Why Harmonised Standards Should be Open

The recent opinion delivered by AG Medina in C-588/21 has reopened the discussion about the question of access to European harmonised standards.Footnote1 The case refers to the appeal against Public.Resource.Org and Right to Know v. Commission (T-185/19). In brief, two non-governmental organisations (NGOs) requested that the Commission allow access to four harmonised technical standards in accordance with Regulation (EC) 1049/2001 (which sets the conditions for obtaining access to EU documents whether drafted by EU institutions or received from third parties). The Commission refused their request based on an exception established in the same Regulation, namely if the disclosure would jeopardise the “commercial interests of a natural or legal person, including intellectual property […] unless there is an overriding public interest in disclosure” (Art. 4(2) Regulation (EC) No. 1049/2001). In particular, the Commission claimed that harmonised standards are protected by copyright, their disclosure would economically impact on the standardisation body that issued them, and that no overriding public interest was proven. The NGOs contested this decision before the General Court, which ultimately confirmed the Commission’s evaluation, dismissing the claim.