As is well known, in 2018, the European Commission rejected an application by two non-profit organizations - Public.Resource.Org Inc. and Right to Know CLG - which campaign for the free accessibility of law, for access to several technical standards under the Access to Documents Regulation (EC) No. 1049/2001. In 2021, the General Court of the European Union initially confirmed the Commission's legal opinion. However, following an appeal, the European Court of Justice (ECJ) in Luxembourg overturned the first judgment on March 5, 2024 in the so-called "Malamud" judgment (Case C-588/21 P) and declared that the Commission should have granted access to the harmonized standards. The ECJ found that the four harmonized standards on toys in question (EN 71-4, -5 and 12 as well as EN 12472) are part of Union law due to their legal effects and therefore there is an overriding interest in their disclosure.
Since the ruling, the Commission has received numerous other applications for access to various harmonized standards (hEN). In the meantime, some national standards organizations (including DIN and ILNAS) have set up portals for read-only access to the national adoptions of such harmonized standards. The Danish standards organization Danish Standards (DS) and the Dutch standards organization NBN have also published lists of standards that can be viewed. As many harmonized European standards are partially or fully based on IEC and ISO standards (e.g. in the EMC, mechanical engineering, electrical equipment and medical devices sectors), the international standardization organizations are also affected by the Commission's decision to make them accessible.
There has been speculation among experts as to how ISO and IEC will react to this.
The answer is: On December 6, 2024, ISO and IEC initiated proceedings against the European Commission before the ECJ (case number T-631/24). From the information available, it is unclear what ISO and IEC are pursuing with the lawsuit.
According to a report, ISO and IEC have issued the following statement:
"In the interests of our respective members, IEC and ISO have taken measures to protect international standards from unauthorized disclosure.
Legal action has been taken against the European Commission's decision regarding the implementation of the European Court of Justice ruling in Case C-588/21 so that we can effectively fulfill our missions worldwide for the benefit of all. This action is aimed at preserving the integrity of international standards and protecting the infrastructure that supports their development. IEC and ISO are also committed to protecting the long-standing collaboration with their European standardization partners and will continue to work towards a resolution in relation to this case." (unofficial translation)
To be continued.
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Author
Dipl.-Ing. (FH) Michael Loerzer
Regulatory Affairs Specialist
DEFINITIONS AND ABBREVIATIONS
The term "harmonized standard" was defined by the European Commission in the Standardization Regulation 1025/2012. Accordingly, the Commission issues a mandate to the competent European standardization organizations (CEN, CENELEC or ETSI) to develop these harmonized standards (Art. 2 (1) (a)).
