Digital Operational Resilience Act Articles (Proposal)

The Articles (Proposal) of the Digital Operational Resilience Act

Digital Operational Resilience Act (DORA), Preamble 51 to 60.

(51) Contractual arrangements should in particular provide for a specification of complete descriptions of functions and services, of locations where such functions are provided and where data are processed, as well as an indication of full service level descriptions accompanied by quantitative and qualitative performance targets within agreed service levels to allow an effective monitoring by the financial entity. In the same vein, provisions on accessibility, availability, integrity, security and protection of personal data, as well as guarantees for access, recover and return in the case of insolvency, resolution or discontinuation of the business operations of the ICT third-party service provider should also be considered essential elements for a financial entity’s ability to ensure the monitoring of third party risk.

(52) To ensure that financial entities remain in full control of all developments which may impair their ICT security, notice periods and reporting obligations of the ICT third-party service provider should be set out in case of developments with a potential material impact on the ICT third-party service provider’s ability to effectively carry out critical or important functions, including the provision of assistance by the latter in case of an ICT-related incident at no additional cost or at a cost that is determined ex-ante.

(53) Rights of access, inspection and audit by the financial entity or an appointed third party are crucial instruments in the financial entities’ ongoing monitoring of the ICT third-party service provider’s performance, coupled with the latter’s full cooperation during inspections. In the same vein, the competent authority of the financial entity should have those rights, based on notices, to inspect and audit the ICT third-party service provider, subject to confidentiality.

(54) Contractual arrangements should provide for clear termination rights and related minimum notices as well as dedicated exit strategies enabling, in particular, mandatory transition periods during which the ICT third-party service providers should continue providing the relevant functions with a view to reduce the risk of disruptions at the level of the financial entity or allow the latter to effectively switch to other ICT third-party service providers, or alternatively resort to the use of on-premises solutions, consistent with the complexity of the provided service.

(55) Moreover, the voluntary use of standard contractual clauses developed by the Commission for cloud computing services may provide further comfort to the financial entities and their ICT third-party providers, by enhancing the level of legal certainty on the use of cloud computing services by the financial sector, in full alignment with requirements and expectations set out by the financial services regulation. This work builds on measures already envisaged in the 2018 Fintech Action Plan which announced Commission’s intention to encourage and facilitate the development of standard contractual clauses for the use of cloud computing services outsourcing by financial entities, drawing on cross-sectorial cloud computing services stakeholders efforts, which the Commission has facilitated with the help of the financial sector’s involvement.

(56) With a view to promote convergence and efficiency in relation to supervisory approaches to ICT third-party risk to the financial sector, strengthen the digital operational resilience of financial entities which rely on critical ICT third-party service providers for the performance of operational functions, and thus to contribute to preserving the Union’s financial system stability, the integrity of the single market for financial services, critical ICT third-party service providers should be subject to a Union Oversight Framework.

(57) Since only critical third-party service providers warrant a special treatment, a designation mechanism for the purposes of applying the Union Oversight Framework should be put in place to take into account the dimension and nature of the financial sector’s reliance on such ICT third-party service providers, which translates into a set of quantitative and qualitative criteria that would set the criticality parameters as a basis for inclusion into the Oversight. Critical ICT third-party service providers which are not automatically designated by virtue of the application of the above-mentioned criteria should have the possibility to voluntary opt-in to the Oversight Framework, while those ICT third-party providers already subject to oversight mechanisms frameworks established at Eurosystem level with the aim to supporting the tasks referred to in Article 127(2) of the Treaty on the Functioning of the European Union should consequently be exempted.

(58) The requirement of legal incorporation in the Union of ICT third-party service providers which have been designated as critical does not amount to data localisation since this Regulation does not entail any further requirement on data storage or processing to be undertaken in Union.

(59) This framework should be without prejudice to Member States’ competence to conduct own oversight missions in respect to ICT third-party service providers which are not critical under this Regulation but could be deemed important at national level.

(60) To leverage the current multi-layered institutional architecture in the financial services area, the Joint Committee of the ESAs should continue to ensure the overall cross-sectoral coordination in relation to all matters pertaining to ICT risk, in accordance with its tasks on cybersecurity, supported by a new Subcommittee (the Oversight Forum) carrying out preparatory work for both individual decisions addressed to critical ICT third-party service providers and collective recommendations, notably on benchmarking the oversight programs of critical ICT third-party service providers, and identifying best practices for addressing ICT concentration risk issues.