Opinion of Advocate General Medina delivered on 22 June 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:509
• Date: 22 June 2023
• Celex Number: 62021CC0588
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 22 June 2023(1)

Case C‑588/21 P

Public.Resource.Org, Inc.,

Right to Know CLG

v

European Commission

(Appeal – Access to documents of institutions – Regulation (EC) No 1049/2001 – Harmonised standards – Four harmonised standards adopted by the European Committee for Standardisation – Refusal to grant access – Exception relating to the protection of the commercial interests of a third party – Protection deriving from copyright – Rule of law)

1. By their appeal, Public.Resource.Org, Inc. and Right to Know CLG (jointly ‘the appellants’), non-profit organisations whose main focus is to make the law freely accessible to all citizens, seek for the judgment of the General Court of 14 July 2021, Public.Resource.Org and Right to Know v Commission (T‑185/19, EU:T:2021:445) (‘the judgment under appeal’) to be set aside. That judgment rejected as unfounded their action seeking the annulment of Commission Decision C(2019) 639 final of 22 January 2019 refusing to grant them access to four harmonised technical standards (‘HTS’) adopted by the European Committee for Standardisation (CEN) (‘the contested decision’). The present case gives the Grand Chamber of the Court an opportunity to rule for the first time on the issue as to whether HTS – which the Court has already recognised as forming part of EU law and having legal effects – are capable of being protected by copyright; and, further, whether the rule of law as well as the principle of transparency and the right of access to documents, as enshrined in Article 15 TFEU, require that access to HTS be freely available without charge.

I. Background to the dispute

2. The appellants made a request to the European Commission, on the basis of Regulation (EC) No 1049/2001 (2) and Regulation (EC) No 1367/2006, (3) for access to documents held by the Commission (‘the request for access’). The request for access concerned four HTS adopted by CEN, in accordance with Regulation (EU) No 1025/2012, (4) namely standards: (i) ‘Safety of toys – Part 5: Chemical toys (sets) other than experimental sets’; (ii) ‘Safety of toys – Part 4: Experimental sets for chemistry and related activities’; (iii) ‘Safety of toys – Part 12: N-Nitrosamines and N-nitrosatable substances’; and (iv) ‘Method for the simulation of wear and corrosion for the detection of nickel released from coated items’ (‘the requested HTS’). HTS (i) to (iii) refer to Directive 2009/48/EC (5) (‘the Toy Safety Directive’) and HTS (iv) refers to Regulation (EC) No 1907/2006. (6)

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

4. Regulation No 1025/2012 continues the ‘New Approach regulation’ approach to technical harmonisation and standards developed in 1985, which restricts the content of legislation to ‘essential requirements’, leaving the technical details to HTS. It formally designates only three European Standards Organisations (ESOs) for the purposes of establishing HTS: CEN (responsible for standardisation in most sectors); Comité européen de normalisation électrotechnique (CENELEC, European Committee for Electrotechnical Standardisation), which is responsible for standardisation in electrical engineering); and European Telecommunications Standards Institute (ETSI), which is responsible for standardisation in information and communications.

II. Proceedings before the General Court and the judgment under appeal

5. By application lodged at the Registry of the General Court on 28 March 2019, the appellants brought an action seeking the annulment of the contested decision. In essence, the appellants’ first plea in law alleged that the Commission misinterpreted and/or misapplied the first indent of Article 4(2) of Regulation No 1049/2001; and their second plea in law alleged that the Commission infringed the last clause of Article 4(2) of Regulation No 1049/2001. The General Court rejected both pleas and dismissed the action.

III. Assessment

A. First ground of appeal – Error in the assessment of the application of the exception in the first indent of Article 4(2) of Regulation No 1049/2001

1. First limb of the first ground of appeal – the General Court committed an error of law in incorrectly assessing the copyright protection for the requested HTS

(a) First claim: HTS cannot be protected by copyright since they are part of EU law

6. The appellants submit, in essence, that the General Court’s error of law consists in failing to recognise that the requested HTS cannot be protected by copyright since they are part of EU law and the rule of law requires free access to the law. The Commission and the interveners (CEN and the other 14 interveners at first instance) submit that the appeal should be dismissed as unfounded, arguing essentially that the EU standardisation system is based on a recognition of ESOs’ copyright over HTS.

(1) Introduction

7. It is necessary to start the present Opinion with an overview of the Court’s judgments in Fra.bo, in James Elliott and in Stichting, (7) as they form the backdrop for the present case.

8. First, in the judgment in Fra.bo (paragraphs 27 to 32), the Court recognised essentially that, despite being entities governed by private law, national standardisation and certification bodies may exercise public powers and that even though national technical standards are de jure voluntary, de facto they may have mandatory effects. This is due to the fact that other means of compliance with EU secondary legislation would be more costly to producers who would need to invest in finding methods that could guarantee at least an equivalent level of protection as that of the standards and taking account of the fact that any alternative method of compliance would not benefit from the presumption of conformity with the requirements of EU secondary legislation. The Court acknowledged the potential de facto mandatory character of a technical standard (paragraph 30) and ruled that ‘[Article 34 TFEU] must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body’ (paragraph 32).

9. Secondly, the Court held in the key judgment in James Elliott (paragraph 40) that, due to their legal effects, HTS form part of EU law. It ruled that ‘[a HTS] such as that at issue in the main proceedings, adopted on the basis of [a directive] and the references to which have been published in the Official Journal of the European Union forms part of EU law, since it is by reference to the provisions of such a standard that it is established whether or not the presumption [of conformity] laid down in [that directive] applies to a given product’. Furthermore, according to paragraph 42 of the same judgment, ‘although evidence of compliance of a construction product with the essential requirements contained in [that directive] may be provided by means other than proof of compliance with [HTS], that cannot call into question the existence of the legal effects of [a HTS]’ (emphasis added). Finally, according to paragraph 43 of the judgment in James Elliott, ‘it must, moreover, be noted that while the development of such [a HTS] is indeed entrusted to an organisation governed by private law, it is nevertheless a necessary implementation measure which is strictly governed by the essential requirements defined by that directive, initiated, managed and monitored by the Commission, and its legal effects are subject to prior publication by the Commission of its references in the ‘C’ series of the [Official Journal]’ (emphasis added). It should be noted, however, that since 2018, it is the ‘L’ series (for legislation) instead of the ‘C’ series (information and notices), which confirms the recognition that HTS form part of EU law.

10. Thirdly, in the judgment in Stichting (paragraphs 33 to 49), the Grand Chamber of the Court held that standards (in that case, the International Organisation for Standardisation (ISO) standards) may be rendered mandatory. The Court ruled, essentially, that it was not necessary that details of a technical nature are set out in the legislative act and, accordingly, the fact that the directive contained only a reference to an ISO standard (but not its full text) did not affect the validity of that directive. However, in paragraph 48, the Court held that ‘in accordance with the principle of legal certainty …, technical standards determined by a standards body, such as ISO, and made mandatory by [an EU] legislative act are binding on the public generally only if they themselves have been published in the [Official Journal]’.

11. As I will explain in the present Opinion, the above judgments, when read together, in view of the fact that HTS impose certain obligations and their legal effects may be relied on by the general public, provide a solid basis for the Court to rule on the appropriate conditions for access to HTS. At the same time, it should be pointed out that this analysis does not necessarily apply to other types of standards drawn up by ESOs.

12. Furthermore, it is necessary to highlight the fact that one of the four requested HTS – that is standard (iv) in point 2 of the present Opinion – is, in fact, clearly mandatory, as was recognised by the Commission at the hearing. This is because entry 27 in Annex XVII to Regulation No 1907/2006 provides, in relation to nickel, that ‘the standards adopted by … CEN … shall be used as the test methods for demonstrating the conformity of articles to paragraphs 1 and 2’ (emphasis added). Therefore, that requested standard is comparable to the...