§61 + §64 BSIG

Objection to a BSI notice under NIS 2

The procedural framework for Widerspruch and Anfechtungsklage against a notice issued under §61 BSIG. Descriptive only, not legal advice.

Simon OrzelSimon Orzel·

What this page covers

Under §61 BSIG the BSI may issue a formal notice, a Bescheid, against an entity in scope of NIS 2. The notice is an administrative act in the sense of §35 VwVfG and is therefore subject to the general administrative challenge routes of the Verwaltungsgerichtsordnung (VwGO).

Two challenge routes exist. The first is the Widerspruch under §68ff. VwGO, an administrative objection filed with the authority that issued the act. The second is the Anfechtungsklage under §42 VwGO before the competent Verwaltungsgericht. Both routes follow statutory time limits and form requirements.

This page describes the framework. It does not recommend whether or how to act in a concrete case. Concrete steps depend on the wording of the notice, the entity, the sector and the legal advice of counsel admitted in the jurisdiction.

Legal anchor
The EU layer empowers supervision and enforcement. The BSIG transposes the supervisory powers into German law. The VwGO provides the general procedural rights against administrative acts.

Directive (EU)

Article 32 NIS 2 lists the supervisory and enforcement measures that Member States must make available against essential entities, including instructions, binding orders and administrative fines.

The directive does not regulate the procedural challenge route. That layer is left to national administrative procedure law.

BSIG

§61 BSIG sets out the supervisory powers of the BSI and the form of measures the agency may take. §64 BSIG sets out the cooperation duty of the addressee.

The Bescheid is the typical instrument under §61 BSIG when the agency wants to bind an entity to a concrete measure. Cooperation duties under §64 BSIG run in parallel and are not suspended by an objection.

VwGO (procedure)

§68 VwGO opens the Widerspruchsverfahren as the standard objection route. §70 VwGO sets a one month time limit from service. §74 VwGO sets a one month time limit for the Anfechtungsklage. §80(1) VwGO grants suspensive effect as the default, with §80(2) listing exceptions.

These provisions apply to any administrative act under federal law, including a BSI notice, unless a specific statute departs from them.

The three procedural elements
A notice, an objection, a court action. Each step has its own legal basis and time frame.
§61 BSIG

The notice (Bescheid)

A written or electronic administrative act from the BSI. It states the addressee, the legal basis, the ordered measure, the reasoning and a Rechtsbehelfsbelehrung that names the available remedies and time limits.

§68ff. VwGO

Objection (Widerspruch)

An administrative objection lodged in writing with the issuing authority. §70 VwGO sets the standard time limit at one month from service. The authority can confirm, modify or rescind the act through a Widerspruchsbescheid.

§42, §74 VwGO

Court action (Anfechtungsklage)

A challenge filed with the competent Verwaltungsgericht. §74 VwGO sets a one month time limit from service of the Widerspruchsbescheid. The court can fully review the legality of the underlying notice.

Two principles around the procedure
Time limits run from service. The cooperation duty under §64 BSIG continues regardless of the challenge.

Time limits run from service

Under §70 VwGO and §74 VwGO the relevant period is one month, counted from the date the notice or the Widerspruchsbescheid is served on the addressee. The exact calculation follows §57 VwGO and §31 VwVfG in conjunction with §187ff. BGB.

Cooperation duty continues

§64 BSIG obliges the addressee to provide information and access to the BSI. This duty is independent of an objection. A challenge against the notice does not by itself release the entity from the cooperation duty.

Who does what
The supervisory authority issues the notice. The administrative courts review it. ENISA does not have a national enforcement role.
DE

BSI

The Bundesamt für Sicherheit in der Informationstechnik issues notices under §61 BSIG and acts as the Widerspruchsbehörde for its own decisions. Service is typically by formal Zustellung under the Verwaltungszustellungsgesetz.

DE

Verwaltungsgericht

The Anfechtungsklage under §42 VwGO is filed with the territorially competent Verwaltungsgericht. The seat of the BSI in Bonn is one common venue, but jurisdiction follows the rules of §52 VwGO.

EU

ENISA

ENISA supports Member States with guidance and threat intelligence under Article 7 NIS 2. The agency does not issue notices against entities and has no role in the German Widerspruchsverfahren.

Common pitfalls
What the framework looks like when it goes wrong. Each item is a pattern observed in administrative procedure, not advice on what to do.

  • Wait and see how the BSI reacts

    The §70 VwGO one month time limit runs from service. If no objection or court action is filed within that period, the notice becomes bestandskräftig and the substance can no longer be challenged through the standard route.

  • Internal team can draft the objection

    A Widerspruch is a formal legal act. The reasoning frames the later court action. Without counsel admitted in administrative procedure law the entity risks weakening its own position in any subsequent Anfechtungsklage.

  • A phone call to the BSI is enough

    An informal exchange does not interrupt or extend the §70 VwGO time limit. Only a written objection that meets the form requirements of §70 VwGO can preserve the procedural position.

Practitioner note

This page describes the procedural framework only. Concrete decisions about whether and how to challenge a BSI notice require legal counsel admitted in the jurisdiction. The framework is intentionally general because the right step depends on the wording of the notice, the entity, the sector and the surrounding facts.

What an entity can do in advance is operational. Keep service records, keep a register of administrative correspondence with the BSI, and run an internal escalation path that brings any incoming Bescheid to management and counsel on the day it arrives. This protects the procedural position regardless of the substantive decision later.

What the platform does

The platform documents the entity, its sector classification, its supplier set and its measures under Article 21 NIS 2 in a single register. If a Bescheid arrives, this register is the evidence base for the response and for any later proceedings.

The platform does not draft objections and does not replace counsel. It produces the operational record that counsel needs to assess the notice and to prepare any procedural step.

Sources
  • Directive (EU) 2022/2555 (NIS 2), Article 32 — supervisory and enforcement measures regarding essential entities. EUR-Lex.
  • BSIG, §61 — supervisory powers of the BSI. gesetze-im-internet.de.
  • BSIG, §64 — cooperation duty. gesetze-im-internet.de.
  • VwGO, §42 — Anfechtungsklage. gesetze-im-internet.de.
  • VwGO, §68 — Widerspruchsverfahren. gesetze-im-internet.de.
  • VwGO, §70 — Widerspruchsfrist, one month from service. gesetze-im-internet.de.
  • VwGO, §74 — Klagefrist, one month from service of the Widerspruchsbescheid. gesetze-im-internet.de.
  • VwGO, §80 — suspensive effect and exceptions. gesetze-im-internet.de.
  • VwVfG, §35 — definition of the administrative act. gesetze-im-internet.de.
  • Verwaltungszustellungsgesetz — service of administrative documents. gesetze-im-internet.de.
First step in the platform
Map the entity, the sector classification and the supplier set. The same register supports an evidence-based response if a Bescheid arrives.
Run the applicability check