“Part of EU Law”, But Only Partially: The Issue of the Accessibility of Harmonised Standards, by Annalisa Volpato

The completion and consolidation of the EU internal market has relied on the rule-making activities of private actors for more than three decades now. Following the regulatory technique of the New Approach, EU institutions have entrusted standard-setting organisations – composed of experts and representatives of the industry – to elaborate technical standards that prescribe voluntary technical requirements to be fulfilled by a product, process, service, or system. The compliance with these standards – adopted by the three European standardisation organisations (CEN, CENELEC and ETSI, collectively the ‘ESOs’) on the basis of a request made by the European Commission for the application of Union harmonisation legislation, and then endorsed by the Commission through a publication of a reference in the Official Journal of the European Union – grants the product or the service a presumption of conformity with the essential requirements of general interest established in Union legislation. These standards are defined as ‘harmonised standards’.

The involvement of these private actors in the regulation of the internal market has undoubtedly had economic advantages. Still, it has also raised many concerns on the legitimacy and accountability of the process under EU law. The scholarly debate was revamped especially after the James Elliott case, where the Court of Justice defined harmonised standards as ‘part of EU law’ and established its jurisdiction on the interpretation of harmonised standards under Article 267 TFEU. What being ‘part of EU law’ implies in general terms, however, remained unanswered. Recent cases brought to the Court aim specifically at receiving an answer to one particular problem: the text of harmonised standards is not freely available, but is covered by copyright. It is indeed hard to reconcile the idea of a rule which has legal effect (as recognised in Fra.bo.) and which is part of the legislative framework with its actual accessibility only against payment.

In the Public.Resource.Org case, brought by an NGO against the Commission’s decision to deny access to the text of a harmonised standard, the Court clearly refused to draw from James Elliott the conclusion that harmonised standards should be freely available without charge. There are many different aspects to the case which make it an interesting read, including those related to the application of Regulation 1049/2001 and of the Aarhus Convention’s obligations. From a European administrative law perspective, it is particularly intriguing for the discussion on whether the ESOs can be considered a public authority while drawing up harmonised standards. Indeed, the involvement of private actors in the regulation of the internal market blurs the dividing line between public and private spheres, consequently putting into question the very definition of public administration.

In many national legal systems, which also experienced forms of ‘privatization’ of certain public functions – as well as ‘de-statalisation’ of legal sources – scholars have struggled to find decisive criteria to distinguish public entities from private entities, recognising how the organisation, the procedures or the interests pursued by these private bodies may not be decisive for the distinction. What could be more objectively defined is the public or private nature of the function exercised, which, irrespective of the organisation of the entity or the interests it pursues, determines its relevance for the public interest and the application of the fundamental guarantees of public law (such as legality, non-discrimination, and judicial review). Adopting this functionalist perspective, one could argue that the elaboration of technical rules which complement the legislative framework for the marketing of products is a performance of public functions.

In Public.Resource.Org –in response to the applicant’s argument that, in issuing harmonised standards, CEN act as a public authority by performing public functions which are not subject to any commercial interests – the Court opposes the view that contributing to the performance of tasks in the public interest does not change the legal status and obligations of CEN. The fact that CEN contribute to the performance of public tasks does not alter their nature as private entities, and it also does not trigger the application of public law guarantees such as the obligation of public access to their decisions, transparency, and the duty to state reasons. Such a restrictive interpretation of the notion of public authority (more restrictive than the one applied to national public authorities, for instance) is in line with the approach in James Elliott, where the Court refused to consider the ESOs as “institutions, bodies, offices and agencies” of the EU and thus departed from the conclusions of the Advocate General.

Moreover, the Court seems to give particular importance to the commercial interests of the ESOs. In fact, similar to the arguments of Advocate General Saugmandsgaard Øe in the Stichting Rookpreventie Jeugd and Others case (concerning free access to international standards), the premise of the reasoning is the fact that (i) the royalties collected by standard-setting bodies are the backbone of the standardisation business model; and (ii) granting free access would definitely impair the sustainability of the entire system. While this is certainly true for international standardisation bodies which rely mostly on the sale of standards and on the contributions of their members (i.e. national standardisation bodies), at the EU level the situation is more complex. CEN and CENELEC do not directly distribute or sell standards; these standards can be accessed only via their national members which, in turn, contribute to the ESOs’ budgets with annual contributions. As noted in relation to the revision of the European Standardisation Package, the extent to which the budget of national standardisation bodies depends on the sale of harmonised standards is not demonstrated. Harmonised standards are only one part of ESOs activities: at the end of 2020, the CEN catalogue counted 17,672 deliverables, of which only 2,139 (12.1%) were in support of EU legislation (see 2020 Annual Report). In relation to the activities related to the development of harmonised standards, Regulation 1025/2021 provides for the financing of the European standardisation organisations and of national standardisation bodies. Therefore, free access to the text of harmonised standards would not necessarily imply a re-thinking of the whole business model of European standardisation. It would only imply a re-thinking of the distribution mechanism for a limited number of standards, the costs for the development, translation, and information of which are – at least according to Regulation 1025/2012 – already covered by EU financing. Considering also the indirect and unclear impact of this on ESOs’ budgets, the argument that, in the public interest, the maintenance of this business model should prevail over the fundamental guarantees of legal certainty, transparency, and good administration is hardly tenable.

The accessibility of the content of the law is a fundamental tenet of the rule of law, as it allows citizens to know the obligations they are bound by and the rights they can invoke before a court of law in a democratic society. Arguably, a radical reform of such an important system for the European economy, as the standardisation system, cannot be left solely in the hands of the Court. The upcoming publication of the Commission’s Standardisation Strategy may represent an opportunity for the EU institutions to take a stance on the matter. The discussion in Public.Resource.Org shows that entrusting private actors with public functions may have relevant implications not only for the entities involved (given that it questions their business model and effective functioning), but also for fundamental notions such as the one of public authority and for the scope of application of the core principles of European public law. To conclude, further reflection on these implications by legal scholars – including European and comparative administrative law scholars – is needed at such a critical stage to clearly define the role of these private actors in the EU legal system.

Posted by Dr Annalisa Volpato (Assistant Professor at Maastricht University).

Suggested citation: A. Volpato, ““Part of EU Law” but only partially: The issue of accessibility of harmonised standards”; REALaw.blog, available at https://wp.me/pcQ0x2-7F.