Technical standards that are part of European regulations and directives must be accessible to companies and citizens free of charge. The copyright law, which the European standardization organizations have so far relied on, does not allow for any restrictions. This is what the Grand Chamber of the European Court of Justice decided today in a highly anticipated judgment (C-588/21 P). The lawsuit was filed by US activist and internet historian Carl Malamud, who fights for transparency and access rights to public documents in Europe and the USA.
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The EU legislature is increasingly relying on technical standards for harmonization in the internal market. Whether NIS2, eIDAS or the Toy Safety Directive (009/48/EC) selected by Malamud for the model lawsuit – ultimately it is the so-called harmonized technical standards that specify implementation.
But should such a genuine component of a legal text not be publicly accessible or only available for a fee?
Copyright protection for harmonized standards
Malamud's organization PublicResource.org and its Irish sister organization Right to Know deny exactly this. They initially applied to the European Commission for access to the four standards. They filed a lawsuit against the Commission's negative decision in 2019.
In the first instance, the European Court ruled in favor 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 violated the copyright of standards organizations and jeopardized their funding. In doing so, the court ignored an earlier decision by the European Court of Justice, which clearly recognized that such standards are part of EU law.
Norms are part of Union law
The Grand Chamber has now clearly contradicted this and stated “that the requested harmonized standards are part of Union law”. Overall, the chamber followed the recommendations of Attorney General Laila Medina that 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 was said.
Not only companies that have to adhere to standards or have their actions measured against them need to have access. The citizen protected by the law must also have the opportunity “to check, within the scope of what is legally permissible, whether those addressed to the rules established by the law actually comply with them.”
What about copyright?
However, the Luxembourg judgment remains tight-lipped on the issue of copyright protection for harmonized technical standards. In the preliminary proceedings, the Commission and the Court rejected the arguments of Malamud and his co-plaintiffs, according to which, on the one hand, the quality of the work was lacking, the organizations themselves were not “authors” and, in any case, copyright law had to take second place to the public's right of access to the law.
While the ECJ press office once again referred to copyright law as a possible exception to the right of access in its press release on today's judgment, the court itself did not comment on this in the judgment. How the highest court decision is interpreted on this issue could be crucial for its further impact.
How the verdict affects
Even if the judgment once and for all describes the harmonizing technical standards as part of Union law and their creation as a “delegated act”, the European and national standardization organizations may see this as a small window for a new lawsuit. Following the Attorney General's recommendations last summer, DIN warned that the existing and well-functioning European standardization process would be jeopardized by a corresponding ruling.
The business law firm Morrison Foerster, which represents Malamud and his partners, is convinced that today's ruling “will have major effects 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 requires “a complete reorganization of the European standardization system”. In the future, the European standardization organizations, but also national organizations such as DIN in Germany, would no longer be able to require companies and private individuals to buy harmonized standards for a lot of money.
(mki)