Learning from Case Law: Non-profit organisations vs the Commission on refusal to grant access to four harmonised standards approved by CEN (Case T‑185/19 and appeal Case C-588/21 P)

Public.Resource.Org, Inc. and Right to Know CLG are both non-profit organisations whose main focus is to make the law freely accessible to all citizens.¹

In 2018, they made a request to the European Commission Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, for access to four harmonised standards adopted by the European Committee for Standardisation (CEN). The commission refused to grant access to the harmonised standards.

Public.Resource.Org, Inc. and Right to Know CLG brought an action against the Commission which was dismissed by the general court. An appeal was lodged and in March 2024, the ECJ decided that the EU Commission must indeed grant access to the four requested harmonized standards.

This case potentially has far reaching ramifications insofar as the availability of Harmonised Technical Standards (HTS) for free is concerned and what this might mean for the development HTSs going forward.

Case T-185/19 – The parties to the main proceedings

Public.Resource.Org, Inc. and Right to Know CLG (Non-profit organisations)

The European Commission

About harmonised standards

A harmonised standard is a European standard developed by one of the recognised European Standards Organisation: CEN, CENELEC, or ETSI.²

It is created following a request from the European Commission to one of these organisations.²
Manufacturers, other economic operators, or conformity assessment bodies can use harmonised standards to demonstrate that products, services, or processes comply with relevant EU legislation.²
The references of harmonised standards must be published in the Official Journal of the European Union (OJEU). The purpose of this website is to provide access to the latest lists of references of harmonised standards and other European standards published in the OJEU.²

Harmonized standards are vital to protecting the public from defective consumer products, and must meet critical safety requirements.³

Often, however, binding EU law (i.e., regulations or directives) only sets abstract “essential requirements” but leaves the technical details to the harmonized standards.³
As a consequence, EU citizens often will not know about the relevant requirements for products unless they are also aware of the necessary harmonized standards that the EU law is referring to.³
Harmonized standards can generally only be obtained for a fee from the standardization organizations, for example the Deutsches Institut für Normung (DIN) in Germany.³

Background to the dispute¹

In September 2018, the applicants, Public.Resource.Org, Inc. and Right to Know CLG (non-profit organisations) , made a request to the European Commission Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, for access to documents held by the Commission (‘the request for access’). The request for access concerned four harmonised standards adopted by the European Committee for Standardisation (CEN).
By letter of 15 November 2018, The Commission, on the basis of the first indent of Article 4(2) of Regulation No 1049/2001, refused to grant the request for access (‘the initial refusal decision’).
On 30 November 2018, the applicants, pursuant to Article 7(2) of Regulation No 1049/2001, submitted a confirmatory application to the Commission.
By decision of 22 January 2019, the Commission confirmed the refusal to grant access to the requested harmonised standards (‘the confirmatory decision’).
By application lodged at the court registry on 28 March 2019, the applicants brought the present action.

The judgement (Case T-185/19)

You can view the judgement here. Essentially, the general court dismissed the action.

The appeal (Case C588/21 P)

By their appeal, Public.Resource.Org, Inc. and Right to Know CLG , non-profit organisations whose main focus is to make the law freely accessible to all citizens, sought for the judgment of the General Court of 14 July 2021, Public.Resource.Org and Right to Know v Commission (T‑185/19, EU:T:2021:445) (‘the judgment under appeal’) to be set aside. That judgment rejected as unfounded, their action seeking the annulment of Commission Decision C(2019) 639 final of 22 January 2019 refusing to grant them access to four harmonised technical standards (‘HTS’) adopted by the European Committee for Standardisation (CEN) (‘the contested decision’).⁴

This case C588/21 P gave the Grand Chamber of the Court an opportunity to rule for the first time on the issue of whether Harmonised Technical Standards – which the Court has already recognised as forming part of EU law and having legal effects:⁴

i) are capable of being protected by copyright; and, further,

ii) whether the rule of law as well as the principle of transparency and the right of access to documents, as enshrined in Article 15 TFEU, require that access to HTS be freely available without charge.⁴

The judgement of case C588/21 P (5 March 2024)

The Court (Grand Chamber) hereby:

Sets aside the judgment of the General Court of the European Union of 14 July 2021, Public.Resource.Org and Right to Know v Commission (T‑185/19, EU:T:2021:445);
Annuls Commission Decision C(2019) 639 final of 22 January 2019

Points 3 and 4 of the judgment concerning costs are not detailed above.

You can view the full judgement here.

According to CENELEC:

The judgment does not call into question that Harmonized Standards are subject to copyright protection.⁵

However, the ECJ finds that there is an overriding public interest in the disclosure of Harmonized Standards under Regulation 1049/2001 (which sets the conditions for obtaining access to EU documents whether drafted by EU institutions or received from third parties), and therefore annuls the European Commission’s decision to refuse access to the four standards requested.⁵

Why might ECJ’s final judgment have a major impact far beyond this particular case?

According to the law firm Morrison Foerster and FP Logue LLP, which helped Public.Resource.Org, Inc. and Right to Know CLG secure a major victory in the Court of Justice of the European Union (ECJ):

The EU Commission should now have to grant access to all harmonized standards free of charge since they form part of EU law. This will require a full reset of the European Standardization System. The ESOs, as well as national standardization organizations like DIN in Germany, may no longer require companies and individuals to purchase harmonized standards. With that, the law will finally become freely accessible in the European Union.⁴

It is well worth reading other viewpoints on the outcome of this case such as those provided in the Further reading section below.

References

Judgement of the general court 14 July 2021, Case T‑185/19 – InfoCuria Case Law
Internal Market, Industry, Entrepreneurship and SMEs – Harmonised Standards, European Commission
Morrison Foerster and FP Logue achieve full reset of European standadrization system – Jens Hackl et al, 5 Mar 2024, mofo.com
Opinion of advocate general Medina delivered on 22 June 2023, Case C588/21P – InfoCuria Case Law
Copyright protection of Harmonized Standards not in question – however, there is an overriding public interest in their disclosure, 5 March 2024 – cencenelec.eu