Court ruling: Free access to harmonised standards

Must access to harmonised standards be free of charge once they have been listed in the EU Official Journal? This 2019 demand by two organisations culminated in a case before the European General Court (EGJ).

In July 2021, a judgement was finally handed down which is of interest to users of harmonised standards. In the meantime, a German transcript of the court ruling is also available. You will find some background information in the following article.
 

Facts of the case

Two non-profit organisations filed a complaint with the European General Court after they were denied free access to requested harmonised standards by the EU Commission.

The organisations referred to Recital 4, Article 1 of Regulation 1049/2001 (EC), which states that it is in the public interest to grant "widest possible access to documents held by the institutions of the Union".

This also includes such documents that the EU Commission receives from third parties, namely - as in the case of the complaint - from the European standards institutes CEN and CENELEC.

Furthermore, the applicants argued that harmonised standards would be part of Union law with their listing in the EU Official Journal. Such a "legal text" had to be made available to the public free of charge and excluded from copyright. In doing so, they invoked recital 4, Article 2 of the above-mentioned Regulation, namely that access to legal documents constitutes a "predominantly public interest".
 

Judgment of the EGC

The European General Court dismissed the organisations' action. This was justified, among other things, by the fact that access to documents can be restricted according to 1049/201 (EC) if intellectual property of natural or legal persons - in this case of the standardisation organisations - is thereby impaired. Here, the "commercial interests of CEN or its national members" are used as justification, since they also pursue a commercial interest with the creation and publication of harmonised standards.

The part of the complaint that free access to standards was in the public interest was therefore rejected because, according to the EU Commission, "there is no overriding public interest in the dissemination of the requested harmonised standards". Another aspect of the ruling addressed the accusation that harmonised standards, as part of Union law, had to be free of charge. Here, the court pointed out that standards merely constitute a technical specification, but their application is not legally obligatory. Thus, the action was dismissed on all points. According to the ruling, free access to harmonised standards is not in a predominantly public interest and the intellectual property of the European and national standards organisations remains protected. It follows from this that users of standards must continue to purchase the documents via a national standards institute.
 

Link to the judgementl

Interested readers can read the entire court ruling on the EGC page. You will find the link here.
 

Objection and closing statement

The judgement has been appealed in the meantime. You can find more information on this in our technical article regarding the Advocate General's recommendation on free standards.
 

Tip:

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Footnote:
¹See Regulation 1049/2001 (EC): EUR-Lex - 32001R1049 - EN - EUR-Lex (europa.eu)

Posted on: 2023-06-26 (Last amendment)