Recital 66

Recital 66

Digital Operational Resilience Act · UE 2022/2554

(66)

A thorough pre-contracting analysis should underpin and precede the formal conclusion of contractual arrangements, in particular by focusing on elements such as the criticality or importance of the services supported by the envisaged ICT contract, the necessary supervisory approvals or other conditions, the possible concentration risk entailed, as well as applying due diligence in the process of selection and assessment of ICT third-party service providers and assessing potential conflicts of interest. For contractual arrangements concerning critical or important functions, financial entities should take into consideration the use by ICT third-party service providers of the most up-to-date and highest information security standards. Termination of contractual arrangements could be prompted at least by a series of circumstances showing shortfalls at the ICT third-party service provider level, in particular significant breaches of laws or contractual terms, circumstances revealing a potential alteration of the performance of the functions provided for in the contractual arrangements, evidence of weaknesses of the ICT third-party service provider in its overall ICT risk management, or circumstances indicating the inability of the relevant competent authority to effectively supervise the financial entity.

Luxembourg specificity
loi du 1er juillet 2024 portant mise en oeuvre du reglement (UE) 2022/2554 (DORA) et circulaire CSSF 22/806

In Luxembourg, the CSSF anticipated the spirit of Recital 66 through CSSF Circular 22/806 on outsourcing arrangements, which already requires a documented pre-contracting analysis and prior notification for any material ICT outsourcing. Since DORA's application on 17 January 2025, the law of 1 July 2024 implementing DORA designates the CSSF and the CAA as competent authorities and confers on them administrative sanction powers reaching 1% of the average daily turnover of the critical third-party provider.

Luxgap practice: in any Luxembourg ICT pre-contracting file, we merge CSSF 22/806 requirements (notification, outsourcing register, tested exit plan) with those of DORA Recital 66 into a single enforceable deliverable, avoiding dual drafting and divergences between the two frameworks.