Published 07/08/24
Anyone who has purchased standards recently will know how expensive they can be, in many cases costing hundreds of Euros / Pounds each.
A European court case earlier this year could change that, and result in many standards becoming freely accessible.
What was the court case about?
Commonly known as the ‘Malamud’ case, European Court case C588/P21 was brought by not-for-profit organisations whose focus is on making the law freely accessible to the public.
It revolved around whether European Harmonised Standards, which are standards that are cited in the Official Journal of the European Union in relation to EU harmonisation legislation and which consequently offer a presumption of conformity with that legislation, should be freely accessible.
Previous court rulings (‘James Elliott case’ and others) had determined that harmonised standards effectively form part of EU law, because they establish criteria for a product’s presumption of conformity.
Since the rule of law requires free access to the law, the claim was that harmonised standards should therefore also be freely available.
What did the court conclude?
The Court found that access to harmonised standards for natural or legal persons in the EU is justified due to an overriding public interest, on the basis that they form part of EU law.
What is happening to bring this about?
It is reported that the European Commission, European standards bodies CEN and CENELEC, and the national standardisation bodies are working together to find a suitable approach to implement the Court’s judgement.
How will access to standards be provided?
The intention is for this to be done via readability platforms.
These may be similar to similar solutions used in other jurisdictions, which permit viewing of the standard one page at a time but not printing or saving.
This may satisfy the legal objective of the judgement and facilitate occasional use, but serious users of standards will likely find such a solution somewhat limiting and end up purchasing the standard in a form that is convenient for everyday use.
Will all standards become free?
No, only EU harmonised standards are required to be freely available for all natural or legal persons residing or having their registered office in an EU Member State.
Other standards will still need to be bought.
It is unclear if non-EU residents will also be able to gain free access.
It is also unclear whether the free access provision extends not just to the harmonised standards themselves, but to the standards that are normatively referenced in the harmonised standards and which are indispensable for their application.
Everyone is happy then?
This remains to be seen. CEN/ CENELEC were quick to point out that the judgment does not call into question that Harmonised Standards are subject to copyright protection.
It will be interesting to see how the standards organisations will finance standards development work if the results of their hard work are not charged for. The third European standards body, ETSI, does not charge for their standards, although unlike many of the harmonised CEN and CENELEC standards, ETSI standards are not based on international IEC and ISO standards with their associated copyright issues.