ECJ: Is the (technical) standardization system ("DIN/EN") in Europe collapsing? - Free access to harmonized standards

The European Court of Justice ("ECJ") recently ruled in its judgment of March 5, 2024 (case C-588/21 P) that EU citizens have a right of free access to (certain) harmonized European standards towards the European Commission if these standards define specific safety requirements for products or services. Specifically, the case at issue concerned technical standards for toys.

Facts of the case

The internet activist Carl Malamud had repeatedly posted international (including German) technical standards (including DIN standards) on the internet via his company (an "Incorporated", comparable to a limited liability company) and was sued several times for copyright infringement. In the ECJ ruling on "James Elliott" (case C-613/14), the ECJ had already mentioned, albeit in passing, that harmonized European standards are "part of Union law" and that if this is the case, there must also be free (and not fee-based) access to these standards (for interested parties), according to one of the main aspects of the complaint. In the "Malamud" case, the European Commission had rejected the request for (free) access in 2018 on the grounds that if the purpose of disclosure was to protect commercial interests, at least an overriding public interest would have to justify the disclosure of the document in question, and was therefore proved right at first instance.

Decision of the ECJ

However, the ECJ has now come to the conclusion that (in any case) the (requested) harmonized standards (on the safety of toys) are part of Union law and thus require free (no-cost) access; at the same time, however, it did not generally exclude copyright protection for harmonized standards.

In addition, the ECJ also affirmed that there was indeed an overriding public interest, as without knowledge of these standards (on the safety of toys), EU citizens would not know what specific requirements EU law requires of these products.

Practical note

At first glance, it sounds as if the decision is only about the costs that have to be paid in order to obtain the relevant standards (in Germany, for example, via the Beuth publishing house). However, the issue behind it is more important. The consequences currently under discussion are serious, possibly even for Europe's entire industry: the current standardization system could collapse – the danger has already been critically mentioned by specialists – because the system is not (or no longer) financially viable, even leading to "consequences in nationalism" ("small statehood"). How the DIN is to be secured, for example, seems unclear at present; long-term plans appear uncertain in any case.