1. Law behind a paywall
“What is law” is by far one of the most intriguing questions for lawyers. For over decades, legal philosophers, regulation and international law scholars have been challenging the idea that what is or ought to be perceived as “law” is made exclusively in law-making institutions. To that end, they also have analysed various mechanisms through which private rules metamorphosise into (semi-) binding obligations.Footnote 1
One of such mechanisms is the European “New Approach:” a regulatory technique through which “harmonized standards” – technical requirements developed by the three private European Standards Organizations (ESOs) – become conditions to meet European legal requirements. Application of these standards is but one possible way to demonstrate compliance with EU Directives or Regulations, yet by far the most preferable method among product manufacturers seeking access to the Single Market.Footnote 2 Such a division of labour between the legislators on the one hand, and industry bodies on the other, has proved beneficial for the European integration.Footnote 3 But there is a catch: since ESOs hold copyright over documents their produce, including harmonised standards, they control who, when and under which conditions can access and distribute these documents. Hence, when approving a harmonised standard, the European Commission only publishes the reference to this standard – and not its full text – in the EU Official Journal (OJEU).
The “New Approach” formula stands to this day: for instance, Standardisation Regulation 1025/2012 consistently refers to harmonised standards as “voluntary.”Footnote 4 However, the non-binding force of these standards has been challenged by the European Court of Justice (CJEU) for over a decade. Already in 2012, the Court ruled in Fra.bo, that harmonised standards have de facto mandatory effects since the presumption of conformity with the law is too strong to use other means of demonstrating compliance.Footnote 5 In the following landmark judgment James Elliott, the CJEU held that harmonised standards form part of EU law owing to their legal effects.Footnote 6 It continued in Stichting Rookpreventie that mandatory reference to standards of the International Organization for Standardization (ISO) in EU legislation makes these standards binding on public only if they been published in the OJEU.Footnote 7
As harmonised standards are pulled into public domain, fundamental questions linger about their public availability. These questions have been somewhat conveniently sidestepped by the Court – until PublicResourceOrg.
The facts of the case are as follows. In 2018, PublicResourceOrg and Right to Know, two Non-Governmental Organizations (NGOs) advocating for transparency and access to public documents, requested the European Commission to provide access to four harmonised standards of European Committee for Standardization (CEN) that were referenced under the Toy Safety DirectiveFootnote 8 and REACH Regulation.Footnote 9 The request was filed under Article 1 of Regulation 1049/2001 for public access to EU documents. The Commission refused, reasoning that CEN’s copyright over the four standards falls under the exception in Article 4(2) of the Regulation 1049/2001 that allowed denial of access for the reason of CEN’s commercial interests – in this case, its intellectual property. The applicants contested this decision before the EU General Court where they claimed, citing James Elliott, that since harmonised standards form part of EU law they cannot be protected by copyright and should be freely accessible.Footnote 10 In a quite surprising and much criticised decision, the General Court sided with the Commission, finding that there is no overriding principle of access to law which may trump the applicability of the exception of Article 4(2) that would justify harming CEN’s commercial interests.Footnote 11
PublicResourceOrg appealed. In the opinion that preceded the appeal ruling, Advocate-General Medina was fiercely critical of the General Court’s decision, suggesting that copyright protection of harmonised standards should be abolished and stressing that the rule of law requires that harmonised standards are available free of charge.Footnote 12 She also highlighted the central role that the Commission plays in standardisation process through issuing requests for harmonised standards, approving standards once they are drafted, and publishing their reference.Footnote 13
2. The rule of law prevails
The long-awaited decision came on 5 March 2024. The CJEU started its reasoning with acknowledging that “the right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium, is guaranteed to any citizen of the Union,” and that the principle of rule of law, entrenched in Article 2 of the EU Treaty (TEU), as well as Articles 15(3) of the Treaty of Fundamental Rights (TEU) and 42 of the EU Charter of Fundamental Rights, requires EU law to be freely accessible.Footnote 14 At the same time, the CJEU confirmed that access to the documents of EU institutions may be refused where the disclosure of such documents would undermine the protection of commercial interests, including intellectual property, unless there is an overriding public interest in the disclosure.Footnote 15 The Court thus did not engage in a balancing exercise between preserving CEN’s commercial interests and public interests of access to standards; to the contrary, the wording of the CJEU confirms that the existence of an overriding public interest makes the exception of Article 4(2) inapplicable. In other words, had this balance been sought, it would have been tilted towards overriding public interest of access to law.
The CJEU recalled that while standards are voluntary, economic operators would often struggle to use any other methods of proving compliance with EU legislation due to administrative difficulties and arising costs.Footnote 16 In line with the Advocate General’s arguments, the CJEU noted that it is up to the person or entity challenging the presumption of conformity with the essential requirements to prove that the product or service does not comply with the standard or that the standard is not fit for purpose.Footnote 17 The CJEU then applied this reasoning to the requested standards and held that since those standards are “manifestly mandatory,” they form a part of EU law.Footnote 18 Reiterating that the rule of law principle requires free access to EU law for all natural or legal persons, and that harmonised standards may specify the rights and obligations conferred on the individuals, the CJEU concluded that there is an overriding public interest to justify the disclosure of the requested harmonised standards.Footnote 19 The CJEU thus overruled the General Court’s decision confirming that free access to harmonised standards is required under the principles of the rule of law, transparency, openness and good governance.Footnote 20
The PublicResourceOrg ruling adds to the line of cases on the so-called “juridification” of standards. From this perspective, the CJEU’s findings that harmonised standards constitute a part of EU law, and should therefore be accessible to the general public, is not revolutionary. More intriguing however are the questions that the CJEU did not answer. In particular, and to the relief of CEN,Footnote 21 the Court did not address the issue of standards’ copyrightability, ignoring the biggest elephant in the room. In this regard, the CJEU also did not specify how exactly, and by whom, should harmonised standards be made available, presumably leaving this to the discretion of the ESOs and/or the Commission. And while the decision was primarily filed under the access to documents regulation, the issue of standards’ public availability is inseparable from CEN’s business model that is believed to rely on the selling of harmonised standards.
Furthermore, even though the CJEU did not go as far as crushing the New Approach for good, the ruling puts into question the well-entrenched practices of this regulatory technique. Firstly, the decision challenges the ESOs’ financial mechanisms and secondly, it shatters yet again the voluntary force of harmonised standards that has been the cornerstone of the European standardisation system.
3. Approaching the “New Approach” differently
Although the CJEU’s decision concerned only four specific documents, it is expected to affect all harmonised standards. In this regard, the judgment triggers several constitutional and institutional questions and is likely to carry profound effects on different actors involved in the EU process of technical standardisation. This commentary attempts to shed light onto a few considerations that policymakers may have to take into account when implementing the judgment.
3.1. Whose standards?
PublicResourceOrg is yet another Court’s decision that brings standards closer to the public realm without invalidating the New Approach. This presents a conundrum: if harmonized standards are part of EU law, they should be public; but because they are made by industry actors, they should be private. At the same time, the Court seems to endow harmonized standards with a mandatory power even if they are established by private parties. So where do standards belong?
An argument can be made that since the text of harmonized standards is not published as law in the OJEU, these standards cannot be binding: a similar reasoning was made by the Dutch Supreme Court in the Knooble Footnote 22 case and later, in Stichting Rookpreventie, Footnote 23 where the Court held that an ISO standards that was cited in the EU legislation but (the reference to it) was not published in the OJEU cannot bind the general public from the perspective of legal certainty. But the requirement to publish a standard in the OJEU is different from the requirement to make this standard publicly accessible. Curiously, the Court does not demand the Commission to publish the text of harmonized standards in the OJEU: in pulling harmonized standards into public domain, the Court looks at their legal effects, rather than the source or the manner of publication. The Court may thus be soon invited to explain whether references to international and European standards should be treated equally with regard to their binding force and free access.Footnote 24
While the question whether standards are public or private seems irrelevant for the Court’s assessment of their legal effects, it matters for the institutions that are involved in standardisation processes. If harmonized standards are public, the burden of accountability should lay with the European Commission. This is also in line with the CJEU’s and Advocate-General’s reasoning that the Commission has a central role to play in standardisation processes through requesting, approving and publishing the reference to the harmonised standard. It also has not been contested that the Commission is the appropriate institution to request standards’ disclosure: after all, the appellants could have also petitioned CEN to provide the four standards.
The fact that standards are not drafted by the European Commission, but by industry experts from governments and commercial entities, does not in principle preclude the Commission’s ownership of harmonised standard, provided that the Meroni requirementsFootnote 25 are fulfilled. In fact, the Commission often relies on private expertise in drafting its regulatory policies – including the HAS consultants whose expertise is sought to verify compliance of draft harmonised standards with the Commission’s standardisation requests.Footnote 26 In this regard, some commentators have linked the judgment to a democratic legitimisation mechanism through accountability in the light of the increasing democratic deficit that arises when European regulation is supplied by private bodies.Footnote 27
At the same time, admitting that harmonised standards belong to the public realm may have consequences to their assessment under the European competition law, since standards’ voluntary nature is one of the conditions of EU Horizontal Guidelines that keeps standards outside the purview of Article 101 TFEU.Footnote 28 It has even been suggested that placing standards into the public domain renders the process of their creation a legislative procedure rather than a private self-regulatory procedure, requiring the necessary constitutional checks and balances.Footnote 29
If, however, standards are private, their disclosure arguably risks disrupting CEN’s business model. This view is supported by CEN/CENELEC and the industry, which warn that bringing standards into the public domain is detrimental for the European standardisation system.Footnote 30 The General Court seemed particularly keen on such an assessment, while the CJEU kept silent regarding the validity of ESO’s commercial interests, merely stating that the overriding public interest prevails. In this regard, it should be noted that while ESOs are indeed private bodies, they are not precluded from exercising a public function when developing harmonised standards upon the request of the Commission.Footnote 31
3.2. Whose (copy) rights?
The CJEU did not follow the Advocate General’s view that the copyright protection of harmonised standards should be abolished due to the legal effects of standards as well as the EU and its Member States’ obligations under international treaties.Footnote 32 Indeed, whereas the requirement to provide free access to harmonised standards will have financial consequences for ESOs, it does not strip them from their intellectual property:Footnote 33 even if copyright is used as a commercial tool that allows to finance, at least in part, ESOs’ activities, it is primarily a right. To illustrate, the European Telecommunications Standards Institute (ETSI), one of the three ESOs, places their standards into public domain while still holding copyright over them.
It is worth recalling that while economic theories about copyright typically invoke incentives, legislators should in principle require no financial incentives to legislate: the reverse would even undermine independence of the legislature. But in the peculiar settings of the ESOs, where technical contributions are made by private parties and often rely on their innovative ideas, abandoning copyright may indeed discourage contributions from the industry.
In this regard, the question arises whether it is the standards’ drafters, rather than the ESOs, that should hold copyright over harmonised standards. This argument is supported by the condition for copyright protection that requires an author to produce an original work.Footnote 34 The General Courts did not engage sufficiently with the claim of originality, stating that copyrightability of standards should be assessed by the national courts; hence, the question whether standards’ copyrights should be held by ESOs themselves remains open. To the contrary, the US Courts are more outspoken on the matter of copyright. For instance, In the parallel case Georgia vs. Public.Resource.org, the Court held that non-commercial dissemination of incorporated technical standards does not result in liability for copyright infringement.Footnote 35
3.3. Who pays?
It is commonly assumed that standards’ free availability harms ESOs’ business model. Indeed, the financial aspects seem to be the central point of this discussion, since the preservation of the European standardisation system appears to rely on ESOs’ revenues from standards’ selling. However, previous studies indicated that the importance of this income source may be largely overstated, especially for CEN, who only earns about 4.6% of its financing through the selling of harmonised standards.Footnote 36 Furthermore, it should not be overlooked that the ESOs’ standardisation activities are also funded by the European Commission. Likewise, ESOs’ deliverables are much broader than harmonised standards and are equally copyrightable and sellable. ESOs thus appear to have a rather diverse stream of revenues that is not limited to the selling of harmonised standards.
Let assume, for the sake of the argument, that ESOs indeed suffer a loss of revenues by opening up their standards to public. The logic behind the Advocate-General’s and the Court’s reasoning seems to imply that the accountability burden of the New Approach is held by the Commission. It would hence be reasonable to suggest that it is the Commission that should ensure standards’ accessibility, either through increasing its funding for ESOs’ activities around the development of harmonised standards, or through “buying off” harmonised standards from ESOs and placing them into the public domain – an option that is used by some Member States, including France and the Netherlands, in relation to standards that are developed by National Standards Organizations (NSOs) and referenced in the national law. Whether the European Commission would be willing to do so in yet another question; at the moment of writing, the Commission has not yet issued a position statement on the PublicResourceOrg judgment.
Another option available to compensate ESOs for their (alleged) revenue loss is to increase their membership dues: after all, one of the reasons why ETSI can afford to make their standards freely available is their membership model that relies on private participation and high membership fees. But while seemingly fixing one transparency-related problem, this solution will exacerbate other problems that European standardisation faces in providing for open and inclusive standardisation processes, since the elevated fees may discourage non-commercial actors who already are underrepresented in the ESOs to take part into ESOs processes.Footnote 37
In determining who should be responsible for placing harmonised standards into the public domain, actors that typically get marginal attention are NSOs. However, it is NSOs, and not ESOs, who sell harmonised standards and decide upon their price. This also results in a situation that the same harmonised standard can be priced differently across the EU Member States, although the national industry tends to acquire them domestically rather than shop for a cheaper option.Footnote 38 Following this logic, it is the NSOs – and not ESOs,’ – business model that may be harmed by the loss of revenues.
The solution should thus be sought at the national, and not European, level. Again, national governments could “buy off” the harmonised standards from the NSOs or propose licensing schemes for allowing access to and distribution of harmonised standards. In this regard, national courts may seem more appropriate to force the disclosure of harmonised standards than the CJEU, since copyright is largely a national system. At the same time, having national laws to decide on the access to European standards may create more fragmentation rather than ensure legal certainty. It also places the burden of “fixing” the European standardisation system on the Member States.
The message of the Court is clear and consistent: harmonised standards are part of EU law, and the public should know the laws by which they abide. Yet, since the Court in PublicResourceOrg was silent on how access to such standards should be secured, these findings may still be open for interpretation. For instance, it could be argued that making harmonised standards publicly accessible is different from disclosing them upon a specific request; and providing access to standards is different from allowing their reproduction. This is for instance the case when a “read-only” version of a standard is available: such practice is common for some US standards bodies as well as for ISO standards on Artificial Intelligence.Footnote 39 However, given that the parallel US cases filed by the same plaintiff were about standards’ reproduction, it remains to be seen whether PublicResourceOrg will be satisfied with the solution that allows standards viewing but not their dissemination, and whether this solution will comply with the requirement of the Regulation 1049/2001 to “ensure the widest possible access” to documents held by European institutions. As a mitigating option, a separate licence may be needed for the lawful dissemination of standards: to compare, documents held by the Commission and the EU Publications Office are subject to the open reuse policy and are often accompanied by a copyright notice on reuse for commercial and non-commercial purposes.Footnote 40
4. Conclusion
ESOs’ business model as an obstacle to access to harmonised standards is a direct consequence of the choice of the “New Approach” as a technique for regulatory outsourcing. Whether the architects of the New Approach were aware of the possible hurdles that this choice has brought is unclear. Anecdotal evidence suggests that in the US, private standards that are incorporated in law through reference in legislative acts were initially expected to be made available free of charge. In hindsight, this is where the legislator should have drawn the line between legal certainty and the limits of private ordering.
While the ruling contributes to answering the pertinent question “what is law” (harmonised standards are) and confirms that law should be freely available (harmonised standards are not), it also leaves many issues open to interpretation. The many questions that the Court left unanswered are likely to return in a new wave of litigation. In the years to come, cases at the European and national levels will determine the future of the New Approach. But regardless the aftermath of PublicResourceOrg, its consequences should not be borne by a single actor: after all, European standardisation is a cumulative process. But even more important is to remember that amidst the practical issues of financing of standardisation activities, the bigger questions of legal certainty and the rule of law should not be overlooked.
Open access
