Member States are required by the Directive to provide to the Commission. Availability of
such lists would facilitate and result in better quality of the Commission assessment of the
consistency of identification process as well as would allow making comparison of
approaches between the Member States, thus leading to a better achievement of the objectives
of the Directive.
4.1.6. How to carry out the identification process?
As Figure 4 shows, there are six key questions that a national authority should examine when
carrying out the identification process concerning a particular entity. In the following
paragraph each question corresponds to a step to be undertaken in accordance with Article 5
in conjunction with Article 6, and also taking into account the applicability of Article 1(7).
Step 1 – Does the entity belong to a sector/subsector & correspond to the type covered by
Annex II of the Directive?
A national authority should assess whether an entity established in its territory belongs to the
sectors and subsectors listed in Annex II of the Directive. Annex II covers various economic
sectors that are considered instrumental to ensure the proper functioning of the internal
market. In particular, Annex II refers to the following sectors and subsectors:
Energy: electricity, oil and gas
Transport: air, rail, water and road
Banking: credit institutions
Financial market infrastructures: trading venues, central counterparties
Health: healthcare providers (including hospitals and private clinics)
Water: drinking water supply and distribution
Digital infrastructure: internet exchange points, domain name system service
providers, top level domain name registries28
Step 2 – Is a lex specialis applicable?
As a next step, the national authority needs to assess whether the provision of lex specialis
enshrined in Article 1(7) applies. In particular, the provision states that if there is an EU legal
act imposing security and/or notifications requirements to digital service providers or
operators of essential services which are at least equivalent to the corresponding requirements
under the NIS Directive, the obligations under the special legal act should apply. Furthermore,
recital 9 clarifies that if the requirements of Article 1(7) are fulfilled, Member States should
apply the provisions of the EU sector-specific act including those relating to jurisdiction. A
contrario, the relevant provisions of the NIS Directive would not apply. In this case, the
competent authority should not continue with the identification process under Article 5(2).29
28
29
These entities are further explained in Section 4.1.1.
More details on the applicability of lex specialis are provided in section 5.1
25
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