80.

As to the proposed directive on NIS, the EDPS advises the legislators to: — provide more clarity and certainty in Article 3(8) on the definition of the market operators that fall within the scope of the proposal, and to set up an exhaustive list that includes all relevant stakeholders, with a view to ensuring a fully harmonised and integrated approach to security within the EU, — clarify in Article 1(2)(c) that the proposed directive applies to EU institutions and bodies, and to include a reference to Regulation (EC) No 45/2001 in Article 1(5) of the proposal, — recognise a more horizontal role for this proposal in respect of security, by explicitly providing in Article 1 that it should apply without prejudice to existing or future more detailed rules in specific areas (such as those to be set forth upon trust service providers in the proposed regulation on electronic identification), — add a recital to explain the need to embed data protection by design and by default from the early stage of the design of the mechanisms established in the proposal and through the whole lifecycle of processes, procedures, organisations, techniques and infrastructures involved, taking into account the proposed data protection regulation, — clarify the definitions of ‘network and information system’ in Article 3(1) and of ‘incident’ in Article 3(4), and replace in Article 5(2) the obligation to establish a ‘risk assessment plan’ by ‘setting up and maintaining a risk management framework’, — specify in Article 1(6) that the processing of personal data would be justified under Article 7(e) of Directive 95/46/EC insofar as it is necessary to meet the objectives of public interest pursued by the proposed directive. However, due respect of the principles of necessity and proportionality must be ensured, so that only the data strictly necessary for the purpose to be achieved are processed, — lay down in Article 14 the circumstances when a notification is required as well as the content and format of the notification, including the types of personal data that should be notified and whether or not, and to which extent, the notification and its supporting documents will include details of personal data affected by a specific security incident (such as IP addresses). Account must be taken of the fact that NIS competent authorities should be allowed to collect and process personal data in the framework of a security incident only where this is strictly necessary. Appropriate safeguards should also be set forth in the proposal to ensure the adequate protection of the data processed by NIS competent authorities, — clarify in Article 14 that incident notifications pursuant to Article 14(2) should apply without prejudice to personal data breach notification obligations pursuant to applicable data protection law. The main aspects of the procedure for the cooperation of NIS competent authorities with DPAs in cases where the security incident involves a personal data breach should be set forth in the proposal, — amend Article 14(8) so that the exclusion of microenterprises from the scope of the notification does not apply to those operators that play a crucial role in the provision of information society services, for instance in view of the nature of the information they process (e.g. biometric data or sensitive data), — add provisions in the proposal governing the further exchange of personal data by NIS competent authorities with other recipients, to ensure that (i) personal data are only disclosed to recipients whose processing is necessary for the performance of their tasks in accordance with an appropriate legal basis and (ii) such information is limited to what is necessary for the performance of their tasks. Consideration should also be given as to how entities providing data to the information-sharing network ensure compliance with the purpose limitation principle, — specify the time limit for the retention of personal data for the purposes set forth in the proposed directive, in particular as concerns the retention by NIS competent authorities and within the secure infrastructure of the cooperation network, — remind NIS competent authorities of their duty to provide appropriate information to data subjects on the processing of personal data, for example by posting a privacy policy on their website, — add a provision regarding the level of security to be complied with by NIS competent authorities as regards the information collected, processed, and exchanged. A reference to the security requirements of Article 17 of Directive 95/46/EC should be specifically included as regards the protection of personal data by NIS competent authorities, — clarify in Article 9(2) that the criteria for the participation of Member States in the secure information-sharing system should ensure that a high level of security and resilience is guaranteed by all the participants in the information-sharing systems at all steps of the processing. These criteria should include appropriate confidentiality and security measures in accordance with Articles 16 and 17 of Directive 95/46/EC and Articles 21 and 22 of Regulation (EC) No 45/2001. The Commission should be expressly bound by these criteria for its participation as a controller in the secure information-sharing system, — add in Article 9 a description of the roles and responsibilities of the Commission and of the Member States in the setup, operation and maintenance of the secure information-sharing system, and provide that the design of the system should be done in accordance with the principles of data protection by-design and by-default and of security-by-design, and — add in Article 13 that any transfer of personal data to recipients located in countries outside the EU should take place in accordance with Articles 25 and 26 of Directive 95/46/EC and Article 9 of Regulation (EC) No 45/2001.