BAKGRUNN (fra kommisjonsforordningen)

(1) Regulation (EU) 2022/2554 covers a wide variety of financial entities that differ in size, structure, internal organisation, and in the nature and complexity of their activities, and thus have increased or reduced elements of complexity or risks. To ensure that that variety is duly taken into account, any requirements as regards ICT security policies, procedures, protocols and tools, and as regards a simplified ICT risk management framework, should be proportionate to that size, structure, internal organisation, nature and complexity of those financial entities, and to the corresponding risks. 

(2) For the same reason, financial entities subject to Regulation (EU) 2022/2554 should have a certain flexibility in the way they comply with any requirements as regards ICT security policies, procedures, protocols and tools, and as regards any simplified ICT risk management framework. For that reason, financial entities should be allowed to use any documentation they have already to comply with any documentation requirements that flow from those requirements. It follows that the development, documentation, and implementation of specific ICT security policies should be required only for certain essential elements, taking into account, inter alia, leading industry practices and standards. Furthermore, to cover specific technical implementation aspects, it is necessary to develop, document and implement ICT security procedures to cover specific technical implementation aspects, including capacity and performance management, vulnerability and patch management, data and system security, and logging. 

(3) To ensure the correct implementation over time of ICT security policies, procedures, protocols, and tools referred to in Title II, Chapter I of this Regulation, it is important that financial entities correctly assign and maintain any roles and responsibilities relating to ICT security, and that they lay down the consequences of non-compliance with ICT security policies or procedures. 

(4) To limit the risk of conflicts of interests, financial entities should ensure the segregation of duties when assigning ICT roles and responsibilities. 

(5) To ensure flexibility and to simplify the financial entities’ control framework, financial entities should not be required to develop specific provisions on the consequences of non-compliance with ICT security policies, procedures and protocols referred to in Title II, Chapter I of this Regulation where such provisions are already set out in another policy or procedure. 

(6) In a dynamic environment where ICT risks constantly evolve, it is important that financial entities develop their set of ICT security policies on the basis of leading practices, and where applicable, of standards as defined in Article 2, point (1), of Regulation (EU) No 1025/2012 of the European Parliament and of the Council3 .This should enable financial entities referred to in Title II of this Regulation to remain informed and prepared in a changing landscape. 

(7) To ensure their digital operational resilience, financial entities referred to in Title II of this Regulation should, as part of their ICT security policies, procedures, protocols, and tools, develop and implement an ICT asset management policy, capacity and performance management procedures, and policies and procedures for ICT operations. Those policies and procedures are necessary to ensure the monitoring of the status of ICT assets throughout their lifecycles, so that those assets are used and maintained effectively (ICT asset management). Those policies and procedures should also ensure the optimisation of ICT systems’ operation and that the ICT systems’ and capacity’s performance meets the established business and information security objectives (capacity and performance management). Lastly, those policies and procedures should ensure the effective and smooth day-to-day management and operation of ICT systems (ICT operations), thereby minimising the risk of loss of confidentiality, integrity, and availability of data. Those policies and procedures are thus necessary to ensure the security of networks, to provide for adequate safeguards against intrusions and data misuse, and to preserve the availability, authenticity, integrity, and confidentiality of data. 

(8) To ensure a proper management of the legacy ICT systems risk, financial entities should record and monitor end-dates of ICT third party support services. Because of the potential impact that a loss of confidentiality, integrity and availability of data may have, financial entities should focus on those ICT assets or systems that are critical for business operation when recording and monitoring those end-dates. 

(9) Cryptographic controls can ensure the availability, authenticity, integrity, and confidentiality of data. Financial entities referred to in Title II of this Regulation should therefore identify and implement such controls on the basis of a risk-based approach. To that end, financial entities should encrypt the data concerned at rest, in transit or, where necessary, in use, on the basis of the results of a two-pronged process, namely data classification and a comprehensive ICT risk assessment. Given the complexity of encrypting data in use, financial entities referred to in Title II of this Regulation should encrypt date in use only where that would be appropriate in light of the results of the ICT risk assessment. Financial entities referred to in Title II of this Regulation should, however, be able, where encryption of data in use is not feasible or is too complex, to protect the confidentiality, integrity, and availability of the data concerned through other ICT security measures. Given the rapid technological developments in the field of cryptographic techniques, financial entities referred to in Title II of this Regulation should remain abreast of relevant developments in cryptanalysis and consider leading practices and standards. Financial entities referred to in Title II of this Regulation should hence follow a flexible approach, based on risk mitigation and monitoring, to deal with the dynamic landscape of cryptographic threats, including threats from quantum advancements. 

(10) ICT operations security and operational policies, procedures, protocols, and tools are essential to ensure the confidentiality, integrity, and availability of data. One pivotal aspect is the strict separation of ICT production environments from the environments where ICT systems are developed and tested or from other non-production environments. That separation should serve as an important ICT security measure against unintended and unauthorised access to, modifications of, and deletions of data in the production environment, which could result in major disruptions in the business operations of financial entities referred to in Title II of this Regulation. However, considering current ICT system development practices, in exceptional circumstances, financial entities should be allowed to test in production environments, provided that they justify such testing and obtain the required approval. 

(11) The fast-evolving nature of ICT landscapes, ICT vulnerabilities and cyber threats necessitates a proactive and comprehensive approach to identifying, evaluating, and addressing ICT vulnerabilities. Without such an approach, financial entities, their customers, users, or counterparties may be severely exposed to risks, which would put at risk their digital operational resilience, the security of their networks, and the availability, authenticity, integrity, and confidentiality of data that ICT security policies and procedures should protect. Financial entities referred to in Title II of this Regulation should therefore identify and remedy vulnerabilities in their ICT environment, and both the financial entities and their ICT third-party service providers should adhere to a coherent, transparent, and responsible vulnerability management framework. For the same reason, financial entities should monitor ICT vulnerabilities using reliable resources and automated tools, verifying that ICT third-party service providers ensure prompt action on vulnerabilities in provided ICT services. 

(12) Patch management should be a crucial part of those ICT security policies and procedures that, through testing and deployment in a controlled environment, are to resolve identified vulnerabilities and to prevent disruptions from the installation of patches. 

(13) To ensure timely and transparent communication of potential security threats that could impact the financial entity and its stakeholders, financial entities should establish procedures for the responsible disclosure of ICT vulnerabilities to clients, counterparts, and the public. When establishing those procedures, financial entities should consider factors, including the severity of the vulnerability, the potential impact of such vulnerability on stakeholders, and the readiness of a fix or mitigation measures. 

(14) To allow for the assignment of user access rights, financial entities referred to in Title II of this Regulation should establish strong measures to ascertain the unique identification of individuals and systems that will access the financial entity’s information. A failure to do so would expose financial entities to potential unauthorised access, data breaches, and fraudulent activities, thus compromising the confidentiality, integrity, and availability of sensitive financial data. While the use of generic or shared accounts should exceptionally be permitted under circumstances specified by financial entities, financial entities should ensure that the accountability for actions taken through those accounts is maintained. Without that safeguard, potential malicious users would be able to hinder investigative and corrective measures, leaving financial entities vulnerable to undetected malicious activities or non-compliance penalties. 

(15) To manage the rapid advancement in ICT environments, financial entities referred to in Title II of this Regulation should implement robust ICT project management policies and procedures to maintain data availability, authenticity, integrity, and confidentiality. Those ICT project management policies and procedures should identify the elements that are necessary to successfully manage ICT projects, including changes to, acquisitions of, the maintenance of, and developments of the financial entity's ICT systems, regardless of the ICT project management methodology chosen by the financial entity. In the context of those policies and procedures, financial entities should adopt testing practices and methods that suit their needs, while adhering to a risk-based approach and ensuring that a secure, reliable, and resilient ICT environment is maintained. To guarantee the secure implementation of an ICT project, financial entities should ensure that staff from specific business sectors or roles influenced or impacted by that ICT project can provide the necessary information and expertise. To ensure effective oversight, reports on ICT projects, in particular about projects that affect critical or important functions and about their associated risks, should be submitted to the management body. Financial entities should tailor the frequency and details of the systematic and ongoing reviews and reports to the importance and the size of the ICT projects concerned. 

(16) It is necessary to ensure that software packages that financial entities referred to in Title II of this Regulation acquire and develop are effectively and securely integrated into the existing ICT environment, in accordance with established business and information security objectives. Financial entities should therefore thoroughly evaluate such software packages. For that purpose, and to identify vulnerabilities and potential security gaps within both software packages and the broader ICT systems, financial entities should carry out ICT security testing. To assess the integrity of the software and to ensure that the use of that software does not pose ICT security risks, financial entities should also review source codes of software acquired, including, where feasible, of proprietary software provided by ICT third-party service providers, using both static and dynamic testing methods. 

(17) Changes, regardless of their scale, carry inherent risks and may pose significant risks of loss of confidentiality, integrity, and availability of data, and could thus lead to severe business disruptions. To safeguard financial entities from potential ICT vulnerabilities and weaknesses that could expose them to significant risks, a rigorous verification process is necessary to confirm that all changes meet the necessary ICT security requirements. Financial entities referred to in Title II of this Regulation should therefore, as an essential element of their ICT security policies and procedures, have in place sound ICT change management policies and procedures. To uphold the objectivity and effectiveness of the ICT change management process, to prevent conflicts of interest, and to ensure that ICT changes are evaluated objectively, it is necessary to separate the functions responsible for approving those changes from the functions that request and implement those changes. To achieve effective transitions, controlled ICT change implementation, and minimal disruptions to the operation of the ICT systems, financial entities should assign clear roles and responsibilities that ensure that ICT changes are planned, adequately tested, and that quality is ensured. To ensure that ICT systems continue to operate effectively, and to provide a safety net for financial entities, financial entities should also develop and implement fall-back procedures. Financial entities should clearly identify those fall-back procedures and assign responsibilities to ensure a swift and effective response in the event of unsuccessful ICT changes. 

(18) To detect, manage, and report ICT-related incidents, financial entities referred to in Title II of this Regulation should establish an ICT-related incident policy encompassing the components of an ICT-related incident management process. For that purpose, financial entities should identify all relevant contacts inside and outside the organisation that can facilitate the correct coordination and implementation of the different phases within that process. To optimise the detection of, and response to, ICT-related incidents, and to identify trends among those incidents, which are a valuable source of information enabling financial entities to identify and address root causes and problems in an effective manner, financial entities should in particular analyse in detail the ICT-related incidents that they consider to be most significant, inter alia because of their regular reoccurrence. 

(19) To guarantee an early and effective detection of anomalous activities, financial entities referred to in Title II of this Regulation should collect, monitor, and analyse the different sources of information and should allocate related roles and responsibilities. As regards internal sources of information, logs are an extremely relevant source, but financial entities should not rely on logs alone. Instead, financial entities should consider broader information to include what is reported by other internal functions, as those functions are often a valuable source of relevant information. For the same reason, financial entities should analyse and monitor information gathered from external sources, including information provided by ICT third-party providers on incidents affecting their systems and networks, and other sources of information that financial entities consider relevant. In so far as such information constitutes personal data, the Union data protection law applies. The personal data should be limited to what is necessary for the incident detection. 

(20) To facilitate ICT-related incidents detection, financial entities should retain evidence of those incidents. To ensure, on the one hand, that such evidence is retained sufficiently long and to avoid, on the other hand, an excessive regulatory burden, financial entities should determine the retention period considering, among other things, the criticality of the data and retention requirements stemming from Union law. 

(21) To ensure that ICT-related incidents are detected in time, financial entities referred to in Title II of this Regulation should consider the criteria identified for triggering the detection of and responses to ICT-related incidents as not exhaustive. Moreover, while financial entities should consider each of those criteria, the circumstances described in the criteria should not need to occur simultaneously and the importance of the affected ICT services should be appropriately considered to trigger ICT-related incident detection and response processes. 

(22) When developing an ICT business continuity policy, financial entities referred to in Title II of this Regulation should take into account the essential components of ICT risk management, including ICT-related incident management and communication strategies, the ICT change management process, and risks associated with ICT thirdparty service providers. 

(23) It is necessary to set out the set of scenarios that financial entities referred to in Title II of this Regulation should take into account both for the implementation of ICT response and recovery plans and for the testing of ICT business continuity plans. Those scenarios should serve as a starting point for financial entities to analyse both the relevance and plausibility of each scenario and the need to develop alternative scenarios. Financial entities should focus on those scenarios in which investment in resilience measures could be more efficient and effective. By testing switchovers between the primary ICT infrastructure and any redundant capacity, backups and redundant facilities, financial institutions should assess whether that capacity, backup, and those facilities operate effectively for a sufficient period of time and ensure that the normal functioning of the primary ICT infrastructure is restored in accordance with the recovery objectives. 

(24) It is necessary to lay down requirements for operational risk, and more particularly requirements for ICT project and change management and ICT business continuity management building on those that apply already to central counterparties, central securities depositories and trading venues under, respectively, Regulations (EU) No 648/2012 , (EU) No 600/2014 and (EU) No 909/2014 of the European Parliament and of the Council. 

(25) Article 6(5) of Regulation (EU) 2022/2554 requires financial entities to review their ICT risk management framework and to provide their competent authority with a report on that review. To enable competent authorities to easily process the information in those reports, and to guarantee an adequate transmission of that information, financial entities should submit those reports in a searchable electronic format. 

(26) The requirements for financial entities that are subject to the simplified ICT risk management framework referred to in Article 16 of Regulation (EU) 2022/2554 should be focused on those essential areas and elements that, in light of the scale, risk, size, and complexity of those financial entities, are as a minimum necessary to ensure the confidentiality, integrity, availability, and authenticity of the data and services of those financial entities. In that context, those financial entities should have in place an internal governance and control framework with clear responsibilities to enable an effective and sound risk management framework. Furthermore, to reduce the administrative and operational burden, those financial entities should develop and document only one policy, that is an information security policy, that specifies the high-level principles and rules necessary to protect the confidentiality, integrity, availability, and authenticity of data and of the services of those financial entities. 

(27) The provisions of this Regulation relate to the area of the ICT risk management framework, by detailing specific elements applicable to the financial entities in accordance with Article 15 of Regulation (EU) 2022/2554 and by designing the simplified ICT risk management framework for the financial entities set out in Article 16(1) of that Regulation. To ensure coherence between the ordinary and the simplified ICT risk management framework, and considering that those provisions should become applicable at the same time, it is appropriate to include those provisions in a single legislative act. 

(28) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (European Supervisory Authorities), in consultation with the European Union Agency for Cybersecurity (ENISA). 

(29) The Joint Committee of the European Supervisory Authorities referred to in Article 54 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council, in Article 54 of Regulation (EU) No 1094/2010 of the European Parliament and of the Council and in Article 54 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential costs and benefits of the proposed standards and requested advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010, the Insurance and Reinsurance Stakeholder Group and the Occupational Pensions Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1094/2010, and the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010. 

(30) To the extent to which processing of personal data is required to comply with the obligations set out in this Act, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 should fully apply. For instance, the data minimisation principle should be complied with where personal data are collected to ensure an appropriate incident detection. The European Data Protection Supervisor has also been consulted on the draft text of this Act,