ECJ ruling: harmonised standards in the EU Official Journal - "Malamud" case

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. This ruling was confirmed by the ECJ in an official communication on 5 March 2024. In response, the national standardisation organisations have set up readability platforms on which only the national editions of the four standards that were the subject of the proceedings can be viewed free of charge.
 

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

1. The judgment of the General Court of the European Union of 14 July 2021, Public.Resource.Org and Right to Know v Commission, is set aside (access to documents denied on grounds of intellectual property protection)
2. The ECJ declares that Commission Decision C(2019) 639 of 22 January 2019 is annulled (CEN's decision refusing to make the standards available free of charge)
3. The European Commission is ordered to pay the costs of both the proceedings before the General Court of the European Union and the appeal proceedings; the European and national standardisation organisations are ordered to bear their own costs.The plaintiffs will therefore receive the four requested harmonised standards for toy safety, but may only use them within the limits of copyright law.
4. What the ruling means for access to the large number of other harmonised standards remains to be seen. In a statement following the ruling, the European standardisation organisations stated that they welcome the ruling to the effect that copyright protection for harmonised standards is not called into question.

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:

• The New Legislative Framework would have to be scrutinised in its current form. It stipulates that only basic health and safety requirements are communicated in legislation, with the latter being specified in harmonised standards. By stating that standards are part of EU law, however, the voluntary nature of application would be questioned, as standards would therefore be binding.
• The result would under certain circumstances mean a decoupling of European and international standardisation. Many ISO and IEC standards are adopted into European standardisation in order to establish international market access. As international standards are still subject to a fee, this previous adoption would no longer be possible without any problems.The free provision of harmonised technical standards also means that the national standardisation organisations lose sources of income - which is likely to have a direct impact on the financing of the standard creators (=technical committees).
• Such a funding gap could be filled or expanded by the EU Commission: according to the Advocate General, only the Commission can request the development of a harmonised standard in order to implement a directive or regulation. The development process is monitored by the Commission, which also assumes responsibility for funding in accordance with Article 15 of the aforementioned regulation.
• Increased funding from the Commission would potentially significantly increase its influence, which is already the case with current legislation through the possibility of drawing up "delegated acts" in the absence of standards.
   

Reaction of the EU Commission: Portal for read-only access

At the end of April, Kerstin Jorna, Director-General of the Directorate for Internal Market, Industry and Entrepreneurship and SMEs, announced that a joint approach to implementing the ruling³ was being worked on. According to this, free access to certain harmonized standards should take place within the framework of special “readability platforms”.

The introduction of such platforms took place at the beginning of September in cooperation with the individual standardization bodies³. For example, DIN provides a “Liste harmonisierter Normen” for Germany, on which the national implementations of the full texts of certain harmonized standards are made available to the European public. After registering, users can access the 4 standards that were the subject of the ruling: EN 71 with parts 4, 5 and 12 (safety of toys) as well as EN 12475 (simulated abrasion and corrosion test) in the corresponding national editions, whereby with the exception of EN 71-5, all editions of the standards have already been withdrawn on in the meantime as well as removed from the EU Official Journal according to the Toys or REACH Regulation. This access is provided with read-only rights and excludes the downloading and distribution of the standards content in any form; the copyrights remain with the national standards organization.
 

Chronology of events

Information for Safexpert users

We are closely monitoring the results of the court judgement and will immediately examine the consequences for the provision of standards in full text on the Safexpert Live Server. As things stand, the current ruling only affects the publication of the 4 harmonised standards to the plaintiffs, which can be viewed free of charge on the ‘readability platforms’.

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 findings on this topic.

Information for Safexpert users

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.

Links to the judgement 

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.