The final text of the Critical Entities Resilience Directive (CER)

Preamble 11 to 20

(11) This Directive does not affect the competence of Member States and their authorities in terms of administrative autonomy or their responsibility for safeguarding national security and defence or their power to safeguard other essential State functions, in particular concerning public security, territorial integrity and the maintenance of law and order.

The exclusion of public administration entities from the scope of this Directive should apply to entities whose activities are predominantly carried out in the areas of national security, public security, defence or law enforcement, including the investigation, detection and prosecution of criminal offences. However, public administration entities whose activities are only marginally related to those areas should fall within the scope of this Directive.

For the purposes of this Directive, entities with regulatory competences are not considered to be carrying out activities in the area of law enforcement and are therefore not excluded on that ground from the scope of this Directive. Public administration entities that are jointly established with a third country in accordance with an international agreement are excluded from the scope of this Directive. This Directive does not apply to Member States’ diplomatic and consular missions in third countries.

Certain critical entities carry out activities in the areas of national security, public security, defence or law enforcement, including the investigation, detection and prosecution of criminal offences, or provide services exclusively to public administration entities that carry out activities predominantly in those areas.

In light of the Member States’ responsibility for safeguarding national security and defence, Member States should be able to decide that the obligations on critical entities laid down in this Directive do not apply, in whole or in part, to those critical entities if the services they provide or the activities they perform are predominantly related to the areas of national security, public security, defence or law enforcement, including the investigation, detection and prosecution of criminal offences.

Critical entities whose services or activities are only marginally related to those areas should fall within the scope of this Directive. No Member State should be required to supply information the disclosure of which would be contrary to the essential interests of its national security. Union or national rules for the protection of classified information and non-disclosure agreements are of relevance.

(12) In order not to jeopardise national security or the security and commercial interests of critical entities, sensitive information should be accessed, exchanged and handled prudently and with particular attention to the transmission channels and storage capacities used.

(13) With a view to ensuring a comprehensive approach to the resilience of critical entities, each Member State should have in place a strategy for enhancing the resilience of critical entities (the ‘strategy’). The strategy should set out the strategic objectives and policy measures to be implemented. In the interests of coherence and efficiency, the strategy should be designed to seamlessly integrate existing policies, building, wherever possible, upon relevant existing national and sectoral strategies, plans or similar documents.

In order to achieve a comprehensive approach, Member States should ensure that their strategies provide for a policy framework for enhanced coordination between the competent authorities under this Directive and the competent authorities under Directive (EU) 2022/2555 in the context of information sharing on cybersecurity risks, cyber threats and cyber incidents and non-cyber risks, threats and incidents and in the context of the exercise of supervisory tasks. When putting in place their strategies, Member States should take due account of the hybrid nature of threats to critical entities.

(14) Member States should communicate their strategies and substantial updates thereto to the Commission, in particular to enable the Commission to assess the correct application of this Directive as regards policy approaches to the resilience of critical entities at national level. Where necessary, the strategies could be communicated as classified information. The Commission should draw up a summary report of the strategies communicated by Member States to serve as a basis for exchanges to identify best practices and issues of common interest in the framework of a Critical Entities Resilience Group.

Due to the sensitive nature of the aggregated information included in the summary report, whether classified or not, the Commission should manage the summary report with the appropriate level of awareness with respect for the security of critical entities, Member States and the Union. The summary report and the strategies should be safeguarded against unlawful or malicious action and should be accessible only to authorised persons in order to fulfil the objectives of this Directive. The communication of the strategies and substantial updates thereto should also help the Commission to understand developments in approaches to the resilience of critical entities and feed into the monitoring of the impact and added value of this Directive, which the Commission is to review periodically.

(15) The actions of Member States to identify and help ensure the resilience of critical entities should follow a risk-based approach that focuses on the entities most relevant for the performance of vital societal functions or economic activities. In order to ensure such a targeted approach, each Member State should carry out, within a harmonised framework, an assessment of the relevant natural and man-made risks, including those of a cross-sectoral or cross-border nature, that could affect the provision of essential services, including accidents, natural disasters, public health emergencies such as pandemics and hybrid threats or other antagonistic threats, including terrorist offences, criminal infiltration and sabotage (‘Member State risk assessment’).

When carrying out Member State risk assessments, Member States should take into account other general or sector-specific risk assessments carried out pursuant to other Union legal acts and should consider the extent to which sectors depend on one another, including on sectors in other Member States and third countries. The outcome of Member State risk assessments should be used for the purposes of identifying critical entities and assisting those entities in meeting their resilience requirements.

This Directive applies only to Member States and critical entities that operate within the Union. Nevertheless, the expertise and knowledge generated by competent authorities, in particular through risk assessments, and by the Commission, in particular through various forms of support and cooperation, could be used, where appropriate and in accordance with the applicable legal instruments, for the benefit of third countries, in particular those in the direct neighbourhood of the Union, by feeding into existing cooperation on resilience.

(16) In order to ensure that all relevant entities are subject to the resilience requirements of this Directive and to reduce divergences in that respect, it is important to lay down harmonised rules allowing for a consistent identification of critical entities across the Union, while also allowing Member States to adequately reflect the role and importance of those entities at national level.

When applying the criteria laid down in this Directive, each Member State should identify entities that provide one or more essential services and that operate and have critical infrastructure located on its territory. An entity should be considered to operate on the territory of a Member State in which it carries out activities necessary for the essential service or services in question and in which that entity’s critical infrastructure, which is used to provide that service or those services, is located. Where no entity meets those criteria in a Member State, that Member State should be under no obligation to identify a critical entity in the corresponding sector or subsector. In the interests of effectiveness, efficiency, consistency and legal certainty, appropriate rules should be established as regards notifying entities that they have been identified as critical entities.

(17) Member States should submit to the Commission, in a manner that fulfils the objectives of this Directive, a list of essential services, the number of critical entities identified for each of the sectors and subsectors set out in the Annex and for the essential service or services that each entity provides and, if applied, thresholds. It should be possible to present thresholds as such or in aggregated form, meaning that the information can be averaged by geographic area, by year, by sector, by subsector or by other means, and can include information on the range of the indicators provided.

(18) Criteria should be established to determine the significance of a disruptive effect produced by an incident. Those criteria should build on the criteria set out in Directive (EU) 2016/1148 of the European Parliament and of the Council in order to capitalise on the efforts carried out by Member States to identify operators of essential services as defined in that Directive and the experience gained in that regard.

Major crises, such as the COVID-19 pandemic, have shown the importance of ensuring the security of the supply chain and have demonstrated how its disruption can have a negative economic and societal impact across a large number of sectors and across borders. Therefore, Member States should also consider effects on the supply chain, to the extent possible, when determining the extent to which other sectors and subsectors depend on the essential service provided by a critical entity.

(19) In accordance with applicable Union and national law, including Regulation (EU) 2019/452 of the European Parliament and of the Council, which establishes a framework for the screening of foreign direct investments in the Union, the potential threat posed by foreign ownership of critical infrastructure within the Union is to be acknowledged because services, the economy and the free movement and safety of Union citizens depend on the proper functioning of critical infrastructure.

(20) Directive (EU) 2022/2555 requires entities belonging to the digital infrastructure sector, which might be identified as critical entities under this Directive, to take appropriate and proportionate technical, operational and organisational measures to manage the risks posed to the security of network and information systems and to notify significant incidents and cyber threats. Since threats to the security of network and information systems can have different origins, Directive (EU) 2022/2555 applies an all-hazards approach that includes the resilience of network and information systems, as well as the physical components and environment of those systems.

Given that the requirements laid down in Directive (EU) 2022/2555 in that regard are at least equivalent to the corresponding obligations laid down in this Directive, the obligations laid down in Article 11 and Chapters III, IV and VI of this Directive should not apply to entities belonging to the digital infrastructure sector in order to avoid duplication and unnecessary administrative burden.

However, considering the importance of the services provided by entities belonging to the digital infrastructure sector to critical entities belonging to all other sectors, Member States should identify, based on the criteria and using the procedure provided for in this Directive, entities belonging to the digital infrastructure sector as critical entities. Consequently, the strategies, the Member State risk assessments and the support measures set out in Chapter II of this Directive should apply. Member States should be able to adopt or maintain provisions of national law to achieve a higher level of resilience for those critical entities, provided that those provisions are consistent with applicable Union law.