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Initial situation
The so-called "Malamud" case was entering its third round! In July 2021, two organisations' request for free access to harmonised standards was rejected by the European General Court (EGC) on the grounds of intellectual property protection (standards are created by standardisation organisations under copyright law).
After the appeal against the ruling, the recommendation of EU Advocate General Medina followed in June 2023: harmonised standards are part of Union law and the application of these documents is equivalent to compliance with binding rules.
Judgment of the ECJ on 5 March 2024
The European Court of Justice has ruled that the access to the 4 requested harmonised standards discussed in the case must be granted to the plaintiff (including under the Toys Directive 2009/48/EC). The Commission's original decision to refuse to disclose the documents is annulled. Here, the Court recalls that every citizen of the EU and every natural or legal person must be granted access to documents held by the EU Commission. In the case in question, the requested documents form part of EU law, as the EU Commission gives these standards legal effect by publishing them in the Official Journal of the EU. Under the principle of the rule of law and free access to justice, the ECJ argues that citizens should familiarise themselves with the content of the standards so that they can check whether a product complies with the requirements of the underlying legislation. This legal effect conferred by the said legislation is one of the essential characteristics of these standards and makes them an indispensable tool for economic operators to exercise the right to free movement of goods and services on the EU market. This results in an overriding public interest in the harmonised standards within the meaning of the last sentence of Article 4(2) of Regulation No 1049/2001, which justifies the disclosure of the requested harmonised standards.
Interpretations of the judgement
On the part of the standardisation organisations, the judgment is interpreted to the effect that the judgment does not call into question the fact that harmonised standards are subject to copyright protection.1 One of the main arguments of both the plaintiffs and the Advocate General was the general removal of this protection and would have meant free access for all documents. Furthermore, it is not questioned that access to documents under Regulation 1049/2001 is without prejudice to existing copyright rules which may restrict the right of third parties to reproduce or use authorised documents.
The lawyers for the plaintiffs, on the other hand, see the ruling as a "complete reorganisation of the European standardisation system".2 According to them, the ruling would require free access to all harmonised standards published in an EU Official Journal. According to them, this would mean that the EU Commission would have to "grant free access to all harmonised standards", as these documents are part of EU law.
Summary of the judgement
Possible effects
In the run-up to the ECJ judgement, much had already been said about the effects of a possible ruling. Free access to harmonised standards for the general public would represent a paradigm shift in European standardisation. The consequences could be as follows:
Chronology of events
We are closely monitoring the results of the court judgement and will immediately review the consequences for the provision of standards in full text on the Safexpert Live Server. As things stand, only the publication of the 4 harmonised standards to the plaintiffs is affected by the current ruling. It is unclear to what extent the case will set a precedent for further such actions, for example for harmonised standards under the Machinery Directive. In our newsletter, the CE-InfoService, we will inform you immediately as soon as we have new information on this topic.
Interested readers can read the entire judgement on the website of the European Court of Justice (ECJ). There you will also find a press release on the case.
Footnotes:1 See Statement by CEN/CENELEC on the judgement of 5 March 2024
2 See Press release of the lawyers of Public.Resource.Org, Inc. and Right to Know CLG
Posted on: 2024-11-03
Daniel Zacek-Gebele, MSc Produktmanager bei IBF für Zusatzprodukte sowie Datenmanager für die Aktualisierung der Normendaten am Safexpert Live Server. Studium der Wirtschaftswissenschaften in Passau (BSc) und Stuttgart (MSc) im Schwerpunkt International Business and Economics.
E-Mail: daniel.zacek-gebele@ibf-solutions.com | www.ibf-solutions.com
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