The Fall of The Great Paywall for EU Harmonised Standards

In case C-588/21 P, the CJEU dismantled a foundational axiom of the European Standardisation System (ESS): the paywall of harmonised standards. The Court confirmed that harmonised standards are an integral part of EU law, mandating their free accessibility. Yet, the reach of this ruling remains somewhat ambiguous. In this commentary, I critically examine the judgement and its implications. Ultimately, I posit that the Court’s decision imposes a proactive publication obligation and challenges the existing copyright protection afforded to harmonised standards.

A short review of the ESS

The ESS, anchored now in Regulation 1025/2012, has been a key regulatory framework of the internal market for goods ever since the 1980s’ New Approach. At its core lies one premise: a public-private cooperation. On the one side, the EU legislator articulates essential risk regulation requirements in secondary legislation. On the other, the European Standardisation Organisations (ESOs) – CEN, CENELEC, and ETSI – develop technical standards giving effect to these essential requirements at the Commission’s request. Subsequently, the Commission reviews whether the standards’ content complies with its request and publishes a reference to the standards – not their content – in the Official Journal (OJ) through Implementing Decisions. Once published, manufacturers using these referenced standards enjoy a presumption of conformity with the essential requirements set in secondary legislation. However, their use, at least in theory, is voluntary (see Art. 2 of Regulation 1025/2012). In addition to this system, some references to (European or other) standards may also be found directly in EU legislative acts, and their use is mandatory. In either case, their access has been subject to copyright restrictions – mainly a fee – determined by standard-setting bodies.

Accessing the content of these standards may be fundamental for producers to place their products on the market due to the conformity presumption they confer. Sometimes, compliance with the standards is even directly mandatory. Moreover, it might even be imperative for consumers to assess the safety and legality of products. However, in all cases, a noteworthy limitation has persisted until now in this co-regulatory framework. Namely, the public at large has not always enjoyed free access to these referenced or harmonised standards.

In the following, I will refer, for simplicity, to both types of standards – those directly referenced in legislative acts and those referenced in Commission Implementing Decisions – as harmonised or referenced standards.

Background of the Judgement

In 2018, two NGOs (Public.Resource.Org and Right to Know) requested the Commission for access to four harmonised standards that support the Toy Safety Directive and the REACH Regulation, based on Regulation 1049/2001. The Commission rejected their request under Article 4(2) of the Regulation, asserting the ESO’s copyrights over the standards and the lack of an overriding public interest that could justify the disclosure. The General Court (GC) later confirmed this decision in its judgement in T-185/19 (see this analysis for further details). The applicants appealed the decision and ultimately disputed the existence of CEN’s copyrights and alleged a lack of an overriding public interest in accessing the standards.

Reasoning of the Court

On 5 March 2024, in case C-588/21 P, the CJEU issued its response and acknowledged (paras. 65-69) that the Treaties provide citizens with the right to access documents of EU institutions and bodies, which is further developed in Regulation 1049/2001. However, it noted that access may be refused where it undermines a third-party commercial interest, particularly copyrights, unless superseded by public interest.

Addressing this public interest, the Court, similarly to James Elliott, reaffirmed the status of harmonised standards as “part of EU law” due to their mandatory legal effects. It brought two core arguments. First, the Commission plays a central role in the standardisation process. Although standards are drafted by the ESOs, the Commission starts, finances, and supervises the process, determines content requirements and deadlines, and ultimately decides on the publication of their references (para. 72-73). Accordingly, with its decision to publish the references, the Commission has already brought standards into EU law. Second, adding to this, referenced standards create de jure or de facto mandatory effects. Some legislative measures directly contain references to standards and prescribe their use – e.g. the REACH Regulation standard or ISO standards referenced in the Tobacco Products Directive. In addition, other referenced standards (e.g., toy safety standards) often become mandatory in practice due to the conformity presumption they confer and a lack of/high cost of alternatives (paras. 74-80). This makes it “difficult, or even impossible, for economic operators” to opt for different means of compliance (para. 75). Consequently, the Court identified that both types of referenced standards specify individual rights and obligations and are necessary to verify whether a product or service complies with essential requirements (para. 82).

Building on the status of standards in EU law, the Court raised two further points. First, it affirmed that the EU is based on the rule of law, requiring free access to EU law (paras. 71 and 81-82). In this vein, it referred to paras. 41 and 48 of the Stichting Rookpreventie where it emphasised the need for publishing referenced standards in their entirety to ensure legal certainty, namely for individuals to understand their rights and obligations and verify legal compliance. Thus, referenced standards can only become binding on the public at large if they themselves are published in the OJ (para. 71). Second, the Court noted that the right to access documents is an expression of openness and transparency. It functions as a democratic and legitimising mechanism that links citizens with decision-making processes through accountability (paras. 83-84).

Considering these elements, the Court concluded that the GC and the Commission should have found an overriding public interest. Namely, they should have found there was a demand for legal certainty in light of the legal status of harmonised standards, as well as the principles of the rule of law and openness (para. 86 and 89). Therefore, the Court overturned the GC’s judgement and annulled the Commission’s decision.

Analysis

Now that we have examined the Court’s rationale, we can delve into the judgement’s implications. As mentioned in the beginning, the judgement comes to dismantle the paywall of standards, at least for CEN and CENELEC. Yet, its scope remains somewhat ambiguous, begging two questions. First, does free access refer to the full publication of standards in the OJ, or is it merely related to the right to access documents? Second, are harmonised standards still subject to copyright protection?

These two questions arise because the Court, in its concluding paragraphs, determined only that the GC and the Commission should have granted the request to access documents with no explicit mention of publication. Moreover, the Court did not directly address the applicants’ argument that harmonised standards, as part of EU law, cannot enjoy copyright protection. Amidst this ambiguity, I argue that the Court’s reasoning implicitly demands the standards’ publication in the OJ, rather than solely a disclosure upon request. Moreover, I advance that it challenges the ESO’s copyrights.

Standards must be published in full

As regards the first question, we must note that the dispute and petitum of the case regarded the right to access documents. Not surprisingly, the Court determined this aspect rather than deciding whether referenced standards must be published in the OJ. Yet, while the Court’s conclusion is reserved for the applicants’ right to access documents, it still explicitly addresses the question of publication. In para. 71, it recalls, following Stichting, that standards are binding on the general public only if published in the OJ. Nevertheless, this does not automatically or necessarily mean that standards must be published.

One might argue, as Gérardy did, that the Court’s prior ruling in Stichting regarding publication applies solely to de jure mandatory standards. However, the Court’s current decision makes no distinction between de facto and de jure mandatory standards (see paras. 74-80). It takes their legal effects as the sole relevant factor. Yet, even in this case, while referenced standards become mandatory for individuals only when published (Stichting, para. 48), their publication is unnecessary for economic operators who have access to their official and authentic versions (Stichting, para. 52). Thus, one could argue that in the end the publication of the standards is not necessary since the ultimate addressee is a producer wishing to place its product on the market. In response, the Court’s current ruling emphasised that standards produce legal effects for both manufacturers and individuals as they specify rights and obligations, as well as help verify compliance with essential requirements (paras. 81, 83). In this sense, see also the Dutch court’s decision in Stichting, as well as AG Medina’s Opinion (para. 39-41 and 44). Henceforth, publication remains necessary if standards produce inescapable legal effects for all stakeholders.

Furthermore, the Court separately – but still complementarily – addressed free access to EU law as a rule of law requirement (paras. 81-82) and disclosure of documents as a transparency requirement (paras. 83-84), applying both principles to referenced standards. When discussing the former, the CJEU specifically referred to Stichting (para. 41), where it discussed the demand for publication in the OJ to ensure legal certainty. Ultimately, if compliance with the law is demanded, then legal certainty must be provided. Citizens must be able to ascertain what the law is, particularly their individual rights and obligations, without any additional burdens and resources. Yet, a request to access documents implies such burdens. In this context, publicity acquires a more preponderant role. Bluntly put, harmonised standards, once part of EU law, must be published in the OJ.

The Decision challenges the ESO’s copyrights

As regards the second question, CEN and CENELEC maintain that the Court’s decision does not impact their copyrights because the Court did not address the applicants’ first plea on the issue of copyright protection (see their reaction statement). On the contrary, I argue that the Court addressed this issue implicitly in several instances, which is the reason why it concluded that it was not “necessary to examine the first ground of appeal” (para. 87).

If, as CEN and CENELEC contend, they would still retain control over reproduction, use, and distribution, the decision’s effectiveness demanding publicity and free access could be jeopardised. The Court reaffirmed that referenced standards are part of EU law and it explicitly concluded that commercial interests, in particular the ESO’s copyrights, must be superseded by legal certainty as a public interest. Such a conclusion is already a waiver on copyright protection as the decision clearly establishes that copyrights can in no way protect against or limit the publicity and access to standards as part of EU law.

In addition, one could argue that waiver discussed above affects only the protection of the ESO’s copyrights, rather than the existence of copyrights as such. However, the Court may have reasonably implied that referenced standards are attributable to EU institutions, thereby further challenging the notion of ESO’s copyrights – in line with the Opinions of AGs Campos Sánchez-Bordona (paras. 40-63) and Medina (paras. 16-32). It is true that the Court previously held in James Elliott that standards are adopted by bodies falling outside the category of EU institutions, bodies, or agencies (para. 34). Yet, as AG Medina (para. 19) rightly pointed out, in James Elliott, the Court did not address whether standards can eventually be attributed to the Commission. In covering this gap, the Court acknowledged in the current case the Commission’s central role and control in the standardisation process, especially regarding the decision to publish the references (para. 72-73). It acknowledged, thus, that it is the Commission that ultimately brings standards into EU law and that the standardisation bodies are merely preparatory bodies under its control a conclusion equally applicable to standards directly referenced in secondary legislation since it is a decision of the EU legislator.

Nonetheless, a full copyright waiver and free access pose practical problems too. Harmonised standards are often integral or partial copies of ISO and IEC standards. Moreover, Kanevskaia highlights that they themselves frequently reference other standards and can be patent-dependent. Navigating this convergence of intellectual property rights held by different actors will prove challenging, both legally and financially. In the end, as Kanevskaia argues, standard-setting bodies might be disincentivised knowing that their work will become part of the public domain without adequate compensation. Yet, as explained by Gérardy, compensating all intellectual property rights behind each referenced standard may prove financially prohibitive for the EU. Thus, balancing these considerations with the requirement to publish and offer free access to these standards is now a pending exercise.

Conclusion

By demanding proactive publication and effectively dismantling the copyright paywall, the Court took a decisive step towards legal certainty and transparency, as well as towards a further acknowledgement of the public dimension of standardisation. The significance of this progress is twofold.

First, it requires EU institutions to finally give in and accept that harmonised standards are mandatory. This forces the institutions to face a reality they have long avoided, namely, that the New Approach co-regulatory model has served its purpose, but it has not been sustainable as a matter of democratic legitimacy. Similarly, it forces the ESO’s to recognise that their work is not purely private. They too are acting in the public interest and on behalf of public institutions. Thus, both the policymakers and standard-setting bodies will need to explore their collaboration and work together to find a more sustainable governance model, where both public values and private interests are better balanced. This comes at a perfect time, considering that the Commission is currently evaluating Regulation 1025/2012.

Second, the C-588/21 P decision of the CJEU will prove essential in the context of standardisation, acquiring a broader role in risk regulation. The rapidly evolving and global digital market has made risk more accentuated and intricate. With AI taking the central stage, there are increasing risks not only to health and safety but also to public values such as fundamental rights and democratic processes. To mitigate these risks, the EU is adopting the AI Act, where the framework standards will play a significant role. In this context, free and public access to technical standards ensures transparency, which in turn allows for more robust legal scrutiny and public oversight over the market’s impact on public values. Thus, the CJEU’s decision may well contribute to and sustain the trust in the market for the future.