In a jugdgment published this week, the Court of Justice of the European Union ruled on a complaint that some technical norms set as European Standards by a Standards Organisation are available only behind a paywall, despite them being cited by European law.
The European Comission had denied to grant the applicants free access to these documents, citing Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which in Article 4 defines exeptions. Paragraph 2, first indent lists cases "where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property...unless there is an overriding public interest in disclosure."
The Commission maintained the private interests overrode the public one. The complainants appealed against this decision on two grounds: first, they disputed that the standard texts in question were protected by copyright, and second, they upheld that there was an overriding interest of the public in reading the documents.
The Court, overthrowing an earlier decision in an appeals procedure, acknowledged the second reason for the appeal:
(80) In the light of the foregoing considerations, it must be held...that the requested harmonised standards form part of EU law.
(81) In the second place, as the Advocate General noted in point 52 of her Opinion, Article 2 TEU provides that the European Union is based on the principle of the rule of law, which requires free access to EU law for all natural or legal persons of the European Union, and that individuals must be able to ascertain unequivocally what their rights and obligations are... That free access must in particular enable any person whom legislation seeks to protect to verify, within the limits permitted by law, that the persons to whom the rules laid down by that law are addressed actually comply with those rules.
(82) Accordingly, by the effects conferred on it by EU legislation, a harmonised standard may specify the rights conferred on individuals as well as their obligations and those specifications may be necessary for them to verify whether a given product or service actually complies with the requirements of such legislation.
...
(85) In those circumstances, it must be held that there is an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, justifying the disclosure of the requested harmonised standards.
But it did not rule on the first reason:
(87) Consequently, the second ground of appeal must be upheld and, without it being necessary to examine the first ground of appeal, the judgment under appeal must be set aside.
In a press report on the judgement, the commentator there speculated that this ruling meant the court might not opose the opinion that the standard texts are still protected by copyright, only that the right to commercial exploitation had to stand aside. (Translated with DeepL.com)
However, the Luxembourg judgement remains...short-spoken on the issue of copyright protection. In the first instance, the Commission and the General Court had rejected the arguments...that, on the one hand, the quality of the work was lacking, that the organisations themselves were not "authors" and that, in any case, copyright had to take second place to the public's right of access to the law.
While the press office of the ECJ refers once again to copyright as a possible exception to the right of access in its press release on today's judgement, the court does not comment on this in the judgement itself, and how the supreme court's decision on this issue is interpreted could be decisive for its further impact.
Even if the ruling describes harmonising technical standards once and for all as part of Union law and their creation as a "delegated act": It is possible that the European and national standardisation organisations see a small window for a new lawsuit here. Following the Advocate General's recommendations last summer, DIN warned that the existing and well-functioning European standardisation process would be jeopardised by such a ruling.
What could such a reasoning look like? Is there a realistic way for Standards Organisations to weasel out of this and still hide the texts of standards behind a paywall?
