The Cyber Resi­li­ence Act EU Com­mis­si­on pro­po­sal published

New requi­re­ments for manu­fac­tu­r­ers of pro­ducts with digi­tal elements

With incre­asing digi­ti­sa­ti­on and the net­wor­king of pro­ducts, thre­ats from digi­tal space are also rising in equal mea­su­re: EU Com­mis­si­on Pre­si­dent von der Ley­en alre­a­dy noted last year during the Sta­te of the Uni­on Address that if ever­y­thing is net­work­ed, ever­y­thing can be hacked. In order to make the EU more resi­li­ent to cyber attacks, the EU Com­mis­si­on announ­ced a “Cyber Resi­li­ence Act” (CRA) last year and published a cor­re­spon­ding pro­po­sal today .

Tar­get group and obligations

In accordance with the EU Com­mis­si­on’s pre­sen­ta­ti­on, the new regu­la­ti­on is inten­ded to estab­lish duties for manu­fac­tu­r­ers of pro­ducts with digi­tal ele­ments and crea­te bin­ding cyber­se­cu­ri­ty requi­re­ments for them. In addi­ti­on to hard­ware pro­ducts, such as sen­sors and came­ras, smart cards, mobi­le devices or net­work devices such as rou­ters and swit­ches, soft­ware pro­ducts and asso­cia­ted ser­vices in par­ti­cu­lar are also to be cover­ed. Howe­ver, cer­tain pro­ducts, such as radio equip­ment or medi­cal devices, which are cover­ed by sector-specific legis­la­ti­on, are exempt from the requi­re­ments of the CRA.

Accor­ding to the pro­po­sal, manu­fac­tu­r­ers of pro­ducts that fall within the scope of the CRA must com­ply with the fol­lo­wing requi­re­ments, among others, in the future:

  1. Pro­ducts must meet basic cyber­se­cu­ri­ty requi­re­ments in terms of design, deve­lo­p­ment and manu­fac­tu­ring pro­ces­ses even befo­re they are laun­ched on the market.
  2. Manu­fac­tu­r­ers must moni­tor digi­tal pro­ducts throug­hout their life­cy­cle and address any vul­nerabi­li­ties through auto­ma­tic and free updates.
  3. In the event of an inci­dent that may affect the secu­ri­ty of the pro­duc­t’s hard­ware and/or soft­ware, manu­fac­tu­r­ers are requi­red to noti­fy the EU cyber­se­cu­ri­ty aut­ho­ri­ty ENISA.

Spe­cial requi­re­ments for “cri­ti­cal products”

Manu­fac­tu­r­ers of what the EU Com­mis­si­on con­siders “cri­ti­cal pro­ducts” must also under­go a spe­cial con­for­mi­ty pro­ce­du­re. To this end, the CRA pro­po­sal divi­des cer­tain pro­ducts into two classes:

  • Class 1 includes, but is not limi­t­ed to, iden­ti­ty manage­ment sys­tems, brow­sers, pass­word mana­gers, anti­vi­rus pro­grams, fire­walls, vir­tu­al pri­va­te net­works (VPNs), com­pre­hen­si­ve IT sys­tems, phy­si­cal net­work inter­faces, and rou­ters and chips used in essen­ti­al faci­li­ties as defi­ned in the Net­work and Infor­ma­ti­on Secu­ri­ty Direc­ti­ve 2 (“NIS‑2 Directive”).
  • The hig­her Class 2 includes, in par­ti­cu­lar, desk­top and mobi­le devices, vir­tua­li­sed ope­ra­ting sys­tems, digi­tal cer­ti­fi­ca­te issuers, general-purpose micro­pro­ces­sors, card rea­ders, robo­tic sen­sors, smart meters and all IoT devices, as well as rou­ters and fire­walls for indus­tri­al use, which is con­side­red a “sen­si­ti­ve environment”.

Accor­ding to the EU Com­mis­si­on’s pro­po­sal, a third-party assess­ment is also to be requi­red for Class 2 products.

Mar­ket sur­veil­lan­ce bodies and sanctions

In order to ensu­re veri­fi­ca­ti­on of com­pli­ance with the requi­re­ments of the CRA, the mem­ber sta­tes are requi­red to estab­lish mar­ket sur­veil­lan­ce bodies, which are to be able to car­ry out EU-wide coör­di­na­ted con­trol mea­su­res. In the event of a vio­la­ti­on, the pen­al­ties include the recall of the rele­vant pro­ducts and fines of up to EUR 15 mil­li­on or 2.5 per­cent of annu­al reve­nue, whi­che­ver is higher.

Expec­ted schedule

Fol­lo­wing the EU Com­mis­si­on’s pro­po­sal published today, the Euro­pean Coun­cil and the Euro­pean Par­lia­ment will now deal with the pro­po­sed legis­la­ti­on. The Com­mis­si­on’s pro­po­sal pro­vi­des for the new requi­re­ments to app­ly 24 months after the regu­la­ti­on enters into force, alt­hough some ele­ments, such as the duty to report secu­ri­ty inci­dents, are to app­ly after 12 months.

Prac­ti­cal implications

The CRA is inten­ded to app­ly to all digi­tal pro­ducts in the Euro­pean sin­gle mar­ket. To avo­id being caught off guard by the tight imple­men­ta­ti­on dead­lines, manu­fac­tu­r­ers should alre­a­dy check the pro­duct requi­re­ments for cyber­se­cu­ri­ty that they will have to com­ply with in the future. Espe­ci­al­ly for pro­ducts that are not yet capa­ble of remo­te secu­ri­ty updates (OTA updates), a cor­re­spon­ding tech­ni­cal chan­nel should be crea­ted. Updata­bi­li­ty is also beco­ming more important than ever in terms of poten­ti­al pro­duct alerts.

Fur­ther­mo­re, it is note­wor­t­hy that the EU Com­mis­si­on has aban­do­ned the con­cept of vol­un­t­a­ry self-commitment by manu­fac­tu­r­ers. Cer­ti­fi­ca­ti­on in accordance with the Cyber Secu­ri­ty Act is the­r­e­fo­re likely to beco­me less important, as is the BSI’s vol­un­t­a­ry IT secu­ri­ty label. Inde­pen­dent of the spe­ci­fic design of the CRA, the­re is also the ques­ti­on of enforce­ment. The GDPR demons­tra­tes that strict legal requi­re­ments wit­hout super­vi­so­ry con­trol are more of a paper tiger. While high fines are envi­sa­ged, data pro­tec­tion super­vi­so­ry aut­ho­ri­ties across Euro­pe com­plain that they are not suf­fi­ci­ent­ly equip­ped eit­her finan­ci­al­ly or in terms of per­son­nel to enforce the law.

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