Digital Operational Resilience Act Articles (Proposal)

The Articles (Proposal) of the Digital Operational Resilience Act

Digital Operational Resilience Act (DORA), Preamble 31 to 40.

(31) In addition, hesitations about the type of information which can be shared with other market participants, or with non-supervisory authorities (such as ENISA, for analytical input, or Europol, for law enforcement purposes) lead to useful information being withheld. The extent and quality of information sharing remains limited, fragmented, with relevant exchanges being done mostly locally (via national initiatives) and with no consistent Union-wide information sharing arrangements tailored to the needs of an integrated financial sector.

(32) Financial entities should therefore be encouraged to collectively leverage their individual knowledge and practical experience at strategic, tactical and operational levels with a view to enhance their capabilities to adequately assess, monitor, defend against, and respond to, cyber threats. It is thus necessary to enable the emergence at Union level of mechanisms for voluntary information sharing arrangements which, when conducted in trusted environments, would help the financial community to prevent and collectively respond to threats by quickly limiting the spread of ICT risks and impeding potential contagion throughout the financial channels. Those mechanisms should be conducted in full compliance with the applicable competition law rules of the Union as well as in a way that guarantees the full respect of Union data protection rules, mainly Regulation (EU) 2016/679 of the European Parliament and of the Council, in particular in the context of the processing of personal data that is necessary for the purposes of the legitimate interest pursued by the controller or by a third party, as referred to in point (f) of Article 6(1) of that Regulation.

(33) Notwithstanding the broad coverage envisaged by this Regulation, the application of the digital operational resilience rules should take into consideration significant differences between financial entities in terms of size, business profiles or exposure to digital risk. As a general principle, when directing resources and capabilities to the implementation of the ICT risk management framework, financial entities should duly balance their ICT-related needs to their size and business profile, while competent authorities should continue to assess and review the approach of such distribution.

(34) As larger financial entities may enjoy wider resources and could swiftly deploy funds to develop governance structures and set up various corporate strategies, only financial entities which are not micro enterprises in the sense of this Regulation should be required to establish more complex governance arrangements. Such entities are better equipped in particular to set up dedicated management functions for supervising arrangements with ICT third-party service providers or for dealing with crisis management, to organise their ICT risk management according to the three lines of defence model, or to adopt a human resources document comprehensively explaining access rights policies.

By the same token, only such financial entities should be called to perform in-depth assessments after major changes in the network and information system infrastructures and processes, to regularly conduct risk analyses on legacy ICT systems, or expand the testing of business continuity and response and recovery plans to capture switchovers scenarios between primary ICT infrastructure and redundant facilities.

(35) Moreover, as solely those financial entities identified as significant for the purposes of the advanced digital resilience testing should be required to conduct threat led penetration tests, the administrative processes and financial costs entailed by the performance of such tests should be devolved to a small percentage of financial entities. Finally, with a view to ease regulatory burdens, only financial entities other than micro enterprises should be asked to regularly report to the competent authorities all costs and losses caused by ICT disruptions and the results of post-incident reviews after significant ICT disruptions.

(36) To ensure full alignment and overall consistency between financial entities’ business strategies, on the one hand, and the conduct of ICT risk management, on the other hand, the management body should be required to maintain a pivotal and active role in steering and adapting the ICT risk management framework and the overall digital resilience strategy. The approach to be taken by the management body should not only focus on the means to ensure the resilience of the ICT systems, but should also cover people and processes through a set of policies which cultivate, at each corporate layer, and for all staff, a strong sense of awareness over cyber risks and a commitment to respect a strict cyber hygiene at all levels.

The ultimate responsibility of the management body in managing a financial entity’s ICT risks should be an overarching principle of that comprehensive approach, further translated into the continuous engagement of the management body in the control of the monitoring of the ICT risk management.

(37) Moreover, the management body’s full accountability goes hand in hand with securing a level of ICT investments and overall budget for the financial entity to be able to achieve its digital operational resilience baseline.

(38) Inspired by relevant international, national and industry-set standards, guidelines, recommendations or approaches towards the management of cyber risk, this Regulation promotes a set of functions facilitating the overall structuring of the ICT risk management. As long as the main capabilities which financial entities put in place answer the needs of the objectives foreseen by the functions (identification, protection and prevention, detection, response and recovery, learning and evolving and communication) set out in this Regulation, financial entities remain free to use ICT risk management models that are differently framed or categorised.

(39) To keep pace with an evolving cyber threat landscape, financial entities should maintain updated ICT systems that are reliable and endowed with sufficient capacity not only to guarantee the processing of data as it is necessary for the performance of their services, but also to ensure technological resilience allowing financial entities to adequately deal with additional processing needs which stressed market conditions or other adverse situations may generate. While this Regulation does not entail any standardization of specific ICT systems, tools or technologies, it relies on the financial entities’ suitable use of European and internationally recognised technical standards (e.g. ISO) or industry best practices, insofar as such use is fully compliant with specific supervisory instructions on the use and incorporation of international standards.

(40) Efficient business continuity and recovery plans are required to allow financial entities to promptly and quickly resolve ICT-related incidents, in particular cyber-attacks, by limiting damage and giving priority to the resumption of activities and recovery actions. However, while backup systems should begin processing without undue delay, such start should in no way jeopardise the integrity and security of the network and information systems or the confidentiality of data.