Digital Operational Resilience Act Articles (Proposal)

The Articles (Proposal) of the Digital Operational Resilience Act

Digital Operational Resilience Act (DORA), Preamble 41 to 50.

(41) While this Regulation allows financial entities to determine recovery time objectives in a flexible manner and hence set such objectives by fully taking into account the nature and the criticality of the relevant function and any specific business needs, an assessment on the potential overall impact on market efficiency should also be required when determining such objectives.

(42) The significant consequences of cyber-attacks are amplified when occurring in the financial sector, an area much more at risk of being the target of malicious propagators pursuing financial gains directly at the source. To mitigate such risks and to prevent ICT systems losing integrity or becoming unavailable and confidential data being breached or physical ICT infrastructure suffering damage, the reporting of major ICT-related incidents by financial entities should be significantly improved.

ICT-related incident reporting should be harmonised for all financial entities by requiring them to report to their competent authorities only. While all financial entities would be subject to this reporting, not all of them should be affected in the same manner, since relevant materiality thresholds and time frames should be calibrated to only capture major ICT-related incidents. Direct reporting would enable financial supervisors’ access to information on ICT-related incidents. Nevertheless, financial supervisors should pass on this information to non-financial public authorities (NIS competent authorities, national data protection authorities and law enforcement authorities for incidents of criminal nature). The ICT-related incident information should be mutually channelled: financial supervisors should provide all necessary feedback or guidance to the financial entity while the ESAs should share anonymised data on threats and vulnerabilities relating to an event to aid wider collective defence.

(43) Further reflection on the possible centralisation of ICT-related incident reports should be envisaged, by means of a single central EU Hub either directly receiving the relevant reports and automatically notifying national competent authorities, or merely centralising reports forwarded by the national competent authorities and fulfilling a coordination role. The ESAs should be required to prepare, in consultation with ECB and ENISA, by a certain date a joint report exploring the feasibility of setting up such a central EU Hub.

(44) In order to achieve robust digital operational resilience, and in line with international standards (e.g. the G7 Fundamental Elements for Threat-Led Penetration Testing, financial entities should regularly test their ICT systems and staff with regard to the effectiveness of their preventive, detection, response and recovery capabilities, to uncover and address potential ICT vulnerabilities. To respond to differences across and within the financial subsectors regarding the financial entities’ cybersecurity preparedness, testing should include a wide variety of tools and actions, ranging from an assessment of basic requirements (e.g. vulnerability assessments and scans, open source analyses, network security assessments, gap analyses, physical security reviews, questionnaires and scanning software solutions, source code reviews where feasible, scenario-based tests, compatibility testing, performance testing or end-to-end testing) to more advanced testing (e.g. TLPT for those financial entities mature enough from an ICT perspective to be capable of carrying out such tests). Digital operational resilience testing should thus be more demanding for significant financial entities (such as large credit institutions, stock exchanges, central securities depositories, central counterparties, etc.). At the same time, digital operational resilience testing should also be more relevant for some subsectors playing a core systemic role (e.g. payments, banking, clearing and settlement), and less relevant for other subsectors (e.g. asset managers, credit rating agencies, etc.). Cross-border financial entities exercising their freedom of establishment or provision of services within the Union should comply with a single set of advanced testing requirements (e.g. TLPT) in their home Member State, and that test should include the ICT infrastructures in all jurisdictions where the cross-border group operates within the Union, thus allowing cross-border groups to incur testing costs in one jurisdiction only.

(45) To ensure a sound monitoring of ICT third-party risk, it is necessary to lay down a set of principle-based rules to guide financial entities’ monitoring of risk arising in the context of outsourced functions to ICT third-party services providers and, more generally, in the context of ICT third-party dependencies.

(46) A financial entity should at all times remain fully responsible for complying with obligations under this Regulation. A proportionate monitoring of risk emerging at the level of the ICT third-party service provider should be organised by duly considering the scale, complexity and importance of ICT-related dependencies, the criticality or importance of the services, processes or functions subject to the contractual arrangements and, ultimately, on the basis of a careful assessment of any potential impact on the continuity and quality of financial services at individual and at group level, as appropriate.

(47) The conduct of such monitoring should follow a strategic approach to ICT third-party risk formalised through the adoption by the financial entity’s management body of a dedicated strategy, rooted in a continuous screening of all such ICT third-party dependencies. To enhance supervisory awareness over ICT third-party dependencies, and with a view to further support the Oversight Framework established by this Regulation, financial supervisors should regularly receive essential information from the Registers and should be able to request extracts thereof on an ad-hoc basis.

(48) A thorough pre-contracting analysis should underpin and precede the formal conclusion of contractual arrangements, while termination of contracts should be prompted by at least a set of circumstances that show shortfalls at the ICT third-party service provider.

(49) To address the systemic impact of ICT third-party concentration risk, a balanced solution through a flexible and gradual approach should be promoted since rigid caps or strict limitations may hinder business conduct and contractual freedom. Financial entities should thoroughly assess contractual arrangements to identify the likelihood for such risk to emerge, including by means of in-depth analyses of sub-outsourcing arrangements, notably when concluded with ICT third-party service providers established in a third country. At this stage, and with a view to strike a fair balance between the imperative of preserving contractual freedom and that of guaranteeing financial stability, it is not considered appropriate to provide for strict caps and limits to ICT third-party exposures. The ESA designated to conduct the oversight for each critical ICT third-party provider (“the Lead Overseer”) should in the exercise of oversight tasks pay particular attention to fully grasp the magnitude of interdependences and discover specific instances where a high degree of concentration of critical ICT third-party service providers in the Union is likely to put a strain on the Union financial system’s stability and integrity and should provide instead for a dialogue with critical ICT third-party service providers where that risk is identified.

(50) To be able to evaluate and monitor on a regular basis the ability of the ICT third-party service provider to securely provide services to the financial entity without adverse effects on the latter’s resilience, there should be a harmonisation of key contractual elements throughout the performance of contracts with ICT third-party providers. Those elements only cover minimum contractual aspects considered crucial for enabling full monitoring by the financial entity from the perspective of ensuring its digital resilience reliant on the stability and security of the ICT service.