(1)

On 19 June 2017 the Council adopted conclusions on a framework for a joint diplomatic response to malicious cyber activities (‘the Cyber Diplomacy Toolbox’), in which the Council expressed concerns about the increased ability and willingness of State and non-State actors to pursue their objectives by undertaking malicious cyber activities and affirmed the growing need to protect the integrity and security of the Union, its Member States and their citizens against cyber threats and malicious cyber activities.

(2)

The Council stressed that clearly signalling the likely consequences of a joint Union diplomatic response to such malicious cyber activities influences the behaviour of potential aggressors in cyberspace, thereby reinforcing the security of the Union and its Member States. It also affirmed that measures within the common foreign and security policy (CFSP), including, if necessary, restrictive measures, adopted under the relevant provisions of the Treaties, are suitable for a framework for a joint Union diplomatic response to malicious cyber activities, with the aim of encouraging cooperation, facilitating the mitigation of immediate and long-term threats, and influencing the behaviour of potential aggressors in the long term.

(3)

On 11 October 2017 implementing guidelines for the Cyber Diplomacy Toolbox were approved by the Political and Security Committee. The implementing guidelines refer to five categories of measures, including restrictive measures, within the Cyber Diplomacy Toolbox, and the process for invoking those measures.

(4)

The Council conclusions adopted on 16 April 2018 on malicious cyber activities firmly condemned the malicious use of information and communications technologies (ICTs) and stressed that the use of ICTs for malicious purposes is unacceptable as it undermines the stability, security and benefits provided by the internet and the use of ICTs. The Council recalled that the Cyber Diplomacy Toolbox contributes to conflict prevention, cooperation and stability in cyberspace by setting out measures within the CFSP, including restrictive measures, that can be used to prevent and respond to malicious cyber activities. It stated that the Union will continue strongly to uphold that existing international law is applicable to cyberspace and emphasised that respect for international law, in particular the United Nations Charter, is essential to maintaining peace and stability. The Council also underlined that States are not to use proxies to commit internationally wrongful acts using ICTs, and should seek to ensure that their territory is not used by non-State actors to commit such acts as expressed in the 2015 report of the United Nations Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security.

(5)

On 28 June 2018 the European Council adopted conclusions which stressed the need to strengthen capabilities against cybersecurity threats from outside the Union. The European Council asked the institutions and Member States to implement the measures referred to in the joint communication of the Commission and the High Representative of the Union for Foreign Affairs and Security Policy of 13 June 2018 entitled ‘Increasing resilience and bolstering capabilities to address hybrid threats’, including the practical use of the Cyber Diplomacy Toolbox.

(6)

On 18 October 2018 the European Council adopted conclusions which called for the work on the capacity to respond to and deter cyber-attacks through Union restrictive measures to be taken forward, further to the Council conclusions of 19 June 2017.

(7)

In this context, this Decision establishes a framework for targeted restrictive measures to deter and respond to cyber-attacks with a significant effect which constitute an external threat to the Union or its Member States. Where deemed necessary to achieve CFSP objectives in the relevant provisions of Article 21 of the Treaty on European Union, this Decision also allows for restrictive measures to be applied in response to cyber-attacks with a significant effect against third States or international organisations.

(8)

In order to have a deterrent and dissuasive effect, targeted restrictive measures should focus on cyber-attacks falling within the scope of this Decision that are wilfully carried out.

(9)

Targeted restrictive measures should be differentiated from the attribution of responsibility for cyber-attacks to a third State. The application of targeted restrictive measures does not amount to such attribution, which is a sovereign political decision taken on a case-by-case basis. Every Member State is free to make its own determination with respect to the attribution of cyber-attacks to a third State.

(10)

Further action by the Union is needed in order to implement certain measures,

(a)

‘information systems’ means a device or group of interconnected or related devices, one or more of which, pursuant to a programme, automatically processes digital data, as well as digital data stored, processed, retrieved or transmitted by that device or group of devices for the purposes of its or their operation, use, protection and maintenance.

(b)

‘information system interference’ means hindering or interrupting the functioning of an information system by inputting digital data, by transmitting, damaging, deleting, deteriorating, altering or suppressing such data, or by rendering such data inaccessible.

(c)

‘data interference’ means deleting, damaging, deteriorating, altering or suppressing digital data on an information system, or rendering such data inaccessible; it also includes theft of data, funds, economic resources or intellectual property.

(d)

‘data interception’ means intercepting, by technical means, non-public transmissions of digital data to, from or within an information system, including electromagnetic emissions from an information system carrying such digital data.

(a)

the scope, scale, impact or severity of disruption caused, including to economic and societal activities, essential services, critical State functions, public order or public safety;

(b)

the number of natural or legal persons, entities or bodies affected;

(c)

the number of Member States concerned;

(d)

the amount of economic loss caused, such as through large-scale theft of funds, economic resources or intellectual property;

(e)

the economic benefit gained by the perpetrator, for himself or for others;

(f)

the amount or nature of data stolen or the scale of data breaches; or

(g)

the nature of commercially sensitive data accessed.

(a)

designated natural or legal persons, entities or bodies listed in the Annex;

(b)

any natural or legal person, entity or body acting through or on behalf of one of the natural or legal persons, entities or bodies referred to in point (a).