effect on the security of network and information systems”. The term ‘security of network and
information systems’ is further defined under Article 4(2) as “the ability of network to resists,
at a given level of confidence, any action that compromises the availability, authenticity,
integrity or confidentiality of stored or transmitted or processed data or the related services
offered by, or accessible via, those network and information systems.” Consequently, any
event having an adverse effect not only on the availability but also on authenticity, integrity or
confidentiality of data or related services could potentially be able to trigger the notification
obligation. In fact, the continuity of the service as referred to in Article 14(3) can be
compromised not only in cases where the physical availability is concerned, but also by any
other security incident affecting the proper provision of the service33.
A dedicated work stream within the Cooperation Group is currently preparing non-binding
notification guidelines concerning the circumstances in which operators of essential services
are required to notify incidents pursuant to Article 14(7) and the format and procedure of
national notifications. The guidelines are intended to be finalised by Q4 of 2017.
Different national notification requirements may lead to legal uncertainty, more complex and
cumbersome procedures and significant administrative costs for providers operating crossborder. The Commission therefore welcomes the work of the Cooperation Group. As is the
case for security requirements, the Commission encourages Member States to follow closely
the guidance document to be developed by the Cooperation Group so that that national
provision on notification of incidents would be aligned to the extent possible.
4.4. NIS Directive, Annex III: Digital Service Providers.
The Digital Service Providers (DSPs) are the second category of entities included in the scope
of the NIS Directive. These entities are considered to be important economic players due to
the fact that they are used by many businesses for the provision of their own services, and a
disruption of the digital service could have an impact on the key economic and societal
activities.
4.4.1. Categories of DSPs.
Article 4(5) which defines digital service refers to the legal definition of point (b) of Article
1(1) of Directive (EU) 2015/1535 by narrowing the scope to the types of services listed in
Annex III. In particular, Article 1(1) point (b) of Directive (EU) 2015/1535 defines these
services as “any service normally provided for remuneration, at a distance, by electronic
means and at the individual request of a recipient of services” and Annex III of the Directive
lists three specific types of services: online market place, online search engine and cloud
computing service. In comparison to the operators of essential services, the Directive does not
require Member States to identify the digital service providers, which would then be subject
to the relevant obligations. Therefore, the relevant obligations of the Directive, namely the
security and notifications requirements set out in Article 16 will apply to all DSPs within its
scope.
33
The same applies to DSPs.
31
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