EU Advocate General: Standards must be free of charge

Initial situation

Harmonized standards in the EU Official Journal must be openly accessible free of charge - this claim of two organizations from 2019 was rejected by the European Court of Justice (ECJ) in December 2021, justifying all points of the complaint. We have summarized these contents in our article Rejected action in the case "Access to documents - Regulation (EC) 1049/2001". 
 

Appeal and recommendation of the Advocate General

Now the two organisations appealed against the judgement, and after re-examining the facts, the advocate general¹ proposed in June 2023 that the Court of Justice annul the previous judgement and give a judgement that harmonised standards should be made available free of charge  

The advocate General explained that, although standards are drawn up by private organisations (CEN, CENELEC and ETSI) under copyright law, in the case of harmonised standards the EU Commission acts as the body which commissions the standards or is responsible for their adoption. Compliance with harmonised standards implies a presumption of conformity with essential requirements of Union law, which is why the application of these standards is equivalent to compliance with binding rules. 

However, according to the rule of law, Union law must be freely accessible, which is why harmonised standards as a means of implementation must not be protectable by copyright. 
 

What is the current status?
 

On 5 March 2024, the ECJ followed the Advocate General's recommendation and announced in its ruling that the access to the 4 requested harmonised standards discussed in the case must be granted to the plaintiff side (including under the Toys Directive 2009/48/EC).

You can find all further information on this ECJ ruling in our latest article on this topic: "ECJ ruling: harmonised standards in the EU Official Journal - "Malamud" case".

Links to the judgment and opinion

Interested readers can read the entire judgment and the advocate general's opinion on the Court of Justice of the EU's website.
 

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