Op-Ed: “Private standards, EU law and access – The General Court’s ruling in Public.Resource.Org” by Maurizia De Bellis
The General Court’s ruling in the case Public.Resource.Org and Right to Know v Commission (T-185/19, ‘Public.Resource.Org’) discloses the contradictions in the increasing public endorsement of private standards under EU law.
At the core of the judgment is the conflict between the aspiration to public accessibility of the standards − standards that, albeit set by private bodies, have gone through a ‘juridification’ process making them (close to) mandatory, as explained below − and the protection of copyright − which is at the basis of the revenue of the standard setters. On more general terms, it challenges our understanding and definition of soft law, and it shows, once again, the tendency of the EU judiciary to provide a restrictive interpretation of the right to access.
The ‘New Approach’ and the public use of private standards
Despite not being a new phenomenon, the reference to standards has become increasingly relevant due to globalisation. As diverging standards created an obstacle to free trade, the effort towards harmonisation has been increasing. In the EU, the need to remove a potential obstacle to the completion of the internal market is at the root of the launch of the ‘New approach’ to technical harmonisation and standards in 1985. The drivers for replacing legislative regulation with the use of and reference to private standards are well known and lie in the lack of technical competence of public regulators and in the length of the legislative process, vis-à-vis the speed of technical innovation and evolution.
The techniques through which public regulators make use of (and lend their binding force to) standards set as voluntary by private standard setting bodies are not equal in their structure and in their effect. Within domestic legal systems, well known techniques are those of ‘incorporation’ and ‘reference’. In the ‘incorporation’ model, standards first elaborated by private organisations, are subsequently copied into specific provisions of a law and passed through the legislative process. In the ‘reference’ model, there is a reference to a private standard that is not copied in a specific provision. As I explained elsewhere, the advantage of the latter technique lies in the constant adaptation to technical progress it entails.
The ‘New approach’ under EU law entails a more complex technique. According to many commentators, in its current version, enshrined in Regulation 1025/2012, it sets forth a stronger ‘juridification’, so that the EU institutions cannot deny their control over the content of the standards.
In a nutshell, according to Regulation 1025/2012, the core basis of the New Approach is maintained: namely the presumption of conformity with the essential requirements set forth in the directives of the products complying with the harmonised standards − the standards that are prepared by the so-called European Standardization Organizations (ESOs): the European Committee for Standardization (CEN), the European Committee for Electrotechnical Standardization (CENELEC), and the European Telecommunications Standards Institute (ETSI) ––, and that are evaluated as satisfying the requirements in the corresponding EU harmonisation legislation.
Three elements of this procedure are crucial.
First, the Commission can explicitly mandate the drafting of the standards to the ESOs. Second – and at the core of the judgment – the text of the harmonised standards is not published in the Official Journal of the EU, only the reference is. Third, with the 2012 Regulation a specific objection procedure has been established, according to which a Member State or the EU Parliament can object that a harmonised standard does not entirely satisfy the requirements set out in the relevant EU legislation.
The Court of Justice’s approach to harmonised standards: the legal status of the standards and the right to access
In the last decade, the Court of Justice has been called to rule on the justiciability of harmonised standards in several cases, with different outcomes. In particular, in the James Elliott Construction case (C-613/14), , the Court stated that the standards form part of EU law and can be the object of a preliminary ruling. In its judgment, however, the Court left several issues open, such as what is the type of legal relation between the standard setters and the Commission. Other cases are pending, such as Stichting Rookpreventie Jeugd and Others (C-160/20), as explained in this Op-Ed by Annalisa Volpato.
The James Elliott Construction ruling, nevertheless, is one of the basis of the reasoning of the applicants Public.Resource.Org and Right to Know (two non-profit organisations whose main focus is to make the law freely accessible to all citizens, as further explained here). The applicants challenged the decision through which the Commission confirmed its refusal to provide access to four harmonised standards, based on the exception laid down in the first indent of Article 4(2) of Regulation 1049/2001, referring to the copyright over the requested harmonised standards belonging to CEN as a European organisation governed by private law which holds a right of ownership over all its publications, including European standards.
The applicants claimed that the Commission had erred in law on the basis of two arguments. First, in so far as harmonised standards form part of EU law, as they are ‘texts of law’ according to the James Elliott Construction ruling, they should not be considered subject to copyright protection under the first indent of Article 4(2) of Regulation 1049/2001. Second, even if they were considered as subject to copyright protection, there is an overriding public interest to provide access, within the meaning of the last clause of Article 4(2) of that Regulation, namely ‘the need to have access to the law in a state governed by the rule of law’.
In Public.Resource.Org, the General Court dismissed both arguments. As for the exception on the basis of copyright under the first indent of Article 4(2) of Regulation 1049/2001, it argued that the Commission was right to apply the exception relating to the protection of commercial interests to the requested documents. In doing so, it made two clarifications. First, the specific risk entailed with granting public access to the harmonised norms is explicitly stated: ‘it should be borne in mind, as the Commission submits, that the sale of standards is a vital part of the standardisation bodies’ business model. Freely available access to those standards without charge would call that model into question and would oblige those bodies to reconsider entirely the way in which they are organised, thus creating significant risks for the production of further standards and the possibility of having a method which shows that a product is deemed to comply with the requirements established by EU legislation by using a uniform method’ (paragraph 65). Second, and contrary to the James Elliott ruling, the General Court clarified the type of legal relations between the Commission and the ESOs, recognising that, as the standards are drafted ‘at the initiative and under the direction and supervision of the Commission’, within the European standardisation system CEN acts ‘as a public authority by performing public functions’; however, the fact that CEN (and more generally the ESOs) does perform tasks in the public interests does not exclude its commercial interests (paragraph 70).
While within the current system of harmonisation the ESOs have a commercial interest in protecting the revenues coming from the paywall to their standards, what is most surprising in the reasoning of the General Court are the arguments used to dismiss the second claim of the applicants, who had claimed that providing access to the harmonised standards constitutes an overriding public interest within the meaning of last clause of Article 4(2) of Regulation 1049/2001.
In dismissing this claim, the General Court had two lines of reasoning. On the one hand, it shared the Commission’s view that making the harmonised standards freely available and without charge would affect the entire functioning of the European standardisation system and hence would affect the free movement of goods; and that maintaining such free movement constitutes the public interest to be taken into account, a public interest that, in the General Court’s view, prevails over the freely available access to the harmonised standards. In this way, the revenue of the standards is no longer considered as within the commercial interests of the ESOs, but also as a constitutive part of the current functioning of the EU harmonisation system: not only as a private interest, but also a public one. On the other hand, and with a further stretch in its reasoning, the Court claimed that it is not clear what is the exact source of the constitutional principle that would require access (freely available and freely of charge) of the harmonised standards, contesting the need to provide for the standards the same ‘requirement of publication and accessibility attached to a “law”, inasmuch as those standards are not mandatory’ and ‘they produce the legal effects attached to them solely with regard to the persons concerned’ (paragraph 107).
In the end, at the core of the reasoning of the General Court is the distinction between law and standards, and the allegedly voluntary character of the latter. However, the affirmation of the voluntary effect of the standards is a formalistic simplification. The presumption of conformity to the essential requirements attached to compliance with the standards has been explained above. Moreover, the possibility itself of resolving to use an alternative to compliance with the standards presupposes exactly what the ruling is excluding, namely that the content of the standards has been accessed.
The process of public endorsement of private standardisation has made the clear division and opposition between public regulation and private standardisation untenable. A ‘double standard’ for the protection of the rule of law – with which public accessibility is undoubtedly strictly connected, as the Court of Strasbourg’s case law on accessibility further demonstrates – is increasingly difficult to accept. Yet, the system of European standardisation not only accepts, but finds in maintaining the revenues of the ESOs one of its constitutive elements, so that recognition through the EU judiciary of the need to recognise public accessibility of the standards could risk jeopardising the effectiveness of this system. This is why such recognition would best be achieved via a reform of the current EU system of harmonisation, a reform that could find a proper and long awaited balance between the interests at stake (eventually taking into account, alongside the strengthening of the rule of law, also a reform of the system of financing of the ESOs).
Maurizia De Bellis is Tenured Assistant Professor in Administrative Law in the Department of Law, University of Rome ’Tor Vergata’. She is the author of Ipoteri ispettivi dell’amministrazione europea (Giappichelli, 2021, in press).