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REGULATION (EU) 2023/2450

COMMISSION DELEGATED REGULATION (EU) 2023/2450

of 25 July 2023

supplementing Directive (EU) 2022/2557 of the European Parliament and of the Council by establishing a list of essential services

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive (EU) 2022/2557 of the European Parliament and of the Council of 14 December 2022 on the resilience of critical entities and repealing Council Directive 2008/114/EC (1), in particular Article 5(1) thereof,

Whereas:

(1) Directive (EU) 2022/2557 aims at ensuring that services essential for the maintenance of vital societal functions or economic activities are provided in an unobstructed manner in the internal market and that the resilience of critical entities providing such services is enhanced.

(2) For that purpose and pursuant to Article 5(1) of Directive (EU) 2022/2557, the Commission is empowered to adopt a delegated act establishing a non-exhaustive list of essential services in the sectors and subsectors set out in the Annex to that Directive. The list is to be used by the competent authorities for the purpose of carrying out a riskRisk Means the potential for loss or disruption caused by an incident and is to be expressed as a combination of the magnitude of such loss or disruption and the likelihood of occurrence of the incident. - Definition according Article 6 Directive (EU) 2022/2555 (NIS2 Directive) assessment and thereafter the risk assessment is to be used for the purpose of identifying critical entities.

(3) The list of essential services should be drawn up in a generic way, in order to accommodate Member States’ specificities such as size, population density, or geographic location. However, it should cover the essential services only of the categories of entities set out in the Annex to Directive (EU) 2022/2557. To that effect, only services provided by entities falling within those categories should be considered as essential services, as defined in Article 2, point (5), of Directive (EU) 2022/2557.

(4) More generally, the list of essential services should be used in the light of all the relevant provisions of Directive (EU) 2022/2557. This includes the definition of essential services as services that are crucial for the maintenance of vital societal functions, economic activities, public health and safety, or the environment, as well as the definition of a public administration entityPublic Administration Entity Means an entity recognised as such in a Member State in accordance with national law, not including the judiciary, parliaments or central banks, which complies with the following criteria: (a) it is established for the purpose of meeting needs in the general interest and does not have an industrial or commercial character; (b) it has legal personality or is entitled by law to act on behalf of another entity with legal personality; (c) it is financed, for the most part, by the State, regional authorities or by other bodies governed by public law, is subject to management supervision by those authorities or bodies, or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional authorities or by other bodies governed by public law; (d) it has the power to address to natural or legal persons administrative or regulatory decisions affecting their rights in the cross-border movement of persons, goods, services or capital. - Definition according Article 6 Directive (EU) 2022/2555 (NIS2 Directive) and the provisions on that Directive’s scope. Pursuant to Article 1(6) of Directive (EU) 2022/2557, public administration entities that carry out their activities in the areas of national security, public security, defence or law enforcement, including investigation, detection and prosecution of criminal offences are excluded.

(5) Consequently, the economic activities listed, on a non-exhaustive basis, in this delegated Regulation, should only be considered essential services, for the purpose of this delegated Regulation and Directive (EU) 2022/2557, where they qualify as essential services as defined in that Directive.

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation establishes, pursuant to Article 5(1) of Directive (EU) 2022/2557, a non-exhaustive list of essential services, as defined in Article 2, point (5) of that Directive, in the sectors and subsectors set out in the Annex to that Directive.

Article 2

Non-exhaustive list of essential services

The non-exhaustive list of essential services referred to in Article 1 shall be as follows:

  1. energy sector:
    • (a) electricity subsector:
      • (i) supply of electricity (electricity undertakings);
      • (ii) operation, maintenance and development of an electricity distribution system (distribution system operators);
      • (iii) operation, maintenance and development of an electricity transmission system (transmission system operators);
      • (iv) generation of electricity (producers);
      • (v) nominated electricity market operator service (nominated electricity market operators);
      • (vi) demand response (electricity market participants);
      • (vii) aggregation of electricity (electricity market participants);
      • (viii) energy storage (electricity market participants);
    • (b) district heating and cooling subsector: provision of district heating or district cooling (operators of district heating or district cooling);
    • (c) oil subsector:
      • (i) oil transmission (operators of oil transmission pipelines);
      • (ii) production of oil (operators of oil production);
      • (iii) refinement and treatment of oil (operators of oil refining and treatment facilities);
      • (iv) oil storage (operators of oil storage);
      • (v) management of oil stocks, including emergency stocks and specific oil stocks (central stockholding entities);
    • (d) gas subsector:
      • (i) supply of gas (supply undertaking);
      • (ii) distribution of gas (distribution system operators);
      • (iii) transmission of gas (transmission system operators);
      • (iv) storage of gas (storage system operators);
      • (v) operation of a liquified natural gas (LNG) system (LNG system operators);
      • (vi) production of natural gas (natural gas undertakings);
      • (vii) purchase of natural gas (natural gas undertakings);
      • (viii) refinement and treatment of natural gas (operators of natural gas refining and treatment facilities);
    • (e) hydrogen subsector:
      • (i) production of hydrogen (operators of hydrogen production);
      • (ii) storage of hydrogen (operators of hydrogen storage);
      • (iii) transmission of hydrogen (operators of hydrogen transmission);
  2. transport sector:
    • (a) air subsector:
      • (i) air transport services used for commercial purposes (passenger and cargo) (air carriers);
      • (ii) operation, management and maintenance of airports and of airport network infrastructure (airport managing bodies);
      • (iii) air traffic control services (traffic management control operators);
    • (b) rail subsector:
      • (i) railway transport services (passenger and freight) (railway undertakings);
      • (ii) operation, management and maintenance of railway infrastructure, including passenger stations, freight terminals, railway yards and traffic control centres (infrastructure managers);
      • (iii) operation, management and maintenance of railway service facilities (operators of service facilities);
      • (iv) operation, management and maintenance of rail traffic management, control-command and signalling as well as telecommunication installations and systems used for control-command and signalling (infrastructure managers);
    • (c) water subsector:
      • (i) inland, sea and coastal water transport services (passenger and freight) (inland, sea and coastal passenger and freight water transport companies);
      • (ii) operation, management and maintenance of port and port facilities, and operation of works and equipment within ports, including bunkering, cargo-handling, mooring, passenger services, collection of ship-generated waste and cargo residues, pilotage and towage (managing bodies of ports and entities operating works and equipment contained within ports);
      • (iii) vessel traffic services (operators of vessel traffic services);
    • (d) road subsector:
      • (i) traffic management control, including aspects related to road network planning, control and management services, excluding traffic management or the operation of intelligent transport systems where they are not an essential part of the general activity of public entities (road authorities);
      • (ii) Intelligent Transport Systems services (operators of Intelligent Transport Systems);
    • (e) public transport subsector: public passenger transport services by rail and other track-based modes and by road (public service operators);
  3. banking sector:
    • (i) taking deposits (credit institutions);
    • (ii) lending (credit institutions);
  4. financial market infrastructure sector:
    • (i) operation of a trading venue (operators of trading venues);
    • (ii) operation of clearing systems (central counterparties);
  5. health sector:
    • (i) provision of healthcare services (healthcare providers);
    • (ii) analysis performed by a European Union reference laboratory (EU Reference laboratories);
    • (iii) research and development of medicinal products (entities carrying out research and development activities of medicinal products);
    • (iv) manufacturing of basic pharmaceutical products and of basic pharmaceutical preparations (entities manufacturing basic pharmaceutical products and pharmaceutical preparations);
    • (v) manufacturing of medical devices considered as critical during a public health emergency (entities manufacturing medical devices);
    • (vi) distribution of medicinal products (entities holding a distribution authorisation);
  6. drinking water sector: drinking water supply and drinking water distribution excluding distribution of water for human consumption where that service is a non-essential part of the general activity of distributors distributing other commodities and goods (suppliers and distributors of water intended for human consumption);
  7. waste water sector: waste water collection, treatment and disposal excluding collecting, disposing of or treating urban waste water, domestic waste water or industrial waste water where they are not an essential part of the general activities of undertakings (undertakings collecting, disposing of or treating urban waste water, domestic waste water and industrial waste water);
  8. digital infrastructure sector:
    • (i) provision and operation of internet exchange pointInternet exchange point Means a network facility which enables the interconnection of more than two independent networks (autonomous systems), primarily for the purpose of facilitating the exchange of internet traffic, which provides interconnection only for autonomous systems and which neither requires the internet traffic passing between any pair of participating autonomous systems to pass through any third autonomous system nor alters or otherwise interferes with such traffic. - Definition according Article 6 Directive (EU) 2022/2555 (NIS2 Directive) service (providers of internet Exchange Points);
    • (ii) provision of domain name system (DNS) service excluding services related to root name servers (DNS service providers);
    • (iii) operation and administration of top-level domain (TLD) name registries (TLD name registries);
    • (iv) provision of cloud computing services (providers of cloud computing services);
    • (v) provision of data centre serviceData centre service Means a service that encompasses structures, or groups of structures, dedicated to the centralised accommodation, interconnection and operation of IT and network equipment providing data storage, processing and transport services together with all the facilities and infrastructures for power distribution and environmental control. - Definition according Article 6 Directive (EU) 2022/2555 (NIS2 Directive) (providers of data centre services);
    • (vi) provision of content delivery networks (providers of content delivery networks);
    • (vii) provision of trust services (trust serviceTrust service Means an electronic service normally provided for remuneration which consists of: (a) the creation, verification, and validation of electronic signatures, electronic seals or electronic time stamps, electronic registered delivery services and certificates related to those services, or (b) the creation, verification and validation of certificates for website authentication; or (c) the preservation of electronic signatures, seals or certificates related to those services. - Definition according Article 3, point (16), of Regulation (EU) No 910/2014 providers);
    • (viii) provision of publicly available electronic communications services (providers of electronic communications services);
    • (ix) provision of public electronic communications networks (providers of public electronic communications networks);
  9. (9) public administration sector: services provided by public administration entities within the meaning of Article 2, point (10), of Directive (EU) 2022/2557, of central governments as defined by Member States in accordance with national law (public administration entities of central governments);
  10. space sector: operation of ground-based infrastructure owned, managed and operated by Member States or by private parties that support the provision of space-based services, excluding providers of public electronic communication networks (operators of ground-based infrastructure);
  11. production, processing and distribution of food sector (food businesses which are engaged exclusively in logistics and wholesale distribution and large scale industrial production and processing):
    • (i) large-scale industrial food production and processing;
    • (ii) food supply chain services, including storage and logistics;
    • (iii) food wholesale distribution.

Article 3

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 25 July 2023.

For the Commission
The President
Ursula VON DER LEYEN