EU: "Malamud" case and CJEU ruling on March 5, 2024

Subject matter and consequences of the ruling for European standardization

On March 5, 2024 at 9.30 a.m., the European Court of Justice will deliver the judgment in the case "ECJ C-588/21 P (Public.Ressource.Orget al. ./. European Commission)" - also known as the Malamud case.


What is the case about?

Public.Resource.Org Inc. and Right to Know CLG are two non-profit organizations whose focus is that laws should be made freely accessible to all citizens. The organizations had challenged before the General Court a Commission decision refusing them access to four harmonized technical standards (HTS) of the European Committee for Standardization (CEN), in particular with regard to the safety of toys. As their action was unsuccessful, they appealed against the judgment of the General Court to the European Court of Justice. In her opinion, Advocate General Laila Medina considers whether the rule of law, the principle of transparency and the right of access to documents of EU institutions require HTS to be available free of charge.
(Author's note: The term "HTS" used by the CJEU and the Advocate General may be confusing and is also not a common abbreviation; what is meant here are the harmonized European standards (hEN)).


Who is Carl Malamud?

The founder of Public.Resource.Org Inc. is Carl Malamud. The US activist Carl Malamud sees himself as a citizen archivist: he obtains official works and other public documents on a large scale in order to make them available online for everyone. In Germany, the German Institute for Standardization sued him for copyright infringement back in 2013, as he also posted DIN standards online, among other things. In 2015, the Higher Regional Court of Hamburg upheld DIN's claim. Malamud has also had disputes with ASTM and other organizations in the USA.

In the current case, Carl Malamud has cleverly chosen the route via the so-called EU Document Access Regulation in order to force the EU to publish the above-mentioned European standards. In this way, he wanted to enforce an ECJ ruling.

The Appellants submitted a request for access to documents held by the Commission ("the Request") to the European Commission on the basis of Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006. The access request concerned four HTS adopted by CEN under Regulation (EU) No 1025/2012 ("Standardization Regulation"), namely the following standards:

  1. EN 71 "Safety of toys - Part 5: Chemical toys (sets) other than experimental sets"
  2. EN 71 "Safety of toys - Part 4: Experimental sets for chemistry and related activities"
  3. EN 71 "Safety of toys - Part 12: N-nitrosamines and N-nitrosatable substances" and
  4. and the European Standard EN 12472 on "Method for the simulation of wear and corrosion for the detection of nickel released from coated articles".

The standards in points (1) to (3) refer to Directive 2009/48/EC ("Toy Safety Directive") and the standard in point (4) refers to Regulation (EC) No. 1907/2006 ("REACH Regulation").

By letter dated November 15, 2018, the Commission refused to grant the request for access on the basis of the first indent of Article 4(2) of Regulation No 1049/2001. The Commission confirmed this refusal in the contested decision.

Regulation No. 1025/2012 continues the "New Approach Regulation" approach to technical harmonization and standards developed in 1985, which limits the content of legislation to "essential requirements" and leaves the technical details to HTS. It officially designates only three European Standardization Organizations (ESOs) for the establishment of HTS: CEN (responsible for standardization in most sectors); Comité européen de normalization électrotechnique (CENELEC, European Committee for Electrotechnical Standardization), which is responsible for standardization in electrical engineering); and the European Telecommunications Standards Institute (ETSI), which is responsible for standardization in the field of information and communication.

The HTS (=hEN) adopted by CEN and CENELEC are adopted by the respective national standards organizations and made available to the general public in return for a corresponding fee and usage licenses.

And this is what Malamud is all about: in principle, he wants all harmonized standards (hENs) for all harmonization legislation (from standards for toys, machinery, construction products, electrical equipment, radio equipment to general topics such as REACH, RoHS or electromagnetic compatibility) to be made available to everyone free of charge.


What could be the possible consequences for European standardization?

Numerous experts and users of standards warn against presenting free access to harmonized standards as an achievement without considering other possible consequences. At an information event organized by DIN, four consequences in particular were mentioned that need to be clarified if the Advocate General's application is confirmed by the ECJ:

How should the financing of the development of harmonized standards be structured in the future?
Will this be accompanied by a decoupling of European and international standardization (ISO; IEC) and will this result in new barriers to trade?
Will the influence of the European Commission in the development of harmonized standards become even greater?
And finally, the key question: Will the principle of the "New Legislative Framework" (formerly "New Approach"), which has contributed to the reduction of European trade barriers (through the harmonization of legislation with the core instrument of presumption of conformity based on the application of harmonized standards) as a tool of the internal market for more than 20 years, survive?


Dipl.-Ing. (FH) Michael Loerzer
Regulatory Affairs Specialist

Published on 01.02.2024
Category: Fokus Industry, Fokus Consumer Goods & Retail, Fokus Electrical and Wireless, Standards

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