Cyber Resilience Act, Preamble 51 to 60 (15.9.2022)
(51) The notification of a conformity assessment body should be sent by the notifying authority to the Commission and the other Member States via the New Approach Notified and Designated Organisations (NANDO) information system. NANDO is the electronic notification tool developed and managed by the Commission where a list of all notified bodies can be found.
(52) Since notified bodies may offer their services throughout the Union, it is appropriate to give the other Member States and the Commission the opportunity to raise objections concerning a notified body. It is therefore important to provide for a period during which any doubts or concerns as to the competence of conformity assessment bodies can be clarified before they start operating as notified bodies.
(53) In the interests of competitiveness, it is crucial that notified bodies apply the conformity assessment procedures without creating unnecessary burden for economic operators. For the same reason, and to ensure equal treatment of economic operators, consistency in the technical application of the conformity assessment procedures needs to be ensured. That should be best achieved through appropriate coordination and cooperation between notified bodies.
(54) Market surveillance is an essential instrument in ensuring the proper and uniform application of Union legislation. It is therefore appropriate to put in place a legal framework within which market surveillance can be carried out in an appropriate manner. Rules on Union market surveillance and control of products entering the Union market provided for in Regulation (EU) 2019/1020 of the European Parliament and of the Council 32 apply to products with digital elements covered by this Regulation.
(55) In accordance with Regulation (EU) 2019/1020, market surveillance authorities carry out market surveillance in the territory of that Member State. This Regulation should not prevent Member States from choosing the competent authorities to carry out those tasks. Each Member State should designate one or more market surveillance authorities in its territory. Member States may choose to designate any existing or new authority to act as market surveillance authority, including national competent authorities referred to in Article [Article X] of Directive [Directive XXX/XXXX (NIS2)] or designated national cybersecurity certification authorities referred to in Article 58 of Regulation (EU) 2019/881. Economic operators should fully cooperate with market surveillance authorities and other competent authorities. Each Member State should inform the Commission and the other Member States of its market surveillance authorities and the areas of competence of each of those authorities and should ensure the necessary resources and skills to carry out the surveillance tasks relating to this Regulation. As per Article 10(2) and (3) of Regulation (EU) 2019/1020, each Member State should appoint a single liaison office that should be responsible, among others, for representing the coordinated position of the market surveillance authorities and assisting in the cooperation between market surveillance authorities in different Member States.
(56) A dedicated administrative cooperation group (ADCO) should be established for the uniform application of this Regulation, pursuant to Article 30(2) of Regulation (EU) 2019/1020. This ADCO should be composed of representatives of the designated market surveillance authorities and, if appropriate, representatives of the single liaison offices. The Commission should support and encourage cooperation between market surveillance authorities through the Union Product Compliance Network, established on the basis of Article 29 of Regulation (EU) 2019/1020 and comprising representatives from each Member State, including a representative of each single liaison office referred to in Article 10 of Regulation (EU) 2019/1020 and an optional national expert, the chairs of ADCOs, and representatives from the Commission. The Commission should participate in the meetings of the Network, its sub-groups and this respective ADCO. It should also assist this ADCO by means of an executive secretariat that provides technical and logistic support.
(57) In order to ensure timely, proportionate and effective measures in relation to products with digital elements presenting a significant cybersecurity risk, a Union safeguard procedure should be foreseen under which interested parties are informed of measures intended to be taken with regard to such products. This should also allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage where necessary. Where the Member States and the Commission agree as to the justification of a measure taken by a Member State, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings of a harmonised standard.
(58) In certain cases, a product with digital elements which complies with this Regulation, may nonetheless present a significant cybersecurity risk or pose a risk to the health or safety of persons, to compliance with obligations under Union or national law intended to protect fundamental rights, the availability, authenticity, integrity or confidentiality of services offered using an electronic information system by essential entities of the type referred to in [Annex I to Directive XXX/XXXX (NIS2)] or to other aspects of public interest protection. Therefore it is necessary to establish rules which ensure mitigation of those risks. As a result, market surveillance authorities should take measures to require the economic operator to ensure that the product no longer presents that risk, to recall it or to withdraw it, depending on the risk. As soon as a market surveillance authority restricts or forbids the free movement of a product in such way, the Member State should notify without delay the Commission and the other Member States of the provisional measures, indicating the reasons and justification for the decision. Where a market surveillance authority adopts such measures against products presenting a risk, the Commission should enter into consultation with the Member States and the relevant economic operator or operators without delay and should evaluate the national measure. On the basis of the results of this evaluation, the Commission should decide whether the national measure is justified or not. The Commission should address its decision to all Member States and immediately communicate it to them and the relevant economic operator or operators. If the measure is considered justified, the Commission may also consider adopting proposals to revise the respective Union legislation.
(59) For products with digital elements presenting a significant cybersecurity risk, and where there is reason to believe that these are not compliant with this Regulation, or for products that are compliant with this Regulation, but that present other important risks, such as risks to the health or safety of persons, fundamental rights or the provision of the services by essential entities of the type referred to in [Annex I of Directive XXX / XXXX (NIS2)], the Commission may request ENISA to carry out an evaluation. Based on that evaluation, the Commission may adopt, through implementing acts, corrective or restrictive measures at Union level, including ordering withdrawal from the market, or recalling of the respective products, within a reasonable period, commensurate with the nature of the risk. The Commission may have recourse to such intervention only in exceptional circumstances that justify an immediate intervention to preserve the good functioning of the internal market, and only where no effective measures have been taken by surveillance authorities to remedy the situation. Such exceptional circumstances may be emergency situations where, for example, a non-compliant product is widely made available by the manufacturer throughout several Member States, used also in key sectors by entities under the scope of [Directive XXX / XXXX (NIS2)], while containing known vulnerabilities that are being exploited by malicious actors and for which the manufacturer does not provide available patches. The Commission may intervene in such emergency situations only for the duration of the exceptional circumstances and if the non-compliance with this Regulation or the important risks presented persist.
(60) In cases where there are indications of non-compliance with this Regulation in several Member States, market surveillance authorities should be able to carry out joint activities with other authorities, with a view to verifying compliance and identifying cybersecurity risks of products with digital elements.
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