EU Advocate General: Standards must be free of charge

Initial situation

Harmonized standards in the EU Official Journal must be openly accessible free of charge - this claim of two organizations from 2019 was rejected by the European Court of Justice (ECJ) in December 2021, justifying all points of the complaint. We have summarized these contents in our article Rejected action in the case "Access to documents - Regulation (EC) 1049/2001". 
 

Appeal and recommendation of the Advocate General

Now the two organisations appealed against the judgement, and after re-examining the facts, the advocate general¹ proposed in June 2023 that the Court of Justice annul the previous judgement and give a judgement that harmonised standards should be made available free of charge  

The advocate General explained that, although standards are drawn up by private organisations (CEN, CENELEC and ETSI) under copyright law, in the case of harmonised standards the EU Commission acts as the body which commissions the standards or is responsible for their adoption. Compliance with harmonised standards implies a presumption of conformity with essential requirements of Union law, which is why the application of these standards is equivalent to compliance with binding rules. 

However, according to the rule of law, Union law must be freely accessible, which is why harmonised standards as a means of implementation must not be protectable by copyright. 
 

What's next?

The advocate general's recommendation is not binding on the Court of Justice. However, it is a fact that the case will soon be decided by the ECJ. It is also interesting to note that the advocates general's recommendations are followed in three quarters² of the cases. 

Should the ruling actually be made to the effect that standards published in the Official Journal of the European Union must be made available free of charge in future, this would be tantamount to a caesura in the European standards system. 
 

Links to the judgment and opinion

Interested readers can read the entire judgment and the advocate general's opinion on the Court of Justice of the EU's website.
 

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