In a case brought by two nonprofit organisations against the judgment of the EU General Court (the EU junior court) upholding the European Commission’s decision refusing to grant access to four harmonized technical standards (HTS), the Advocate General (AG) argued that the Court of Justice of the European Union (the EU senior court) should annul the General Court’s judgment and the European Commission’s decision and order the European Commission to grant the two nonprofit organisations access to the standards.
If the Court of Justice endorses the AG’s reasoning, this might have groundbreaking effects, as it could open the way to requiring HTS to be made freely available.
HTS are adopted, typically in the context of EU product legislation, by European Standardisation Organisations (ESOs), further to a mandate issued by the European Commission. They establish technical specifications that can be voluntarily used by manufacturers to comply with the technical and safety requirements set in EU legislation. They provide a presumption of conformity with the applicable rules and, therefore, are typically relied on by manufacturers.
Standardisation organisations charge a fee for the purchase of a standard.
Background to the dispute
Two nonprofit organisations made a request to the European Commission under Regulation (EC) 1049/2001 and Regulation (EC) 1367/2006 for access to four HTS adopted by the European Committee for Standardisation (CEN) under the Toy Safety Directive 2009/48/EC. The European Commission refused to grant the nonprofit organisations access to the four standards.
Consequently, the nonprofit organisations challenged the European Commission before the EU General Court, which dismissed the case (see the judgment in Case T-185/19).
The nonprofit organisations appealed the judgment of the General Court before the Court of Justice to seek the annulment of the General Court’s judgment and the European Commission’s decision to refuse access to the four standards.
Summary of the AG opinion
Here we summarise the main arguments presented by the AG in favour of free access to the HTS:
1. HTS are an act of EU law.
The AG concluded that HTS are adopted by the European Commission and, therefore, are part of EU law and should be made freely available based on the following considerations:
- HTS are not implementing measures originating from ESOs, ‘but are – under the EU standardisation system set out by the EU Legislature – to be considered as having been adopted by the [European] Commission or, in any event, that that institution is responsible for the adoption of HTS in conjunction with ESOs’.
- The procedure to adopt HTS starts with a request from the European Commission and ends with the European Commission, which verifies the conformity of the HTS with its original request and publishes the references of the standards in the Official Journal of the European Union. Furthermore, the work of ESOs is partially financed by the European Commission.
- The conformity with a given HTS is relied on by manufacturers of harmonized products to prove compliance with the essential requirements of the corresponding EU secondary legislation. HTS are – de facto – mandatory.
2. HTS impact rule of law requirements.
The AG further concluded that HTS, as acts that are part of EU law, implement EU legislation and produce legal effects. Therefore, the AG took the view that they should be made freely available without charge and also entirely published in the Official Journal of the European Union to ensure enforceability and accessibility by the public at large.
3. HTS are not capable of being protected by copyright.
The AG also held that, being acts of EU law and being indispensable for the implementation of EU legislation, HTS cannot benefit from copyright protection.
4. There is an overriding public interest justifying the disclosure.
Even if HTS could benefit from copyright protection (quod non), the AG concluded that free access to the law should take precedence over commercial interests which, in the present case, have not even been demonstrated and assessed.
In the opinion adopted on 22 June 2023, the AG argued that the judgment under appeal must be set aside, the contested decision must be annulled, and the European Commission must be ordered to grant the appellants access to the four requested standards for the reasons outlined above.
The AG opinion is not binding on the judges of the Court of Justice, who are now considering the case, which will be settled with a judgment that may be issued in the course of 2024. If the Court of Justice endorses the AG opinion, it may not only annul the General Court’s decision but also order the European Commission to grant access to the four requested HTS to the two nonprofit organisations.
The findings of the Court of Justice also may result in the need to revise Regulation 1025/2012, so as to require the content of the HTS to be published in the Official Journal of the European Union or made available without any charge not only to manufacturers but also, more generally, to the public.