Current developments regarding ISO and IEC standards in the EU Official Journal

Will international standards soon no longer be listed in the EU Official Journal? Due to unresolved copyright issues, ISO and IEC have filed a lawsuit against the free provision of standards in the wake of the so-called Malamud ruling. As a result, no standards created at ISO or IEC level are currently being proposed for publication in the Official Journal.

The technical article explains the background and context and provides recommendations to standard users on how best to respond in the current situation.
 

1. Review of previous events

Around a year ago, the ruling of the European Court of Justice (ECJ) in the Malamud case caused quite a stir. The plaintiffs had demanded that harmonised standards in the EU Official Journal must be freely accessible at no cost as part of EU law. The ECJ upheld this claim on 5 March 2024:

Every EU citizen 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 has given them legal effect by publishing them in the EU Official Journal.

Following the ruling, the ESOs (the European standardisation organisations CEN and CENELEC) made platforms available via their national members on which a certain number of harmonised standards listed in the EU Official Journal can be accessed for reading. These platforms have been published in stages since September 2024.

A few weeks later, the international standardisation organisations ISO (the International Organisation for Standardisation) and IEC (the International Electrotechnical Commission) filed a lawsuit with the ECJ against this interpretation of the ruling and demanded that the previous decision be declared null and void. Among other things, they argued that the free provision of EN standards developed at international level infringed copyright and that the organisations should have been informed before such standards were published on the reading platforms. The official statement of claim was published in February 2025.

Interested readers can find a detailed chronology of events and summaries of the judgments in our article ‘ECJ judgment: harmonised standards in the EU Official Journal – the “Malamud” case’.
 

2. Current impact: No new international standards published in the EU Official Journal

During research into the presumption of conformity of the EN ISO 10218 series of standards (industrial robots), both parts of the standard were marked on the CEN/CENELEC website with the information that no listing in the EU Official Journal for the Machinery Directive 2006/42/EC is expected. This led to the possible conclusion that the HAS assessment had been negative and that publication in the EU Official Journal was not planned.

However, this conclusion was rejected by our expert Dr Matthias Umbreit, lecturer in our seminar ‘Safe Robots and Cobots’ and member of ISO/TC “Robotics”. According to him, no negative assessment is known. Instead, it took ‘a great deal of effort to obtain a positive assessment (in 2024)’.

According to information from the responsible committee manager at CEN, the non-inclusion of the standard is justified by the ISO/IEC lawsuit against the ECJ ruling. Due to the lawsuit, there is a copyright issue, which is why the ESOs are currently unable to propose any EN ISO or EN IEC standards for publication in the EU Official Journal. The main points of the lawsuit were as follows:

1. The EU Commission published international standards without examining whether there was an overriding public interest (legal error)
2. The publication of international standards infringes the intellectual property rights of ISO and IEC (Intellectual property infringement)
3. The Commission did not inform ISO and IEC prior to publishing the documents (procedural error)

A request to CEN/CENELEC has received only a very vague response: CEN/CENELEC has stated that all parties involved are working towards a timely solution. It is hoped that more detailed information will be available shortly. In any case, the fact remains that no international ISO or IEC documents were published in the latest implementing decisions amending the harmonised standards for the Low Voltage Directive and the Machinery Directive, for example.

It is currently difficult to assess how serious the consequences of the lawsuit will be. The ISO/IEC lawsuit was published on the EUR-Lex portal on 17 February. Apparently, the standardisation bodies and the Commission are awaiting a further ruling by the ECJ in this case or are attempting to resolve the three main points of contention.

In any case, the established architecture of European standardisation is likely to have been damaged, as more and more European standards are based on international standards. The internal processes of CEN/CENELEC even favour this international orientation: the development of a technical standard that is not based on an existing international standard requires the unanimous approval of all national standardisation bodies. This facilitates the development of standards through international cooperation.

In recent years, the ESOs have worked more closely with international standardisation bodies on the basis of the Vienna Agreement (CEN and ISO)¹ and the Frankfurt Agreement (CENELEC and IEC)² in order to avoid duplication of work in the development of standards, save time and develop and publish identical European and international standards in parallel.

Provided that international standards comply with European legal and market requirements and are also implemented by non-European global players, priority is given to the content of the cooperation agreements with ISO and IEC.