Effective control over technical standards embedded into EU law

In Public.Resource.Org, the General Court (‘GC‘) was called upon to balance the tension between the copyright claimed by a European standardisation organisation over four harmonised standards - and the request of free access to those standards, made by two NGOs pursuant to the principle of the rule of law. The GC decided to privilege the former. It ruled that harmonised standards are documents authored by private bodies able to license and sell them, even considering that their content constitutes part of EU secondary law. After presenting the decision, this case note will examine how the GC balanced the aforementioned tension between the private and public law dimensions of harmonised standards. We posit that the GC should have considered the constitutional role and public regulatory functions that harmonised standards fulfil, particularly, considering the climate of increased (scholarly and judicial) awareness over the public law dimension of harmonised standards.

According to the Standardisation Regulation, the Commission is both obliged and entitled to check whether mandated harmonised standards meet the requirements of a standardisation request, prior to publication of the reference to the standard in the Official Journal. The scope and intensity of this control over harmonised standards is, however, not mandated or specified in the Standardisation Regulation. Recently, the Commission has shifted towards a more intensive control of harmonised standards, a move which has been criticised as being incompatible with the Standardisation Regulation and the New Approach paradigm, uncalled for in light of the applicable case law, and ultimately as undermining the efficiency and smooth functioning of the standardisation process. The paper will consider this issue and conclude that that a more intense control of standards by the Commission before publishing a reference in the Official Journal is fully in line with the applicable legal framework.

EU legislation often refers to technical standardisation. One should thus not be misled by the complexity of technical standards - they embody fundamental public interests and have an important regulatory function. Consequently, it is the duty of the public actor, whose choice it was to incorporate private instruments into EU law, to ensure effective scrutiny over these standards. In this regard, the Commission recently launched its new EU standardisation strategy in which it vows to reinstate the EU‘s leadership on the international scene and to improve the governance of standardisation processes. This paper shortly reviews the actions proposed in the new EU standardisation strategy before concluding that they do not offer sufficient impetus for effective control over technical standards embedded in EU law. So long as countless global standards enter the EU legal order through the backdoor, the EU will remain a standard taker, and democratic legitimacy thresholds will not be respected