Article 31 General aspects concerning supervision and enforcement

Member States can assign the role of the competent authorities for trust services to the supervisory bodies under Regulation (EU) No 910/2014 in order to ensure the continuation of current practices and to build on the knowledge and experience gained in the application of that Regulation. In such a case, the competent authorities under this Directive should cooperate closely and in a timely manner with those supervisory bodies by exchanging relevant information in order to ensure effective supervision and compliance of trust service providers with the requirements laid down in this Directive and in Regulation (EU) No 910/2014. Where applicable, the CSIRT or the competent authority under this Directive should immediately inform the supervisory body under Regulation (EU) No 910/2014 about any notified significant cyber threat or incident affecting trust services as well as about any infringements by a trust service provider of this Directive. For the purpose of reporting, Member States can, where applicable, use the single entry point established to achieve a common and automatic incident reporting to both the supervisory body under Regulation (EU) No 910/2014 and the CSIRT or the competent authority under this Directive.

Personal data are in many cases compromised as a result of incidents. In that context, the competent authorities should cooperate and exchange information about all relevant matters with the authorities referred to in Regulation (EU) 2016/679 and Directive 2002/58/EC.

In order to strengthen the supervisory powers and measures that help ensure effective compliance, this Directive should provide for a minimum list of supervisory measures and means through which the competent authorities can supervise essential and important entities. In addition, this Directive should establish a differentiation of supervisory regime between essential and important entities with a view to ensuring a fair balance of obligations on those entities and on the competent authorities. Therefore, essential entities should be subject to a comprehensive ex ante and ex post supervisory regime, while important entities should be subject to a light, ex post only, supervisory regime. Important entities should therefore not be required to systematically document compliance with cybersecurity risk-management measures, while the competent authorities should implement a reactive ex post approach to supervision and, hence, not have a general obligation to supervise those entities. The ex post supervision of important entities may be triggered by evidence, indication or information brought to the attention of the competent authorities considered by those authorities to suggest potential infringements of this Directive. For example, such evidence, indication or information could be of the type provided to the competent authorities by other authorities, entities, citizens, media or other sources or publicly available information, or could emerge from other activities conducted by the competent authorities in the fulfilment of their tasks.

The execution of supervisory tasks by the competent authorities should not unnecessarily hamper the business activities of the entity concerned. Where the competent authorities execute their supervisory tasks in relation to essential entities, including the conduct of on-site inspections and off-site supervision, the investigation of infringements of this Directive and the conduct of security audits or security scans, they should minimise the impact on the business activities of the entity concerned.

In the exercise of ex ante supervision, the competent authorities should be able to decide on the prioritisation of the use of supervisory measures and means at their disposal in a proportionate manner. This entails that the competent authorities can decide on such prioritisation based on supervisory methodologies which should follow a risk-based approach. More specifically, such methodologies could include criteria or benchmarks for the classification of essential entities into risk categories and corresponding supervisory measures and means recommended per risk category, such as the use, frequency or types of on-site inspections, targeted security audits or security scans, the type of information to be requested and the level of detail of that information. Such supervisory methodologies could also be accompanied by work programmes and be assessed and reviewed on a regular basis, including on aspects such as resource allocation and needs. In relation to public administration entities, the supervisory powers should be exercised in line with the national legislative and institutional frameworks.

The competent authorities should ensure that their supervisory tasks in relation to essential and important entities are carried out by trained professionals, who should have the necessary skills to carry out those tasks, in particular with regard to conducting on-site inspections and off-site supervision, including the identification of weaknesses in databases, hardware, firewalls, encryption and networks. Those inspections and that supervision should be conducted in an objective manner.