(1)

In June 2004 the European Council asked for the preparation of an overall strategy to protect critical infrastructures. In response, on 20 October 2004, the Commission adopted a Communication on critical infrastructure protection in the fight against terrorism which put forward suggestions as to what would enhance European prevention of, preparedness for and response to terrorist attacks involving critical infrastructures.

(2)

On 17 November 2005 the Commission adopted a Green Paper on a European programme for critical infrastructure protection which provided policy options on the establishment of the programme and the Critical Infrastructure Warning Information Network. The responses received to the Green Paper emphasised the added value of a Community framework concerning critical infrastructure protection. The need to increase the critical infrastructure protection capability in Europe and to help reduce vulnerabilities concerning critical infrastructures was acknowledged. The importance of the key principles of subsidiarity, proportionality and complementarity, as well as of stakeholder dialogue was emphasised.

(3)

In December 2005 the Justice and Home Affairs Council called upon the Commission to make a proposal for a European programme for critical infrastructure protection (‘EPCIP’) and decided that it should be based on an all-hazards approach while countering threats from terrorism as a priority. Under this approach, man-made, technological threats and natural disasters should be taken into account in the critical infrastructure protection process, but the threat of terrorism should be given priority.

(4)

In April 2007 the Council adopted conclusions on the EPCIP in which it reiterated that it was the ultimate responsibility of the Member States to manage arrangements for the protection of critical infrastructures within their national borders while welcoming the efforts of the Commission to develop a European procedure for the identification and designation of European critical infrastructures (‘ECIs’) and the assessment of the need to improve their protection.

(5)

This Directive constitutes a first step in a step-by-step approach to identify and designate ECIs and assess the need to improve their protection. As such, this Directive concentrates on the energy and transport sectors and should be reviewed with a view to assessing its impact and the need to include other sectors within its scope, inter alia, the information and communication technology (‘ICT’) sector.

(6)

The primary and ultimate responsibility for protecting ECIs falls on the Member States and the owners/operators of such infrastructures.

(7)

There are a certain number of critical infrastructures in the Community, the disruption or destruction of which would have significant cross-border impacts. This may include transboundary cross-sector effects resulting from interdependencies between interconnected infrastructures. Such ECIs should be identified and designated by means of a common procedure. The evaluation of security requirements for such infrastructures should be done under a common minimum approach. Bilateral schemes for cooperation between Member States in the field of critical infrastructure protection constitute a well-established and efficient means of dealing with transboundary critical infrastructures. EPCIP should build on such cooperation. Information pertaining to the designation of a particular infrastructure as an ECI should be classified at an appropriate level in accordance with existing Community and Member State legislation.

(8)

Since various sectors have particular experience, expertise and requirements concerning critical infrastructure protection, a Community approach to critical infrastructure protection should be developed and implemented taking into account sector specificities and existing sector based measures including those already existing at Community, national or regional level, and where relevant cross-border mutual aid agreements between owners/operators of critical infrastructures already in place. Given the very significant private sector involvement in overseeing and managing risks, business continuity planning and post-disaster recovery, a Community approach needs to encourage full private sector involvement.

(9)

In terms of the energy sector and in particular the methods of electricity generation and transmission (in respect of supply of electricity), it is understood that where deemed appropriate, electricity generation may include electricity transmission parts of nuclear power plants, but exclude the specifically nuclear elements covered by relevant nuclear legislation including treaties and Community law.

(10)

This Directive complements existing sectoral measures at Community level and in the Member States. Where Community mechanisms are already in place, they should continue to be used and will contribute to the overall implementation of this Directive. Duplication of, or contradiction between, different acts or provisions should be avoided.

(11)

Operator security plans (‘OSPs’) or equivalent measures comprising an identification of important assets, a risk assessment and the identification, selection and prioritisation of counter measures and procedures should be in place in all designated ECIs. With a view to avoiding unnecessary work and duplication, each Member State should first assess whether the owners/operators of designated ECIs possess relevant OSPs or similar measures. Where such plans do not exist, each Member State should take the necessary steps to make sure that appropriate measures are put in place. It is up to each Member State to decide on the most appropriate form of action with regard to the establishment of OSPs.

(12)

Measures, principles, guidelines, including Community measures as well as bilateral and/or multilateral cooperation schemes that provide for a plan similar or equivalent to an OSP or provide for a Security Liaison Officer or equivalent, should be deemed to satisfy the requirements of this Directive in relation to the OSP or the Security Liaison Officer respectively.

(13)

Security Liaison Officers should be identified for all designated ECIs in order to facilitate cooperation and communication with relevant national critical infrastructure protection authorities. With a view to avoiding unnecessary work and duplication, each Member State should first assess whether the owners/operators of designated ECIs already possess a Security Liaison Officer or equivalent. Where such a Security Liaison Officer does not exist, each Member State should take the necessary steps to make sure that appropriate measures are put in place. It is up to each Member State to decide on the most appropriate form of action with regard to the designation of Security Liaison Officers.

(14)

The efficient identification of risks, threats and vulnerabilities in the particular sectors requires communication both between owners/operators of ECIs and the Member States, and between the Member States and the Commission. Each Member State should collect information concerning ECIs located within its territory. The Commission should receive generic information from the Member States concerning risks, threats and vulnerabilities in sectors where ECIs were identified, including where relevant information on possible improvements in the ECIs and cross-sector dependencies, which could be the basis for the development of specific proposals by the Commission on improving the protection of ECIs, where necessary.

(15)

In order to facilitate improvements in the protection of ECIs, common methodologies may be developed for the identification and classification of risks, threats and vulnerabilities to infrastructure assets.

(16)

Owners/operators of ECIs should be given access primarily through relevant Member State authorities to best practices and methodologies concerning critical infrastructure protection.

(17)

Effective protection of ECIs requires communication, coordination, and cooperation at national and Community level. This is best achieved through the nomination of European critical infrastructure protection contact points (‘ECIP contact points’) in each Member State, who should coordinate European critical infrastructure protection issues internally, as well as with other Member States and the Commission.

(18)

In order to develop European critical infrastructure protection activities in areas which require a degree of confidentiality, it is appropriate to ensure a coherent and secure information exchange in the framework of this Directive. It is important that the rules of confidentiality according to applicable national law or Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (3) are observed with regard to specific facts about critical infrastructure assets, which could be used to plan and act with a view to causing unacceptable consequences for critical infrastructure installations. Classified information should be protected in accordance with relevant Community and Member State legislation. Each Member State and the Commission should respect the relevant security classification given by the originator of a document.

(19)

Information sharing regarding ECIs should take place in an environment of trust and security. The sharing of information requires a relationship of trust such that companies and organisations know that their sensitive and confidential data will be sufficiently protected.

(20)

Since the objectives of this Directive, namely the creation of a procedure for the identification and designation of ECIs, and a common approach to the assessment of the need to improve the protection of such infrastructures, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(21)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,

(a)

‘critical infrastructure’ means an asset, system or part thereof located in Member States which is essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions;

(b)

‘European critical infrastructure’ or ‘ECI’ means critical infrastructure located in Member States the disruption or destruction of which would have a significant impact on at least two Member States. The significance of the impact shall be assessed in terms of cross-cutting criteria. This includes effects resulting from cross-sector dependencies on other types of infrastructure;

(c)

‘risk analysis’ means consideration of relevant threat scenarios, in order to assess the vulnerability and the potential impact of disruption or destruction of critical infrastructure;

(d)

‘sensitive critical infrastructure protection related information’ means facts about a critical infrastructure, which if disclosed could be used to plan and act with a view to causing disruption or destruction of critical infrastructure installations;

(e)

‘protection’ means all activities aimed at ensuring the functionality, continuity and integrity of critical infrastructures in order to deter, mitigate and neutralise a threat, risk or vulnerability;

(f)

‘owners/operators of ECIs’ means those entities responsible for investments in, and/or day-to-day operation of, a particular asset, system or part thereof designated as an ECI under this Directive.