The EU Network and Information Security (NIS) Directive now looks likely to enter into force in August of this year.  Member States will then have 21 months to implement it into national law before the new security and incident notification obligations will start to apply to the following entities:

  • designated* “operators of essential services” within the energy, transport, banking, financial market infrastructures, health, drinking water supply and distribution, and digital infrastructure sectors; and
  • certain “digital service providers” that offer services within the EU, namely online market places, online search engines and cloud computing services, excluding small/micro enterprises.

* Once implemented in national law, Member States will have a further 6 months to apply criteria laid down in the Directive to identify specific operators of essential services covered by national rules; they do not need to undertake this exercise in relation to digital service providers, which shall be deemed to be under the jurisdiction of the Member State in which it has its “main establishment” (i.e., its head office in the Union).

Following the informal political agreement reached last December on the NIS Directive (see our report here), European legislators have been taking the final formal steps in recent months.  In January, a European Parliament committee voted in favour of the Directive (see out report here).  The Council confirmed the political agreement in late February and, following the lawyer linguist revision (i.e., to clean up the text), adopted its position in first reading on May 17.  The Council will now transmit its position to the European Parliament on May 25.  The European Parliament is expected to vote during its July 4 to July 7 plenary session, which will allow the Directive to enter into force in August.

According to recent information from the Presidency, the European Commission has already been making necessary steps to prepare ground for the implementation of the Directive.  A first informal meeting of the cooperation group — composed of representatives of Member States, the Commission, and the European Union Agency for Network and Information Security (“ENISA”) — is now foreseen to take place on June 14.

Companies that may fall within the scope of the new rules should monitor the implementation process in key Member States as well as guidance from national competent authorities and ENISA.