NIS2 Penalties and Fines: A Comparative Analysis Across EU Member States

Understanding how different member states have implemented NIS2's penalty framework is essential for compliance planning, risk quantification, and board-level governance. This analysis examines the approaches taken by Italy, Germany, and France — three of the largest EU economies with distinct regulatory traditions — and identifies the practical implications for organisations subject to NIS2 obligations.

The NIS2 Penalty Framework

NIS2 establishes maximum penalty thresholds that member states must meet or exceed. For essential entities, fines may reach a maximum of at least €10 million or 2% of total worldwide annual turnover, whichever is higher. For important entities, the maximum is at least €7 million or 1.4% of total worldwide annual turnover. These are floors, not ceilings — member states may impose higher penalties if they choose.

The Directive also requires member states to establish provisions for periodic penalty payments to compel compliance with binding instructions issued by competent authorities. Additionally, NIS2 introduces the possibility of holding natural persons — specifically management body members — personally liable for failures to comply with cybersecurity risk management and reporting obligations. The scope and mechanism of personal liability varies considerably across member states.

Italy: The Legislative Decree Approach

Italy transposed NIS2 through Legislative Decree 138/2024^[2], designating the Agenzia per la Cybersicurezza Nazionale (ACN) as the primary competent authority. Italy's implementation adheres closely to the Directive's minimum penalty thresholds, with maximum fines of €10 million or 2% of global turnover for essential entities and €7 million or 1.4% for important entities.

Italy's transposition introduces a structured graduated enforcement model. The ACN is empowered to issue warnings, binding instructions with compliance deadlines, orders to implement specific security measures, and administrative fines. The legislation establishes criteria for determining fine amounts, including the gravity and duration of the infringement, the number of affected users, the degree of responsibility, previous infringements, and measures taken to mitigate damage.

Notably, Italy's implementation includes provisions for management liabilitythat go beyond the Directive's minimum requirements. Members of management bodies of essential entities who fail to ensure compliance with cybersecurity risk management obligations may face personal sanctions, including temporary prohibition from exercising managerial functions. This provision has particular significance for directors and officers of entities within private equity portfolios operating in Italy.

Germany: Federal and Sectoral Complexity

Germany's NIS2 transposition through the NIS2 Implementation and Cybersecurity Strengthening Act (NIS2UmsuCG) reflects the country's federal structure and established regulatory landscape. The Bundesamt für Sicherheit in der Informationstechnik (BSI) serves as the primary competent authority, building on its existing role under the original NIS Directive and the IT Security Act 2.0.

Germany has opted for penalty levels at the NIS2 minimum thresholds but has introduced a more granular categorisation of violations. The legislation distinguishes between failures in risk management measures, failures in incident reporting obligations, failures to cooperate with authorities, and failures to implement binding instructions. Each category carries different base penalty ranges, providing greater predictability for regulated entities but also creating a more complex compliance landscape.

The German implementation also addresses the interaction between NIS2 penalties and sector-specific regulatory regimes. For entities in the financial sector already subject to DORA^[3], or energy sector entities regulated under the Energy Industry Act, the legislation clarifies jurisdictional boundaries to avoid double regulation. This coordination is particularly relevant for infrastructure funds with German portfolio companies operating across regulated sectors.

France: Administrative Authority and Proportionality

France's transposition maintains the Agence nationale de la sécurité des systèmes d'information (ANSSI) as the lead competent authority while establishing a separate enforcement commission to ensure independence in penalty decisions. France has adopted the NIS2 minimum penalty thresholds but has placed particular emphasis on proportionality principles in enforcement.

The French approach prioritises remediation over punishment. ANSSI is empowered to issue compliance notices with specific deadlines, during which no penalty proceedings may be initiated. Only if the entity fails to remedy identified deficiencies within the prescribed period does the enforcement commission consider financial penalties. This graduated approach provides organisations with a meaningful opportunity to achieve compliance before facing financial sanctions.

France's implementation includes notable provisions regarding supply chain obligations. Essential and important entities must demonstrate that they have assessed the cybersecurity practices of their critical suppliers and taken appropriate measures to manage supply chain risk. Failure to do so constitutes an independent basis for enforcement action, separate from any incident-triggered investigation. For organisations with complex European supply chains, this provision extends NIS2 compliance obligations beyond the organisation's own boundaries.

Management Liability Across Jurisdictions

NIS2's requirement for member states to ensure that management bodies can be held liable for infringements has been transposed with varying degrees of severity. The personal liability dimension represents one of the most significant changes from the original NIS Directive and warrants particular attention from directors and officers of entities within scope.

Italy's approach is among the most stringent, with explicit provisions for personal sanctions including suspension from managerial functions. Germany has adopted a more measured position, focusing management liability on the obligation to approve and oversee cybersecurity risk management measures, with personal penalties linked to wilful or grossly negligent failures. France has emphasised institutional liability over personal liability, though management may face consequences under general corporate governance principles if their negligence contributed to a sanctioned non-compliance.

For organisations with operations across multiple member states, the most stringent jurisdiction effectively sets the standard. A director who serves on the board of entities in both Italy and Germany must comply with Italy's more demanding management liability provisions for the Italian entity, regardless of the approach taken in other jurisdictions. This underscores the importance of jurisdiction-specific compliance assessments rather than a single pan-European approach.

Practical Implications for Multi-Jurisdictional Entities

Organisations operating across EU member states should conduct a jurisdiction-by-jurisdiction gap analysis that maps their operations against each applicable national transposition. This analysis should identify which entities fall within scope, whether as essential or important entities, in each jurisdiction; the specific obligations applicable in each member state; the penalty regime and enforcement approach of each competent authority; and the management liability provisions that affect directors and officers.

The compliance programme should establish a baseline aligned with the most demanding jurisdiction, supplemented by jurisdiction-specific measures where national transpositions impose additional requirements. This approach is more efficient than maintaining entirely separate compliance frameworks for each jurisdiction and ensures that the organisation meets its obligations across its entire European footprint. Regular monitoring of enforcement actions and regulatory guidance across relevant jurisdictions will be essential as NIS2 enforcement matures and competent authorities develop their supervisory approaches.