Digital Operational Resilience Act Articles (Proposal)

The Articles (Proposal) of the Digital Operational Resilience Act

Digital Operational Resilience Act (DORA), Preamble 61 to 73.

(61) To ensure that ICT third-party service providers fulfilling a critical role to the functioning of the financial sector are commensurately overseen on a Union scale, one of the ESAs should be designated as Lead Overseer for each critical ICT third-party service provider.

(62) Lead Overseers should enjoy the necessary powers to conduct investigations, onsite and offsite inspections at critical ICT third-party service providers, access all relevant premises and locations and obtain complete and updated information to enable them to acquire real insight into the type, dimension and impact of the ICT third-party risk posed to the financial entities and ultimately to the Union’s financial system.

Entrusting the ESAs with the lead oversight is a prerequisite for grasping and addressing the systemic dimension of ICT risk in finance. The Union footprint of critical ICT third-party service providers and the potential issues of ICT concentration risk attached to it call for taking a collective approach exercised at Union level. The exercise of multiple audits and access rights, conducted by numerous competent authorities in separation with little or no coordination would not lead to a complete overview on ICT third-party risk while creating unnecessary redundancy, burden and complexity at the level of critical ICT third-party providers facing such numerous requests.

(63) In addition, Lead Overseers should be able to submit recommendations on ICT risk matters and suitable remedies, including opposing certain contractual arrangements ultimately affecting the stability of the financial entity or the financial system. Compliance with such substantive recommendations laid down by the Lead Overseers should be duly taken into account by national competent authorities as part of their function relating to the prudential supervision of financial entities.

(64) The Oversight Framework shall not replace, or in any way nor for any part substitute the management by financial entities of the risk entailed by the use of ICT third-party service providers, including the obligation of ongoing monitoring of their contractual arrangements concluded with critical ICT third-party service providers, and shall not affect the full responsibility of the financial entities in complying with, and discharging of, all requirements under this Regulation and relevant financial services legislation. To avoid duplications and overlaps, competent authorities should refrain from individually taking any measures aimed at monitoring the critical ICT third-party service provider’s risks Any such measures should be previously coordinated and agreed in in the context of the Oversight Framework.

(65) To promote convergence at international level on best practices to be used in the review of ICT third-party service providers’ digital risk-management, the ESAs should be encouraged to conclude cooperation arrangements with the relevant supervisory and regulatory third-country competent authorities to facilitate the development of best practices addressing ICT third-party risk.

(66) To leverage technical expertise of competent authorities’ experts on operational and ICT risk management, Lead Overseers should draw on national supervisory experience and set up dedicated examination teams for each individual critical ICT third-party service provider, pooling together multidisciplinary teams to supporting both the preparation and the actual execution of oversight activities, including onsite inspections of critical ICT third-party service providers, as well as needed follow-up thereof.

(67) Competent authorities should possess all necessary supervisory, investigative and sanctioning powers to ensure the application of this Regulation. Administrative penalties should, in principle, be published. Since financial entities and ICT third-party service providers can be established in different Member States and supervised by different sectoral competent authorities, close cooperation between the relevant competent authorities, including ECB with regard to specific tasks conferred on it by Council Regulation (EU) No 1024/2013, and consultation with the ESAs should be ensured by the mutual exchange of information and provision of assistance in the context of supervisory activities.

(68) In order to further quantify and qualify the designation criteria for critical ICT third-party service providers and to harmonise oversight fees, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of: further specifying the systemic impact that a failure of an ICT third-party provider could have on the financial entities it serves, the numbers of global systemically important institutions (G-SIIs) or other systemically important institutions (O-SIIs) that rely on the respective ICT third-party service provider, the number of ICT third-party service providers active on a specific market, the costs of migrating to another ICT third-party service provider, the number of Member States in which the relevant ICT third-party service provider provides services and in which financial entities using the relevant ICT third-party service provider are operating, as well as the amount of the oversight fees and the way in which they are to be paid.

It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(69) Since this Regulation, together with Directive (EU) 20xx/xx of the European Parliament and of the Council, 41 entails a consolidation of the ICT risk management provisions spanning across multiple regulations and directives of the Union’s financial services acquis, including Regulations (EC) No 1060/2009, (EU) No 648/2012 (EU) No 600/2014 and (EU) No 909/2014, in order to ensure full consistency, those Regulations should be amended to clarify that the relevant ICT risk-related provisions are laid down in this Regulation.

Technical standards should ensure the consistent harmonisation of the requirements laid down in this Regulation. As bodies with highly specialised expertise, the ESAs should be mandated to develop draft regulatory technical standards which do not involve policy choices, for submission to the Commission. Regulatory technical standards should be developed in the areas of ICT risk management, reporting, testing and key requirements for a sound monitoring of ICT third-party risk.

(70) It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level. The Commission and the ESAs should ensure that those standards and requirements can be applied by all financial entities in a manner that is proportionate to the nature, scale and complexity of those entities and their activities.

(71) To facilitate the comparability of major ICT-related incident reports and to ensure transparency on contractual arrangements for the use of ICT services provided by ICT third-party service providers, the ESAs should be mandated to develop draft implementing technical standards establishing standardised templates, forms and procedures for financial entities to report a major ICT-related incident, as well as standardized templates for the register of information. When developing those standards, the ESAs should take into account the size and complexity of financial entities, as well as the nature and level of risk of their activities. The Commission should be empowered to adopt those implementing technical standards by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulations (EU) No 1093/2010, (EU) No 1094/2010 and (EU) No 1095/2010, respectively. Since further requirements have already been specified through delegated and implementing acts based on technical regulatory and implementing technical standards in Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014, respectively, it is appropriate to mandate the ESAs, either individually or jointly through the Joint Committee, to submit regulatory and implementing technical standards to the Commission for adoption of delegated and implementing acts carrying over and updating existing ICT risk management rules.

(72) This exercise will entail the subsequent amendment of existing delegated and implementing acts adopted in different areas of the financial services legislation. The scope of the operational risk articles upon which empowerments in those acts had mandated the adoption of delegated and implementing acts should be modified with a view to carry over into this Regulation all provisions covering digital operational resilience which are today part of those Regulations.

(73) Since the objectives of this Regulation, namely to achieve a high level of digital operational resilience applicable to all financial entities, cannot be sufficiently achieved by the Member States because they require the harmonisation of a multitude of different rules, currently existing either in some Union acts, either in the legal systems of the various Member States, but can rather, because of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.