The recently agreed Cyber Resilience Act isn’t the only new EU cybersecurity rule set to be published this December: by the end of the year, the European Commission is expected to adopt its draft regulations to establish a European cybersecurity certification scheme (“ECCS”).

Once finalized, the ECCS will be issued under the European Union’s Cybersecurity Act which allows for voluntary accreditation against the ECCS. Although voluntary, the draft standards will also have consequences for European cybersecurity laws more broadly, including:

  • NIS 2, Europe’s cybersecurity directive for essential infrastructure, which provides that member states may require entities to use products that are certified under the ECCS. For an overview of NIS 2, see our blog here.
  • The recently-agreed Cyber Resilience Act, Europe’s draft regulation on the security of the internet of things, which provides that the European Commission can require manufacturers of certain “highly critical” products to be certified under the ECCS, and creates a presumption that products compliant with an ECCS conform with cybersecurity requirements. For an overview of the Cyber Resilience Act, see our blog here.
  • The EU Cybersecurity Scheme for Cloud Services, which will also be issued under the Cybersecurity Act but cover cloud services instead of IT products. For an overview of this scheme, see our blog here.

The draft ECCS builds on the Common Criteria for Information Technology Security Evaluation (ISO standard 15408) – a welcome albeit incomplete embrace of international standards – and is intended to cover a broad range of IT products with security components such as smartphones, bank cards, and routers. But the draft ECCS also goes well beyond simply setting out technical standards for products – it also:

  • Sets out the process for certification – most notably, providing that self-assessment is not allowed even for lower-risk products.
  • Requires vulnerability disclosure – through a vulnerability disclosure and analysis regime applying to products that have been certified.
  • Sets out high expectations for regulators and certification bodies – including calling for national cybersecurity authorities to proactively sample at least 5% of products certified in the previous year, and for certification bodies to subjected to “peer assessments” to identify shortcomings.
  • Requires entities to take vulnerability management steps – including proactively monitoring vulnerability information about the product and its dependencies and implementing a vulnerability management program aligned to ISO 30111.
  • Allows for mutual recognition of standards – where other countries sign mutual recognition agreements with the EU.
  • Provides for consolidation of member states’ existing (national) certification schemes – with those existing schemes being phased out entirely after a 1-year transition period.

The draft standard will therefore be of interest to those seeking certification for their IT products as well as providing a preview of the process that will apply across other technical standards issued under the Cybersecurity Act.

Cyber Resilience Act continues to roll through the legislative process

Alongside the new ECCS, the Cyber Resilience Act is continuing its journey through the EU legislative process, having been agreed in the last week (see our blog here). Once it comes into force, the Cyber Resilience Act will set out a range of obligations for manufacturers and importers of “products with digital elements” (“PDEs”), including:

  • designing PDEs to meet certain essential cybersecurity requirements through risk assessment and protection against known vulnerabilities;
  • submitting PDEs to conformity assessments;
  • notifying identified vulnerabilities and security incidents to the national cybersecurity authority, ENISA, and users of the PDE; and
  • conducting due diligence on imported PDEs.

As with most recent European technology regulation, the Cyber Resilience Act will come with the threat of high penalties for non-compliance – up to €15 million or 2.5% of global turnover.

What’s happening next?

Following the end of the consultation period on 31 October, the European Commission is currently considering the feedback it received and is expected to publish the final ECCS regulations by the end of 2023. The ECCS will then take effect 12 months from its entry into force.

Meanwhile, the Cyber Resilience Act, which has now been agreed in substance but awaits legislative formalities, will continues to work its way through the legislative process after which that Act would come into force over a phased transition period starting in late 2025.

And it’s not just the Cybersecurity and Cyber Resilience Acts that are moving along: a consultation process for “Tranche 2” of the EU’s DORA technical standards is expected in the coming months, Member States are continuing to work to implement NIS 2 by the October 2024 deadline, and discussions on the EU Cybersecurity Scheme for Cloud Services are ongoing, all of which sets up 2024 to be yet another busy year for cybersecurity regulation in Europe.


Covington’s Privacy and Cybersecurity Practice regularly advises on cybersecurity issues across Europe, including NIS 2 and DORA. If you have any questions about how the raft of new European cyber regulations will affect your business, or about developments in the cybersecurity space more broadly, our team would be happy to discuss.

Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.
Photo of Aleksander Aleksiev Aleksander Aleksiev

Aleksander advises clients on legal problems associated with data protection, cybersecurity, and new technologies. He holds degrees in both law and computer engineering which he combines to provide advice that is both legally sound and technologically pragmatic.

Aleksander has advised companies, governments, and…

Aleksander advises clients on legal problems associated with data protection, cybersecurity, and new technologies. He holds degrees in both law and computer engineering which he combines to provide advice that is both legally sound and technologically pragmatic.

Aleksander has advised companies, governments, and charitable organizations on a range of technology law issues including data breach response, compliance with privacy and cybersecurity laws, and IT contract negotiations. In addition to his experience advising on European law, Aleksander is Australian-qualified and has significant experience advising clients in the Asia-Pacific – particularly on Australian and Hong Kong law.

Photo of Bart Szewczyk Bart Szewczyk

Having served in senior advisory positions in the U.S. government, Bart Szewczyk advises on European and global public policy, particularly on technology, trade and foreign investment, business and human rights, and environmental, social, and governance issues, as well as conducts international arbitration. He…

Having served in senior advisory positions in the U.S. government, Bart Szewczyk advises on European and global public policy, particularly on technology, trade and foreign investment, business and human rights, and environmental, social, and governance issues, as well as conducts international arbitration. He also teaches grand strategy as an Adjunct Professor at Sciences Po in Paris and is a Nonresident Senior Fellow at the German Marshall Fund.

Bart recently worked as Advisor on Global Affairs at the European Commission’s think-tank, where he covered a wide range of foreign policy issues, including international order, defense, geoeconomics, transatlantic relations, Russia and Eastern Europe, Middle East and North Africa, and China and Asia. Previously, between 2014 and 2017, he served as Member of Secretary John Kerry’s Policy Planning Staff at the U.S. Department of State, where he covered Europe, Eurasia, and global economic affairs. From 2016 to 2017, he also concurrently served as Senior Policy Advisor to the U.S. Ambassador to the United Nations, Samantha Power, where he worked on refugee policy. He joined the U.S. government from teaching at Columbia Law School, as one of two academics selected nationwide for the Council on Foreign Relations International Affairs Fellowship. He has also consulted for the World Bank and Rasmussen Global.

Prior to government, Bart was an Associate Research Scholar and Lecturer-in-Law at Columbia Law School, where he worked on international law and U.S. foreign relations law. Before academia, he taught international law and international organizations at George Washington University Law School, and served as a visiting fellow at the EU Institute for Security Studies. He also clerked at the International Court of Justice for Judges Peter Tomka and Christopher Greenwood and at the U.S. Court of Appeals for the Third Circuit for the late Judge Leonard Garth..

Bart holds a Ph.D. from Cambridge University where he studied as a Gates Scholar, a J.D. from Yale Law School, an M.P.A. from Princeton University, and a B.S. in economics (summa cum laude) from The Wharton School at the University of Pennsylvania. He has published in Foreign AffairsForeign PolicyHarvard International Law JournalColumbia Journal of European LawAmerican Journal of International LawGeorge Washington Law ReviewSurvival, and elsewhere. He is the author of three books: Europe’s Grand Strategy: Navigating a New World Order (Palgrave Macmillan 2021); with David McKean, Partners of First Resort: America, Europe, and the Future of the West (Brookings Institution Press 2021); and European Sovereignty, Legitimacy, and Power (Routledge 2021).

Photo of Elżbieta Bieńkowska Elżbieta Bieńkowska

Elżbieta Bieńkowska is a senior advisor in the firm’s Brussels office. Elżbieta, a non-lawyer, served as European Commissioner for the Internal Market, Industry, Entrepreneurship and SMEs in Jean-Claude Juncker’s team from 2014 to 2019. In that capacity, she was responsible for much of…

Elżbieta Bieńkowska is a senior advisor in the firm’s Brussels office. Elżbieta, a non-lawyer, served as European Commissioner for the Internal Market, Industry, Entrepreneurship and SMEs in Jean-Claude Juncker’s team from 2014 to 2019. In that capacity, she was responsible for much of the European Commission’s regulatory activity that affects the EU’s 450 million citizens, and all companies doing business in the EU. Elżbieta oversaw all product regulation in the EU, setting the rules for goods and services in sectors as diverse as chemicals, cars, electronics, IT infrastructure, machines, medical devices, and hydrogen. She managed the EU’s treatment of IP, led the Commission’s extensive work on standardization, and ran the EU’s industrial policy.

Before joining the European Commission, Elżbieta served as Minister for Infrastructure and Development of Poland as well as Deputy Prime Minister. In this role, she was in charge of the allocation of European Union funding and responsible for significant investments in Poland’s transport infrastructure.