processing of personal data is necessary, technical and organisational measures that safeguard the rights and freedoms of data subjects, and destroy the data as soon as they are no longer necessary for the stated purpose and inform the body making the data available that the data have been destroyed.
(23)Without prejudice to Article 346 of TFEU, the exchange of information that is confidential pursuant to Union or national rules should be limited to that which is relevant and proportionate to the purpose of that exchange. The exchange of such information should preserve the confidentiality of the information and protect the security and commercial interests of the entities concerned, in full respect of trade and business secrets.
(24)In view of the increasing risks and number of cyber incidents affecting Member States, it is necessary to set up a crisis support instrument to improve the Union’s resilience to significant and large-scale cybersecurity incidents and complement Member States’ actions through emergency financial support for preparedness, response and immediate recovery of essential services. That instrument should enable the rapid deployment of assistance in defined circumstances and under clear conditions and allow for a careful monitoring and evaluation of how resources have been used. Whilst the primary responsibility for preventing, preparing for and responding to cybersecurity incidents and crises lies with the Member States, the Cyber Emergency Mechanism promotes solidarity between Member States in accordance with Article 3(3) of the Treaty on European Union (‘TEU’).
(25)The Cyber Emergency Mechanism should provide support to Member States complementing their own measures and resources, and other existing support options in case of response to and immediate recovery from significant and large-scale cybersecurity incidents, such as the services provided by the European Union Agency for Cybersecurity (‘ENISA’) in accordance with its mandate, the coordinated response and the assistance from the CSIRTs network, the mitigation support from the EU-CyCLONe, as well as mutual assistance between Member States including in the context of Article 42(7) of TEU, the PESCO Cyber Rapid Response Teams 26 and Hybrid Rapid Response Teams. It should address the need to ensure that specialised means are available to support preparedness and response to cybersecurity incidents across the Union and in third countries.
(26)This instrument is without prejudice to procedures and frameworks to coordinate crisis response at Union level, in particular the UCPM 27 , IPCR 28 , and Directive (EU) 2022/2555. It may contribute to or complement actions implemented in the context of Article 42(7) of TEU or in situations defined in Article 222 of TFEU. The use of this instrument should also be coordinated with the implementation of Cyber Diplomacy Toolbox’s measures, where appropriate.
(27)Assistance provided under this Regulation should be in support of, and complementary to, the actions taken by Member States at national level. To this end, close cooperation and consultation between the Commission and the affected Member State should be ensured. When requesting support under the Cyber Emergency Mechanism, the Member State should provide relevant information justifying the need for support.
(28)Directive (EU) 2022/2555 requires Member States to designate or establish one or more cyber crisis management authorities and ensure they have adequate resources to carry out their tasks in an effective and efficient manner. It also requires Member States to identify capabilities, assets and procedures that can be deployed in the case of a crisis as well as to adopt a national large-scale cybersecurity incident and crisis response plan where the objectives of and arrangements for the management of large-scale cybersecurity incidents and crises are set out. Member States are also required to establish one or more CSIRTs tasked with incident handling responsibilities in accordance with a well-defined process and covering at least the sectors, subsectors and types of entities under the scope of that Directive, and to ensure they have adequate resources to carry out effectively their tasks. This Regulation is without prejudice to the Commission’s role in ensuring the compliance by Member States with the obligations of Directive (EU) 2022/2555. The Cyber Emergency Mechanism should provide assistance for actions aimed at reinforcing preparedness as well as incident response actions to mitigate the impact of significant and large-scale cybersecurity incidents, to support immediate recovery and/or restore the functioning of essential services.
(29)As part of the preparedness actions, to promote a consistent approach and strengthen security across the Union and its internal market, support should be provided for testing and assessing cybersecurity of entities operating in highly critical sectors identified pursuant to Directive (EU) 2022/2555 in a coordinated manner. For this purpose, the Commission, with the support of ENISA and in cooperation with the NIS Cooperation Group established by Directive (EU) 2022/2555, should regularly identify relevant sectors or subsectors, which should be eligible to receive financial support for coordinated testing at Union level. The sectors or subsectors should be selected from Annex I to Directive (EU) 2022/2555 (‘Sectors of High Criticality’). The coordinated testing exercises should be based on common risk scenarios and methodologies. The selection of sectors and development of risk scenarios should take into account relevant Union-wide risk assessments and risk scenarios, including the need to avoid duplication, such as the risk evaluation and risk scenarios called for in the Council conclusions on the development of the European Union's cyber posture to be conducted by the Commission, the High Representative and the NIS Cooperation Group, in coordination with relevant civilian and military bodies and agencies and established networks, including the EU CyCLONe, as well as the risk assessment of communications networks and infrastructures requested by the Joint Ministerial Call of Nevers and conducted by the NIS Cooperation Group, with the support of the Commission and ENISA, and in cooperation with the Body of European Regulators for Electronic Communications (BEREC), the coordinated risk assessments to be conducted under Article 22 of Directive (EU) 2022/2555 and digital operational resilience testing as provided for in Regulation (EU) 2022/2554 of the European Parliament and of the Council 29 . The selection of sectors should also take into account the Council Recommendation on a Union-wide coordinated approach to strengthen the resilience of critical infrastructure.
(30)In addition, the Cyber Emergency Mechanism should offer support for other preparedness actions and support preparedness in other sectors, not covered by the coordinated testing of entities operating in highly critical sectors. Those actions could include various types of national preparedness activities.
(31)The Cyber Emergency Mechanism should also provide support for incident response actions to mitigate the impact of significant and large-scale cybersecurity incidents, to support immediate recovery or restore the functioning of essential services. Where appropriate, it should complement the UCPM to ensure a comprehensive approach to respond to the impacts of cyber incidents on citizens.
(32)The Cyber Emergency Mechanism should support assistance provided by Member States to a Member State affected by a significant or large-scale cybersecurity incident, including by the CSIRTs network set out in Article 15 of Directive (EU) 2022/2555. Member States providing assistance should be allowed to submit requests to cover costs related to dispatching of expert teams in the framework of mutual assistance. The eligible costs could include travel, accommodation and daily allowance expenses of cybersecurity experts.
(33)A Union-level Cybersecurity Reserve should gradually be set up, consisting of services from private providers of managed security services to support response and immediate recovery actions in cases of significant or large-scale cybersecurity incidents. The EU Cybersecurity Reserve should ensure the availability and readiness of services. The services from the EU Cybersecurity Reserve should serve to support national authorities in providing assistance to affected entities operating in critical or highly critical sectors as a complement to their own actions at national level. When requesting support from the EU Cybersecurity Reserve, Member States should specify the support provided to the affected entity at the national level, which should be taken into account when assessing the Member State request. The services from the EU Cybersecurity Reserve may also serve to support Union institutions, bodies and agencies, under similar conditions.
(34)For the purpose of selecting private service providers to provide services in the context of the EU Cybersecurity Reserve, it is necessary to establish a set of minimum criteria that should be included in the call for tenders to select these providers, so as to ensure that the needs of Member States’ authorities and entities operating in critical or highly critical sectors are met.
(35)To support the establishment of the EU Cybersecurity Reserve, the Commission could consider requesting ENISA to prepare a candidate certification scheme pursuant to Regulation (EU) 2019/881 for managed security services in the areas covered by the Cyber Emergency Mechanism.
(36)In order to support the objectives of this Regulation of promoting shared situational awareness, enhancing Union’s resilience and enabling effective response to significant and large-scale cybersecurity incidents, the EU=CyCLONe, the CSIRTs network or the Commission should be able to ask ENISA to review and assess threats, vulnerabilities and mitigation actions with respect to a specific significant or large-scale cybersecurity incident. After the completion of a review and assessment of an incident, ENISA should prepare an incident review report, in collaboration with relevant stakeholders, including representatives from the private sector, Member States, the Commission and other relevant EU institutions, bodies and agencies. As regards the private sector, ENISA is developing channels for exchanging information with specialised providers, including providers of managed security solutions and vendors, in order to contribute to ENISA’s mission of achieving a high common level of cybersecurity across the Union. Building on the collaboration with stakeholders, including the private sector, the review report on specific incidents should aim at assessing the causes, impacts and mitigations of an incident, after it has occurred. Particular attention should be paid to the input and lessons shared by the managed security service providers that fulfil the conditions of highest professional integrity, impartiality and requisite technical expertise as required by this Regulation. The report should be delivered and feed into the work of the EU=CyCLONe, the CSIRTs network and the Commission. When the incident relates to a third country, it will also be shared by the Commission with the High Representative.
(37)Taking into account the unpredictable nature of cybersecurity attacks and the fact that they are often not contained in a specific geographical area and pose high risk of spill-over, the strengthening of resilience of neighbouring countries and their capacity to respond effectively to significant and large-scale cybersecurity incidents contributes to the protection of the Union as a whole. Therefore, third countries associated to the DEP may be supported from the EU Cybersecurity Reserve, where this is provided for in the respective association agreement to DEP. The funding for associated third countries should be supported by the Union in the framework of relevant partnerships and funding instruments for those countries. The support should cover services in the area of response to and immediate recovery from significant or large-scale cybersecurity incidents. The conditions set for the EU Cybersecurity Reserve and trusted providers in this Regulation should apply when providing support to the third countries associated to DEP.
(38)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to specify the conditions for the interoperability between Cross-border SOCs; determine the procedural arrangements for the information sharing related to a potential or ongoing large-scale cybersecurity incident between Cross-border SOCs and Union entities; laying down technical requirements to ensure security of the European Cyber Shield; specify the types and the number of response services required for the EU Cybersecurity Reserve; and, specify further the detailed arrangements for allocating the EU Cybersecurity Reserve support services. Those powers should be exercised in accordance with Regulation (EU) 182/2011 of the European Parliament and of the Council.
(39)The objective of this Regulation can be better achieved at Union level than by the Member States. Hence, the Union may adopt measures, in accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty on European Union. This Regulation does not go beyond what is necessary in order to achieve that objective.