DORA: key contractual clauses for access, inspection and audit of ICT providers

The Digital Operational Resilience Act (DORA) Regulation establishes a robust regulatory framework to ensure the digital operational resilience of the financial sector. Within this framework, contracts for the provision of ICT services that support essential or important functions become crucially relevant. Beyond the already mentioned contractual clauses, it is essential that these contracts include specific provisions guaranteeing the rights of access, inspection, and audit by the financial entity.

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Why Are These Rights Important?

These rights are important for the following reasons:

1) Monitoring Provider Performance:

The rights of access, inspection, and audit enable financial entities to continuously monitor the performance of third-party ICT service providers, verifying compliance with agreed service levels and the adoption of necessary security measures.

2) Early Risk Identification:

Through inspections and audits, financial entities can promptly identify potential vulnerabilities or contractual breaches that may jeopardize their operations.

3) Regulatory Compliance:

These rights allow financial entities to demonstrate to competent authorities that they are complying with the requirements set forth in the DORA Regulation and other applicable regulations.

4) Strengthening Contractual Relationships:

By clearly establishing the rights of access and audit, the contractual relationship between the financial entity and the third-party ICT service provider is strengthened, fostering transparency and trust.

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Scope of Access, Inspection, and Audit Rights

Access, inspection, and audit rights allow:

1. Access to Information and Systems: Financial entities must have the right to access information and systems of the provider that are relevant to the provision of the contracted services.
2. Inspection of Facilities: Financial entities or a third party designated by them must have the right to inspect the provider’s facilities where the services are delivered.
3. Audits: Financial entities must be able to conduct periodic audits of the provider’s systems and processes, including the review of documentation and the performance of tests.
4. Copy of Information: Financial entities must have the right to make copies of relevant information for the provision of services as part of monitoring and control activities.
5. Provider Cooperation: The third-party ICT service provider must fully cooperate with the financial entity during inspections and audits, providing all necessary information and access.

Intervention by the Competent Authority:

In addition to the rights of financial entities, the DORA Regulation also provides for the possibility that the competent authority of the financial entity may conduct inspections and audits of the third-party ICT service provider, upon notification. This mechanism allows authorities to oversee compliance with regulations and ensure the protection of consumer interests.

In Conclusion:

The rights of access, inspection, and audit are fundamental tools for financial entities to ensure the digital operational resilience of their services. By including these provisions in contracts with third-party ICT service providers, financial entities can exercise greater control over technology-related risks and comply with the requirements established in the DORA Regulation.

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