Ruling: European standards must not go behind the paywall

Technical standards that are part of European regulations and directives must be accessible to companies and citizens free of charge. Copyright law, which the European standardization organizations have relied on up to now, does not permit a restriction. This was decided by the Grand Chamber of the European Court of Justice (ECJ) on March 5 in an eagerly awaited ruling (C-588/21 P). The case was brought by US activist and internet historian Carl Malamud, who is fighting for transparency and access rights to public documents in Europe and the USA.

EU legislators are increasingly relying on technical standards for harmonization in the internal market. Whether NIS2, eIDAS or the directive on the safety of toys (009/48/EC) selected by Malamud for the model lawsuit - ultimately it is the so-called harmonized technical standards that specify the implementation. However, may such a genuine component of a legal text not be publicly accessible or only for a fee?

Copyright protection for harmonized standards

Malamud's organization PublicResource.org and its Irish sister organization Right to Know dispute precisely this. They initially applied to the European Commission for access to the four standards. They appealed against the Commission's rejection in 2019.

At first instance, the European Court of First Instance ruled in favour of the Commission, the European Committee for Standardization (CEN) and the 13 standardization organizations involved in the proceedings, including DIN. It ruled that open access infringed the copyright of the standardization organizations and jeopardized their funding. In doing so, the court overruled an earlier decision by the European Court of Justice, which clearly recognized that such standards are part of Union law.

Standards are part of Union law

The Grand Chamber of the ECJ has now clearly contradicted the European Court of Justice and found "that the harmonized standards applied for are part of Union law". Overall, the Chamber followed the recommendations of Advocate General Laila Medina, according to which the rule of law also requires free access to applicable law for everyone. Only in this way can individuals clearly recognize their rights and obligations, it said.

It is not only companies that have to comply with standards or be measured against them in their actions that must have access. Citizens protected by the law must also have the opportunity to "check, within the scope of what is legally permissible, whether the addressees of the rules laid down by the law actually comply with them".

The impact of the ruling

The commercial law firm Morrison Foerster, which represents Malamud and his partners, is convinced that the ruling "will have a major impact far beyond the specific legal dispute". The EU Commission must now grant free access to all harmonized standards, the law firm writes in its press release.

This would require "a complete reorganization of the European standardization system". The European standardization organizations, but also national organizations such as the DIN in Germany, could no longer require companies and private individuals to buy harmonized standards for a lot of money.

Source: www.heise.de