The European Union uses a system where European Standardisation Organisations (ESOs), such as CEN, CENELEC, and ETSI, develop European technical standards, as outlined in Regulation No 1025/2012 on European Standardisation. Harmonised standards are a specific category of these standards, created by an ESO following a request or ‘mandate’ from the European Commission.

While compliance with harmonised standards is in principle voluntary, products that meet these standards benefit from a presumption of conformity, as highlighted in recital 5 of Regulation No 1025/2012. This legal effect is a key feature of harmonised standards, making them an essential tool for economic operators seeking to exercise the right to free movement of goods or services within the EU market.

Private entities must pay for access to the actual content, which supports the business models of the ESOs that rely on the revenue from creating these standards.

The presumption of conformity means that a manufacturer can assume they have met the requirements of the relevant directive provided they have complied with the specifications in the standard(s) that cover all the essential requirements of all applicable directives. Practically, it is more challenging for a manufacturer to demonstrate compliance by means other than harmonised standards.

Two NGOs, Public.Resource.Org and Right to Know, are challenging the practice of paid access to harmonised standards. They argue that these standards should be freely accessible as they form part of EU law. Their challenge is based on Regulation No 1049/2001, which concerns public access to European Parliament, Council, and Commission documents.

The request for access was denied, leading to the first legal case (T-185/19, EU:T:2021:445) where the appellants sought to overturn this refusal, but they were once again unsuccessful.

According to Regulation No 1049/2001, institutions must refuse access to a document if its disclosure would undermine the protection of the commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure (first indent and the final clause of Article 4(2)). The appellants argue that such an overriding public interest exists when these harmonised standards are considered part of EU law, as it ensures transparency for consumers and manufacturers.

However, the Commission and the ESOs maintain that granting free access to these harmonised standards would undermine the ESOs’ commercial interests, as their business model relies on the revenue generated from selling access to these standards. They do not consider this overriding public interest to be proven.

The Court concluded that the rule of law necessitates free access to EU law. Since harmonised standards are considered part of EU law (see judgment of 27 October 2016, James Elliott Construction, C-613/14, EU:C:2016:821, para. 40), they must be accessible to ensure legal certainty. This access is vital for individuals to understand their rights and obligations and to verify legal compliance. The Court also emphasised the principles of openness and transparency, which serve as democratic and legitimising mechanisms that link citizens to decision-making processes through accountability.

Building on this rationale, the Court determined that there was indeed an overriding public interest in making these standards accessible. It highlighted the need for legal certainty given the legal status of harmonised standards, along with the principles of the rule of law and openness. Consequently, the Court overturned the General Court’s judgment and annulled the Commission’s decision, stating that the request of free access to the content of the harmonised standards should be granted.

This ruling still leaves room for several questions. The first question that arises is whether it is possible for the harmonised standards to be subject to copyright. The CJEU does not directly answer this question. Instead, it addresses whether there is an overriding public interest in this case, without explicitly determining whether the standards are protected by copyright. CEN and CENELEC have eagerly taken advantage of this ambiguity, interpreting the ruling as an indication that the standards might indeed be subject to copyright protection.

Next, there is the question of whether harmonised standards are now subject to a proactive publication requirement. The judgment addresses a request for access, whereby an organization or citizen must actively take steps to access the standards. It does not appear that the Court has made a binding decision on such a proactive obligation, which is not clearly derived from the James Elliott ruling either.

The decision of the CJEU will be pivotal in the realm of standardisation, expanding its role in risk regulation. In the context of the AI Act, where the legislator aims for transparency through free and public access to technical standards, this ruling is undoubtedly of great significance. The question of whether technical standards can be protected by copyright will likely become even more prominent in the future.