A landmark ruling by the EU’s top court could put a brake on lucrative business for private standardisation entities across Europe.
ADVERTISEMENTIn a ruling earlier this week, the Luxembourg-based European Court of Justice found an ‘overriding public interest’ justified disclosure of copyrighted technical standards followed by private companies.
The EU judges overturned a decision by the European Commission refusing to publicly disclose these so-called harmonised standards demanded by two non-profit organisations advocating for citizens’ right of to access documents.
Such harmonised standards are technical rules and guidelines developed at the request of the commission by recognised national entities grouped at the EU level in two associations: CENELEC, responsible for the electrical engineering sector; and CEN for other technical areas.
The court overturned a previous ruling from 2021 upholding the EU executive’s refusal to disclose the standards.
“This means that the commission has to grant free access to them [such harmonised standards] when they are requested under an access to documents request,” University College London professor Michael Veale told Euronews.
Although the ruling related to harmonised standards for toys, it is expected to have a much broader impact.
“It is likely to have implications on the funding model of CEN and CENELEC, whose standardisation activities are partly financed through the selling of standards,” said professor Olia Kanevskaia from Utrecht University.
‘Full reset’ of the EU standards system?
Harmonised standards are used by manufacturers and other economic operators to prove that their products, services or processes comply with the relevant EU legislation.
“Obtaining the full set of standards that a law refers to can cost hundreds of euros,” said professor Veale.
He explained that these copyrighted standards produced by the private standards bodies are required by companies to enable them comply with EU law, since they elaborate clearly on the raw text of the law.
CEN and CENELEC stressed that “the judgment does not call into question that harmonised standards are subject to copyright protection”, in a joint statement released after the ruling.
According to the EU standards bodies, access to documents is without prejudice to any existing copyright rules which may limit the right of third parties to reproduce or use released documents.
On the other hand, the law firms assisting the applicants claimed in a press release that the outcome of the case “will require a full reset of the European Standardisation System”.
The lawyers argued that, since the commission will now be required to grant access to harmonised standards free of charge, national standardisation organisations will be prevented from selling these documents for substantial amounts of money to companies and individuals.
“It remains to be seen whether this ruling will affect the liability of the European Commission and the European standards bodies over the technical content of harmonised standards,” professor Kanevskaia told Euronews.
For professor Veale as well, it is still unclear how the commission will deal with the outcome of the ruling. “Will it encourage them to start paying to create standards? To license them from the standards bodies? To publish them proactively?” he asked.
“In any case, it does not deal with the fact that standards integrating fundamental rights issues —such as those in the AI Act— are still being made unaccountably and behind closed doors, by a very limited set of expertise, even if the final results are no longer indefensibly proprietary,” he added.
The commission did not immediately respond to a request for comment.
