NIS2 Article 3. Essential and important entities

Entities falling within the scope of this Directive for the purpose of compliance with cybersecurity risk-management measures and reporting obligations should be classified into two categories, essential entities and important entities, reflecting the extent to which they are critical as regards their sector or the type of service they provide, as well as their size. In that regard, due account should be taken of any relevant sectoral risk assessments or guidance by the competent authorities, where applicable. The supervisory and enforcement regimes for those two categories of entities should be differentiated to ensure a fair balance between risk-based requirements and obligations on the one hand, and the administrative burden stemming from the supervision of compliance on the other.

In order to avoid entities that have partner enterprises or that are linked enterprises being considered to be essential or important entities where this would be disproportionate, Member States are able to take into account the degree of independence an entity enjoys in relation to its partner or linked enterprises when applying Article 6(2) of the Annex to Recommendation 2003/361/EC. In particular, Member States are able to take into account the fact that an entity is independent from its partner or linked enterprises in terms of the network and information systems that that entity uses in the provision of its services and in terms of the services that the entity provides. On that basis, where appropriate, Member States are able to consider that such an entity does not qualify as a medium-sized enterprise under Article 2 of the Annex to Recommendation 2003/361/EC, or does not exceed the ceilings for a medium-sized enterprise provided for in paragraph 1 of that Article, if, after taking into account the degree of independence of that entity, that entity would not have been considered to qualify as a medium-sized enterprise or to exceed those ceilings in the event that only its own data had been taken into account. This leaves unaffected the obligations laid down in this Directive of partner and linked enterprises which fall within the scope of this Directive.

Member States should be able to decide that entities identified before the entry into force of this Directive as operators of essential services in accordance with Directive (EU) 2016/1148 are to be considered to be essential entities.

In order to ensure a clear overview of the entities falling within the scope of this Directive, Member States should establish a list of essential and important entities as well as entities providing domain name registration services. For that purpose, Member States should require entities to submit at least the following information to the competent authorities, namely, the name, address and up-to-date contact details, including the email addresses, IP ranges and telephone numbers of the entity, and, where applicable, the relevant sector and subsector referred to in the annexes, as well as, where applicable, a list of the Member States where they provide services falling within the scope of this Directive. To that end, the Commission, with the assistance of the European Union Agency for Cybersecurity (ENISA), should, without undue delay, provide guidelines and templates regarding the obligation to submit information. To facilitate the establishing and updating of the list of essential and important entities as well as entities providing domain name registration services, Member States should be able to establish national mechanisms for entities to register themselves. Where registers exist at national level, Member States can decide on the appropriate mechanisms that allow for the identification of entities falling within the scope of this Directive.

Member States should be responsible for submitting to the Commission at least the number of essential and important entities for each sector and subsector referred to in the annexes, as well as relevant information about the number of identified entities and the provision, from among those laid down in this Directive, on the basis of which they were identified, and the type of service that they provide. Member States are encouraged to exchange with the Commission information about essential and important entities and, in the case of a large-scale cybersecurity incident, relevant information such as the name of the entity concerned.

Upholding and preserving a reliable, resilient and secure domain name system (DNS) are key factors in maintaining the integrity of the internet and are essential for its continuous and stable operation, on which the digital economy and society depend. Therefore, this Directive should apply to top-level-domain (TLD) name registries, and DNS service providers that are to be understood as entities providing publicly available recursive domain name resolution services for internet end-users or authoritative domain name resolution services for third-party usage. This Directive should not apply to root name servers.