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Author: Arnaud Van Waeyenberge, Professeur Associé en Droit, HEC Paris Business School
Original article: https://theconversation.com/when-the-technical-meets-the-political-court-of-justice-rules-that-eu-standards-require-more-openness-240699
The Court of Justice of the European Union (CJEU) has ruled that harmonised technical standards – an influential form of governance – must be more accessible. Here’s what this landmark decision means.
Technical standardisation, which encompasses standards published by the International Organization for Standardization (ISO), has become a critical aspect of global regulation. Its scope has expanded far beyond goods, encompassing services, the environment, corporate social responsibility (ISO 26000) and anti-corruption measures (ISO 37000).
This trend is particularly evident within the European Union. The “new approach” to standardisation, launched in the 1980s by then European Commission president Jacques Delors, placed technical standards at the heart of the EU’s single market. The success of this approach, evidenced by the “CE” marking on products, was initially focused on goods and later extended to services. It plays a central role in the recent EU Artificial Intelligence Act, which requires AI computing services to comply with a series of technical standards, including for personal data security.
3,600 harmonised European standards
Over the past 30 years, the European Commission estimates that more than 3,600 “new approach” technical standards have been developed. The sectors covered by these standards represent over 1.5 trillion euros in annual trade – about 10% of the EU’s gross domestic product. These standards, developed by private bodies like the European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC), are voluntary and require manufacturers and service providers to pay a fee to access them. However, compliance is not optional, because aligning with these standards creates a presumption of conformity with EU law. Failure to comply means manufacturers must either withdraw their products or prove compliance through alternative, often costly, means.
Until recently, these fee-based standards were viewed as a form of self-regulation beyond judicial scrutiny. That changed in 2016 when the CJEU ruled in the James Elliott Construction case that these technical standards produce legal effects, making them “part of the law of the Union”.
Following this ruling, two non-profit organisations, Public.Resource.org and Right to Know, whose mission is to make the law freely accessible to all citizens, asked the European Commission for free access to four harmonised standards. The Commission denied the request, a decision upheld by the General Court of the European Union in July 2021.
On March 5, 2024, the CJEU, the supreme body of the European legal order, overturned the decision, finding that an overriding public interest justified the disclosure of the harmonised standards in question. Moving forward, the Commission will need to grant requests for free access to harmonised standards.
This jurisprudential development has turned the technical standardisation model on its head. Indeed, given that these standards are becoming legalised and will henceforth be free of charge, the production and funding methods of standardisation bodies and the intellectual property protections they rely on must be re-evaluated. This evolution could also be an opportunity to improve the legitimacy of these standards.
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Based on figures from CEN, the potential loss of revenue from making these standards freely accessible could amount to around 11% of the 19 million euros of average annual revenue, or around 2 million euros. This calculation was made by averaging the revenues reported as income for each year between 2019 and 2022 in the 2021 CEN annual report and the 2022 CEN annual report.
Governed by engineers
This amount does not appear to be insurmountable for the Commission to manage, but it should be accompanied by a systemic reform. This reform would aim to involve civil society organisations more effectively, ensuring that technical standards impacting fundamental principles are developed with a diverse range of perspectives in mind. The Commission is best positioned to verify the genuine involvement of all stakeholders and ensure that standards bodies take their input into account.
Technical standards produced by “engineers” are not merely technical, neutral or optional, but are powerful modes of governance that have significant political implications. Consequently, these standards must not escape a democratic adoption procedure and respect for the rule of law under the control of the courts. It is therefore incumbent on the EU’s institutional bodies – the Commission, the Parliament and the Council of the European Union – to stop basing public policies, especially non-economic ones, on technical standards.
The EU’s recent AI legislation illustrates this tendency. When public authorities rely on technical standards, it gives the impression that norm-setting is being outsourced, allowing authorities to bypass the political process. This approach may be pragmatic, but it is legally questionable. The CJEU’s recent rulings signal a need for EU public decision-makers to change their approach.