EU Advocate General: Will Harmonised Standards Become Freely Available?
?
Introduction
In a legal battle that could have significant implications for industries, consumers, and regulatory bodies in the European Union, two nonprofit organizations recently challenged the European Commission's decision to deny access to four harmonised standards. The case, which has captured the attention of legal experts and industry insiders alike, made its way to the Court of Justice of the European Union. What sets this case apart is the remarkable argument put forth by the Advocate General (AG), suggesting that harmonised standards should be made freely available. If this reasoning is adopted by the EU senior court, it could have ground breaking effects.
?
What Are Harmonised Standards?
Harmonised standards are a crucial component of the European regulatory landscape, particularly concerning product safety, technical specifications and legislation compliance. These standards are created by European Standardisation Organisations (ESOs) in response to mandates issued by the European Commission. They outline detailed technical specifications that manufacturers can voluntarily adopt to ensure compliance with EU legislation. By adhering to these standards, manufacturers gain a presumption of conformity with EU directives and regulations, which is vital for doing business within the EU's single market.
?
The Case at Hand
Two nonprofit organizations sought access to four harmonised standards adopted by the European Committee for Standardization (CEN) under the Toy Safety Directive 2009/48/EC. When the European Commission denied their request, the nonprofits pursued legal action, leading to a judgment by the EU General Court that upheld the Commission's decision. The two organisations, undeterred, took the case to the Court of Justice of the European Union in pursuit of their quest for access to these standards.
?
Advocate General's Compelling Arguments
The Advocate General's argument for making harmonised standards freely available is based on several key points:
The AG asserts that harmonised standards are intrinsically tied to EU law. These standards are not mere recommendations but have their origins in EU legislation. The European Commission is instrumental in their development, from initiation to final verification and publication in the Official Journal of the European Union. Manufacturers rely on these standards to prove compliance with EU requirements, making them de facto mandatory.
领英推荐
Harmonised standards, as legally binding instruments, have far-reaching implications. They implement EU legislation and produce legal effects, rendering their accessibility a matter of public interest. Ensuring free access without charge and publication in the Official Journal of the European Union serves to uphold the rule of law and makes these standards enforceable and accessible to the public at large.
Given their status as acts of EU law, harmonised standards cannot be eligible for copyright protection. They are indispensable for the implementation of EU legislation, further justifying their availability to the public.
The AG emphasises the overriding public interest in disclosing harmonised standards. Even if there were any commercial interests at stake (which, in this case, were not convincingly demonstrated), the AG contends that free access to the law should prevail.
?
Conclusion
In a landmark opinion adopted in June 2023, the Advocate General has called for the annulment of the General Court's decision and the European Commission's refusal to grant access to the requested harmonised standards. This development is now in the hands of the Court of Justice, and a judgment may be expected in 2024.
Should the Court of Justice endorse the Advocate General's arguments, it could lead to an unprecedented shift in policy. The outcome may not only compel the European Commission to grant access to the four requested HTS but could also trigger a revision of Regulation 1025/2012. Such a revision might mandate that harmonised standards content be published in the Official Journal of the European Union or made freely available to the public, extending the benefits of these standards beyond manufacturers and into the broader community.
This case could redefine the accessibility and usage of harmonised standards in the EU, potentially ushering in an era of greater transparency and cooperation between regulatory bodies and the industries they oversee. As we await the final judgment, all stakeholders should closely monitor this case for its potential far-reaching consequences.
?
According to Advocate General Medina European Harmonised Technical Standards must be freely available without charge because of their particular legal nature as acts that form part of EU law (europa.eu)
?
Chief Executive Officer at Technology International Inc
1 年I've always had a beef with the concept of a private institution forming the law. In UK take the electrical Regs as a parallel. Every other year or so sparkies have to pay BSI, a private company, a shed-load of cash just to find out what the law has become. That is profoundly undemocratic. Only the national legislature can pass law, and the courts can interpret and refine it. How can we accept this back-door by which totally unaccountable private bodies decide the law and then charge you to know what it is? About time they sorted out this true corruption of the system. UK as well as EU. Rant over!
Director | Salsus Design Ltd | Design of Physical Products | Passionate about quality aesthetics backed by efficient and effective design
1 年This would be a huge change for the better. However, the points being made about the cost of developing and maintaining standards are very valid. The cost has to borne somewhere.
Functional Safety Professional/Seasoned Controls Engineer
1 年Seems like they would have to fund the standards institutes from taxes then. Money is needed from somewhere to continue to progress
Originally the reason for mentioning hENs in the OJ, was to help member states market surveillance authorities to find out which standards are relevant for specific products. Not to say thet they are mandatory. Later, on the basis of the James Elliott case, hENs was published in the L part of OJ instead of the C part. So in reality, if standards are made free on the basis that they are legislation, its a strong confirmation of the Commission's interpretation of the James Elliott case.
Let a good product compliance management turn technical barriers to trade into competitive advantage ?? for a successful Global Market Access !
1 年Even if I share the interest or even the right to have access freely to the hEN standards for example, we can't neglect the fact that the creation and the management of such documents have a cost. If they are free, that means that we need to pass on costs to someone...