Article 8 Critical products with digital elements

By laying down cybersecurity requirements for placing on the market products with digital elements, it is intended that the cybersecurity of those products for consumers and businesses alike be enhanced. Those requirements will also ensure that cybersecurity is taken into account throughout supply chains, making final products with digital elements and their components more secure. This also includes requirements for placing on the market consumer products with digital elements intended for vulnerable consumers, such as toys and baby monitoring systems. Consumer products with digital elements categorised in this Regulation as important products with digital elements present a higher cybersecurity risk by performing a function which carries a significant risk of adverse effects in terms of its intensity and ability to damage the health, security or safety of users of such products, and should undergo a stricter conformity assessment procedure. This applies to such products as smart home products with security functionalities, including smart door locks, baby monitoring systems and alarm systems, connected toys and personal wearable health technology. Furthermore, the stricter conformity assessment procedures that other products with digital elements categorised in this Regulation as important or critical products with digital elements are required to undergo, will contribute to preventing potential negative impacts on consumers of the exploitation of vulnerabilities.

The categories of critical products with digital elements set out in this Regulation have a cybersecurity-related functionality and perform a function which carries a significant risk of adverse effects in terms of its intensity and ability to disrupt, control or cause damage to a large number of other products with digital elements through direct manipulation. Furthermore, those categories of products with digital elements are considered to be critical dependencies for essential entities as referred to in Article 3(1) of Directive (EU) 2022/2555. The categories of critical products with digital elements set out in an annex to this Regulation, due to their criticality, already widely use various forms of certification, and are also covered by the European Common Criteria-based cybersecurity certification scheme (EUCC) set out in Commission Implementing Regulation (EU) 2024/482(²⁰)Commission Implementing Regulation (EU) 2024/482 of 31 January 2024 laying down rules for the application of Regulation (EU) 2019/881 of the European Parliament and of the Council as regards the adoption of the European Common Criteria-based cybersecurity certification scheme (EUCC) (OJ L, 2024/482, 7.2.2024, ELI: http://data.europa.eu/eli/reg_impl/2024/482/oj).. Therefore, in order to ensure a common adequate cybersecurity protection of critical products with digital elements in the Union, it could be adequate and proportionate to subject such categories of product, by means of a delegated act, to mandatory European cybersecurity certification where a relevant European cybersecurity certification scheme covering those products is already in place and an assessment of the potential market impact of the envisaged mandatory certification has been carried out by the Commission. That assessment should consider both the supply and demand side, including whether there is sufficient demand for the products with digital elements concerned from both Member States and users for European cybersecurity certification to be required, as well as the purposes for which the products with digital elements are intended to be used, including the critical dependency on them by essential entities as referred to in Article 3(1) of Directive (EU) 2022/2555. The assessment should also analyse the potential effects of the mandatory certification on the availability of those products on the internal market and the capabilities and the readiness of the Member States for the implementation of the relevant European cybersecurity certification schemes.

Delegated acts requiring mandatory European cybersecurity certification should determine the products with digital elements that have the core functionality of a category of critical products with digital elements set out in this Regulation that are to be subject to mandatory certification, as well as the required assurance level, which should be at least ‘substantial’. The required assurance level should be proportionate to the level of cybersecurity risk associated with the product with digital elements. For instance, where the product with digital elements has the core functionality of a category of critical products with digital elements set out in this Regulation and is intended for the use in a sensitive or critical environment, such as products intended for the use of essential entities as referred to in Article 3(1) of Directive (EU) 2022/2555, it may require the highest assurance level.

In order to ensure a common adequate cybersecurity protection in the Union of products with digital elements that have the core functionality of a category of critical products with digital elements set out in this Regulation, the Commission should also be empowered to adopt delegated acts to amend this Regulation by adding or withdrawing categories of critical products with digital elements for which manufacturers could be required to obtain a European cybersecurity certificate under a European cybersecurity certification scheme pursuant to Regulation (EU) 2019/881 to demonstrate conformity with this Regulation. A new category of critical products with digital elements can be added to those categories if there is a critical dependency on them by essential entities as referred to in Article 3(1) of Directive (EU) 2022/2555 or, if affected by incidents or when containing exploited vulnerabilities, this could lead to disruptions of critical supply chains. When assessing the need for adding or withdrawing categories of critical products with digital elements by means of a delegated act, the Commission should be able to take into account whether the Member States have identified at national level products with digital elements that have a critical role for the resilience of essential entities as referred to in Article 3(1) of Directive (EU) 2022/2555 and which increasingly face supply chain cyberattacks, with potential serious disruptive effects. Furthermore, the Commission should be able to take into account the outcome of the Union level coordinated security risk assessment of critical supply chains carried out in accordance with Article 22 of Directive (EU) 2022/2555.

Regulation (EU) 2019/881 establishes a voluntary European cybersecurity certification framework for ICT products, ICT processes and ICT services. European cybersecurity certification schemes provide a common framework of trust for users to use products with digital elements that fall within the scope of this Regulation. This Regulation should consequently create synergies with Regulation (EU) 2019/881. In order to facilitate the assessment of conformity with the requirements laid down in this Regulation, products with digital elements that are certified or for which a statement of conformity has been issued under a European cybersecurity scheme pursuant to Regulation (EU) 2019/881 that has been identified by the Commission in an implementing act, shall be presumed to be in compliance with the essential cybersecurity requirements set out in this Regulation in so far as the European cybersecurity certificate or statement of conformity or parts thereof cover those requirements. The need for new European cybersecurity certification schemes for products with digital elements should be assessed in the light of this Regulation, including when preparing the Union rolling work programme in accordance with Regulation (EU) 2019/881. Where there is a need for a new scheme covering products with digital elements, including in order to facilitate compliance with this Regulation, the Commission can request ENISA to prepare candidate schemes in accordance with Article 48 of Regulation (EU) 2019/881. Such future European cybersecurity certification schemes covering products with digital elements should take into account the essential cybersecurity requirements and conformity assessment procedures as set out in this Regulation and facilitate compliance with this Regulation. For European cybersecurity certification schemes that enter into force before the entry into force of this Regulation, further specifications may be needed on detailed aspects of how a presumption of conformity can apply. The Commission, by means of delegated acts, should be empowered to specify under which conditions the European cybersecurity certification schemes can be used to demonstrate conformity with the essential cybersecurity requirements set out in this Regulation. Furthermore, to avoid undue administrative burdens, there should be no obligation for manufacturers to carry out a third-party conformity assessment as provided for in this Regulation for corresponding requirements where a European cybersecurity certificate has been issued under such European cybersecurity certification schemes at least at level ‘substantial’.