Cyber Resilience Act, Preamble 71 to 80 (Final Text)
(71) When manufacturers notify an actively exploited vulnerability or a severe incident having an impact on the security of the product with digital elements, they should indicate how sensitive they consider the notified information to be. The CSIRT designated as coordinator initially receiving the notification should take this information into account when assessing whether the notification gives rise to exceptional circumstances that justify a delay in the dissemination of the notification to the other relevant CSIRTs designated as coordinators based on justified cybersecurity-related grounds.
It should also take that information into account when assessing whether the notification of an actively exploited vulnerability gives rise to particularly exceptional circumstances that justify that the full notification is not made available simultaneously to ENISA. Finally, CSIRTs designated as coordinators should be able to take that information into account when determining appropriate measures to mitigate the risks stemming from such vulnerabilities and incidents.
(72) In order to simplify the reporting of information required under this Regulation, in consideration of other complementary reporting requirements laid down in Union law, such as Regulation (EU) 2016/679, Regulation (EU) 2022/2554 of the European Parliament and of the Council (25), Directive 2002/58/EC of the European Parliament and of the Council (26) and Directive (EU) 2022/2555, as well as to decrease the administrative burden for entities, Member States are encouraged to consider providing at national level single entry points for such reporting requirements.
The use of such national single entry points for the reporting of security incidents under Regulation (EU) 2016/679 and Directive 2002/58/EC should not affect the application of the provisions of Regulation (EU) 2016/679 and Directive 2002/58/EC, in particular those relating to the independence of the authorities referred to therein. When establishing the single reporting platform referred to in this Regulation, ENISA should take into account the possibility for the national electronic notification end-points referred to in this Regulation to be integrated into national single entry points that may also integrate other notifications required under Union law.
(73) When establishing the single reporting platform referred to in this Regulation and in order to benefit from past experience, ENISA should consult other Union institutions or agencies that are managing platforms or databases subject to stringent security requirements, such as the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA). ENISA should also analyse potential complementarities with the European vulnerability database established pursuant to Article 12(2) of Directive (EU) 2022/2555.
(74) Manufacturers and other natural and legal persons should be able to notify to a CSIRT designated as coordinator or ENISA, on a voluntary basis, any vulnerability contained in a product with digital elements, cyber threats that could affect the risk profile of a product with digital elements, any incident having an impact on the security of the product with digital elements as well as near misses that could have resulted in such an incident.
(75) Member States should aim to address, to the extent possible, the challenges faced by vulnerability researchers, including their potential exposure to criminal liability, in accordance with national law. Given that natural and legal persons researching vulnerabilities could in some Member States be exposed to criminal and civil liability, Member States are encouraged to adopt guidelines as regards the non-prosecution of information security researchers and an exemption from civil liability for their activities.
(76) Manufacturers of products with digital elements should put in place coordinated vulnerability disclosure policies to facilitate the reporting of vulnerabilities by individuals or entities either directly to the manufacturer or indirectly, and where requested anonymously, via CSIRTs designated as coordinators for the purposes of coordinated vulnerability disclosure in accordance with Article 12(1) of Directive (EU) 2022/2555.
Manufacturers’ coordinated vulnerability disclosure policy should specify a structured process through which vulnerabilities are reported to a manufacturer in a manner allowing the manufacturer to diagnose and remedy such vulnerabilities before detailed vulnerability information is disclosed to third parties or to the public.
Moreover, manufacturers should also consider publishing their security policies in machine-readable format. Given the fact that information about exploitable vulnerabilities in widely used products with digital elements can be sold at high prices on the black market, manufacturers of such products should be able to use programmes, as part of their coordinated vulnerability disclosure policies, to incentivise the reporting of vulnerabilities by ensuring that individuals or entities receive recognition and compensation for their efforts. This refers to so-called ‘bug bounty programmes’.
(77) In order to facilitate vulnerability analysis, manufacturers should identify and document components contained in the products with digital elements, including by drawing up an SBOM. An SBOM can provide those who manufacture, purchase, and operate software with information that enhances their understanding of the supply chain, which has multiple benefits, in particular it helps manufacturers and users to track known newly emerged vulnerabilities and cybersecurity risks. It is of particular importance that manufacturers ensure that their products with digital elements do not contain vulnerable components developed by third parties. Manufacturers should not be obliged to make the SBOM public.
(78) Under the new complex business models linked to online sales, a business operating online can provide a variety of services. Depending on the nature of the services provided in relation to a given product with digital elements, the same entity may fall within different categories of business models or economic operators. Where an entity provides only online intermediation services for a given product with digital elements and is merely a provider of an online marketplace as defined in Article 3, point (14), of Regulation (EU) 2023/988, it does not qualify as one of the types of economic operator defined in this Regulation.
Where the same entity is a provider of an online marketplace and also acts as an economic operator as defined in this Regulation for the sale of particular products with digital elements, it should be subject to the obligations set out in this Regulation for that type of economic operator. For instance, if the provider of an online marketplace also distributes a product with digital elements, then, with respect to the sale of that product, it would be considered to be a distributor.
Similarly, if the entity in question sells its own branded products with digital elements, it would qualify as a manufacturer and would thus have to comply with the applicable requirements for manufacturers. Also, some entities can qualify as fulfilment service providers as defined in Article 3, point (11), of Regulation (EU) 2019/1020 of the European Parliament and of the Council if they offer such services.
Such cases would need to be assessed on a case-by-case basis. Given the prominent role that online marketplaces have in enabling electronic commerce, they should strive to cooperate with the market surveillance authorities of the Member States in order to help ensure that products with digital elements purchased through online marketplaces comply with the cybersecurity requirements laid down in this Regulation.
(79) In order to facilitate assessment of conformity with the requirements laid down in this Regulation, there should be a presumption of conformity for products with digital elements which are in conformity with harmonised standards, which translate the essential cybersecurity requirements set out in this Regulation into detailed technical specifications, and which are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council. That Regulation provides for a procedure for objections to harmonised standards where those standards do not entirely satisfy the requirements set out in this Regulation.
The standardisation process should ensure a balanced representation of interests and effective participation of civil society stakeholders, including consumer organisations. International standards that are in line with the level of cybersecurity protection aimed for by the essential cybersecurity requirements set out in this Regulation should also be taken into account, in order to facilitate the development of harmonised standards and the implementation of this Regulation, as well as to facilitate compliance for companies, in particular microenterprises and small and medium-sized enterprises and those operating globally.
(80) The timely development of harmonised standards during the transitional period for the application of this Regulation and their availability before the date of application of this Regulation will be particularly important for its effective implementation. This is, in particular, the case for important products with digital elements that fall under class I. The availability of harmonised standards will enable manufacturers of such products to perform the conformity assessments via the internal control procedure and can therefore avoid bottlenecks and delays in the activities of conformity assessment bodies.
Cyber Resilience Act Final Text
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