ECJ: standards must be free

The European Court of Justice has decided that citizens must be able to read the standards that list the specifications for products across the EU free of charge.

By Anne Kieserling

The European Court of Justice (ECJ) has decided that harmonised technical standards that lay down specifications for products are part of EU law and as such they have to be accessible free of charge.

The case

This involved harmonised technical standards (HTS) for toy safety. Two companies demanded free access to them. Currently, companies and individuals can normally only purchase such HTS from standardisation organisations, such as the Deutsche Institut für Normung (DIN) (German Institute for Standardisation) in Germany.

The EU Commission refused free access and argued that harmonised standards were copyright-protected.

The verdict

The European judges decided that HTS for toy safety are part of EU law. This being so, citizens had a right to free access to them according to Art. 2 of the Regulation (EC) no. 1049/2001 (Regulation regarding public access to European Parliament, Council and Commission documents). EU citizens should be familiar with important standards in order to be informed of their rights and obligations.

In this way, they could also check whether a product or service complied with requirements. In its judgment, the ECJ expressly left open whether the HTNs are protected by copyright.

Public interest trumps copyright

The ECJ did not share the concerns of the EU Commission regarding copyright. Admittedly, according to Regulation EC no. 1049/2001, public access to a document could be refused if this led to the business interests of a person being impaired.

But the greater public interest in publication took precedence here.

Major effects on business?

As things stand, the European and national standardisation organisations that carry out the standardisation procedures, such as DIN in Germany, sell the standards to business. The verdict puts their business model at risk since they could as a result be obliged to publish free of charge.

DIN and the DKE (German Commission for Electrical, Electronic & Information Technologies of DIN and VDE) are correspondingly critical of the decision. In their view, it fails adequately to take into account the risks for private enterprise standardisation and the consequences for the companies.

The business law firm Morrison Foerster, which secured the verdict, was convinced that it "will have far-reaching effects beyond the specific legal dispute." The EU Commission would now have to grant free access to all harmonised standards, according to the press release of the law firm. This would require "a complete reorganisation of the European standardisation system."

European Court of Justice, verdict of 5 March 2024, file ref C-588/21 P

The author is a lawyer and specialist editor at Verlagsanstalt Handwerk.