ECJ rules that four specific safety standards must be freely available

Language of doc : ECLI:EU:C:2024:201

JUDGMENT OF THE COURT (Grand Chamber)

5 March 2024 (*)

(Charm – Accumulate correct of entry to to paperwork of the establishments of the European Union – Regulation (EC) No 1049/2001 – Article 4(2) – Exceptions – Refusal to grant rep admission to to a doc whose disclosure would undermine the safety of enterprise pursuits of a pure or factual particular person, including psychological property – Overriding public interest in disclosure – Harmonised standards adopted by the European Committee for Standardisation (CEN) – Protection deriving from copyright – Principle of the rule of law – Principle of transparency – Principle of openness – Principle of appropriate governance)

In Case C‑588/21 P,

APPEAL below Article 56 of the Statute of the Court docket of Justice of the European Union, precipitated 23 September 2021,

Public.Resource.Org Inc., established in Sebastopol, California (United States),

Supreme-attempting to Know CLG, established in Dublin (Ireland),

represented by J. Hackl, C. Nüßing, Rechtsanwälte, and F. Logue, Solicitor,

appellants,

the numerous events to the proceedings being:

European Commission, represented by S. Delaude, G. Gattinara and F. Thiran, acting as Brokers,

defendant on the beginning instance,

European Committee for Standardisation (CEN), established in Brussels (Belgium),

Asociación Española de Normalización (UNE), established in Madrid (Spain),

Asociația de Standardizare din România (ASRO), established in Bucharest (Romania),

Association française de normalisation (AFNOR), established in La Plaine Saint‑Denis (France),

Austrian Standards Global (ASI), established in Vienna (Austria),

British Standards Establishment (BSI), established in London (United Kingdom),

Bureau de normalisation/Bureau voor Normalisatie (NBN), established in Brussels,

Dansk Normal (DS), established in Copenhagen (Denmark),

Deutsches Institut für Normung eV (DIN), established in Berlin (Germany),

Koninklijk Nederlands Normalisatie Instituut (NEN), established in Delft (Netherlands),

Schweizerische Normen-Vereinigung (SNV), established in Winterthour (Switzerland),

Normal Norge (SN), established in Oslo (Norway),

Suomen Standardisoimisliitto ry (SFS), established in Helsinki (Finland),

Svenska institutet för standarder (SIS), established in Stockholm (Sweden),

Institut za standardizaciju Srbije (ISS), established in Belgrade (Serbia),

represented by K. Dingemann, M. Kottmann and K. Reiter, Rechtsanwälte,

interveners on the beginning instance,

THE COURT (Grand Chamber),

aloof of K. Lenaerts, President, L. Bay Larsen, Vice‑President, A. Arabadjiev, A. Prechal, E. Regan and N. Piçarra, Presidents of Chambers, M. Ilešič (Rapporteur), P.G. Xuereb, L.S. Rossi, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, Judges,

Advocate General: L. Medina,

Registrar: M. Siekierzyńska, Administrator,

having regard to the written method and further to the listening to on 15 March 2023,

after listening to the Thought of the Advocate General on the sitting on 22 June 2023,

supplies the following

Judgment

1 By their allure, Public.Resource.Org Inc. and Supreme-attempting to Know CLG survey to bear living aside the judgment of the General Court docket of the European Union of 14 July 2021, Public.Resource.Org and Supreme-attempting to Know v Commission (T‑185/19, EU:T:2021:445, ‘the judgment below allure’), dismissing their action for annulment of Commission Resolution C(2019) 639 closing of 22 January 2019 (‘the choice at enviornment’), in which the European Commission refused to grant their quiz for rep admission to to four harmonised standards adopted by the European Committee for Standardisation (CEN).

Licensed context

Regulation (EC) No 1049/2001

2 Article 1 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 Could presumably also neutral 2001 referring to public rep admission to to European Parliament, Council and Commission paperwork (OJ 2001 L 145, p. 43), entitled ‘Reason’, supplies, in paragraphs (a) and (b) thereof:

‘The goal of this Regulation is:

(a) to justify the foundations, stipulations and bounds on grounds of public or inside of most interest governing the suitable of rep admission to to European Parliament, Council [of the European Union] and Commission (hereinafter called “the establishments”) paperwork provided for in Article [15 TFEU] in such one draw as to make optimistic the widest imaginable rep admission to to paperwork,

(b) to place rules guaranteeing the best imaginable bellow of this correct, …

…’

3 Article 2 of that legislation, entitled ‘Beneficiaries and scope’, lays down, in paragraphs 1 to some thereof:

‘1. Any citizen of the [European] Union, and any pure or factual particular person residing or having its registered space of labor in a Member Teach, has a correct of rep admission to to paperwork of the establishments, enviornment to the foundations, stipulations and bounds defined on this Regulation.

2. The establishments could presumably, enviornment to the an identical rules, stipulations and bounds, grant rep admission to to paperwork to any pure or factual particular person no longer residing or no longer having its registered space of labor in a Member Teach.

3. This Regulation shall apply to all paperwork held by an establishment, that is to say, paperwork drawn up or obtained by it and in its possession, in all areas of bellow of the European Union.’

4 Article 4 of that legislation, entitled ‘Exceptions’, supplies, in paragraphs 1, 2 and 4 thereof:

‘1. The establishments shall refuse rep admission to to a doc the build disclosure would undermine the safety of:

(a) the final public interest as regards:

– public safety,

– defence and militia issues,

– world family,

– the financial, monetary or financial policy of the Community or a Member Teach;

(b) privacy and the integrity of the individual, in particular in line with Community legislation referring to the safety of inside of most records.

2. The establishments shall refuse rep admission to to a doc the build disclosure would undermine the safety of:

– industrial pursuits of a pure or factual particular person, including psychological property,

– court proceedings and factual advice,

– the goal of inspections, investigations and audits,

except there is an overriding public interest in disclosure.

…

4. As regards third-rep collectively paperwork, the institution shall search the advice of the third rep along with a glimpse to assessing whether or no longer an exception in paragraph 1 or 2 is relevant, except it is definite that the doc shall or shall no longer be disclosed.’

5 Article 7 of that legislation, entitled ‘Processing of initial applications’, supplies, in paragraph 2 thereof:

‘Within the match of an total or partial refusal, the applicant could presumably, inside of 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to rethink its space.’

6 Article 12 of Regulation No 1049/2001, entitled ‘Grunt rep admission to in electronic originate or through a register’, lays down, in paragraph 2 thereof:

‘In particular, legislative paperwork, that is to say, paperwork drawn up or obtained all over procedures for the adoption of acts which can be legally binding in or for the Member States, must, enviornment to Articles 4 and 9, be made straight away accessible.’

Regulation (EC) No 1367/2006

7 Article 2 of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the applying of the provisions of the Aarhus Convention on Accumulate correct of entry to to Recordsdata, Public Participation in Resolution-making and Accumulate correct of entry to to Justice in Environmental Issues to Community establishments and our bodies (OJ 2006 L 264, p. 13), entitled ‘Definitions’, supplies, in paragraph 1(d)(i) thereof:

‘For the goal of this Regulation:

…

(d) “environmental records” approach any records in written, visible, aural, electronic or any numerous cloth originate on:

(i) the utter of the parts of the ambiance, akin to air and ambiance, water, soil, land, landscape and pure websites including wetlands, coastal and marine areas, biological vary and its parts, including genetically modified organisms, and the interaction amongst these parts;

…’

8 Article 6 of that legislation, entitled ‘Utility of exceptions touching on requests for rep admission to to environmental records’, lays down, within the key sentence of paragraph 1 thereof:

‘As regards Article 4(2), first and third indents, of Regulation [No 1049/2001], with the exception of investigations, in particular those touching on imaginable infringements of Union law, an overriding public interest in disclosure shall be deemed to exist the build the records requested relates to emissions into the ambiance.’

Regulation (EC) No 1907/2006

9 Entry 27 of the desk living out in Annex XVII to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 touching on the Registration, Evaluate, Authorisation and Restriction of Chemical substances (REACH), organising a European Chemical substances Agency, amending Directive 1999/Forty five/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well to Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, and corrigendum OJ 2007 L 136, p. 3), as amended by Commission Regulation (EC) No 552/2009 of 22 June 2009 (‘Regulation No 1907/2006’), supplies in respect of the stipulations of restrictions of nickel:

‘1. Shall no longer be aged:

(a) in any put up assemblies which can be inserted into pierced ears and numerous pierced parts of the human body except the fee of nickel liberate from such put up assemblies is much less than 0.2 [microgram(μg)]/cm²/week (migration limit);

(b) in articles meant to attain serve into sigh and prolonged contact with the pores and skin akin to:

– earrings,

– necklaces, bracelets and chains, anklets, finger rings,

– wrist-see cases, see straps and tighteners,

– rivet buttons, tighteners, rivets, zippers and steel marks, when these are aged in dresses,

if the fee of nickel liberate from the parts of these articles coming into sigh and prolonged contact with the pores and skin is elevated than 0.5 μg/cm²/week.

(c) in articles referred to in point (b) the build these bear a non-nickel coating except such coating is enough to make optimistic that the fee of nickel liberate from those parts of such articles coming into sigh and prolonged contact with the pores and skin will no longer exceed 0.5 μg/cm²/week for a duration of no longer much less than two years of fashioned use of the article.

2. Articles which can be the realm of paragraph 1 shall no longer be placed on the market except they conform to the requirements living out in that paragraph.

3. The standards adopted by [CEN] shall be aged as the take a look at methods for demonstrating the conformity of articles to paragraphs 1 and 2.’

Regulation (EU) No 1025/2012

10 Pursuant to recital 5 of Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Resolution 87/95/EEC and Resolution No 1673/2006/EC of the European Parliament and of the Council (OJ 2012 L 316, p. 12):

‘European standards play a necessary position within the course of the inside of market, to illustrate in the course of the use of harmonised standards within the presumption of conformity of products to be made available on the market with the typical requirements bearing on to those products laid down within the relevant Union harmonisation legislation. Those requirements must be precisely defined in expose to lead definite of misinterpretation on the fragment of the European standardisation organisations.’

11 Article 2 of that legislation, entitled ‘Definitions’, lays down, in paragraph (1)(c) thereof:

‘For the functions of this Regulation, the following definitions shall apply:

(1) “fashioned” approach a technical specification, adopted by a recognised standardisation body, for repeated or trusty application, with which compliance isn’t any longer compulsory, and which is one in every of the following:

…

(c) “harmonised fashioned” approach a European fashioned adopted on the root of a quiz made by the Commission for the applying of Union harmonisation legislation’.

12 Article 10 of that legislation, entitled ‘Standardisation requests to European standardisation organisations’, supplies, in paragraph 1 thereof:

‘The Commission could presumably within the course of the obstacles of the competences laid down within the Treaties, quiz one or a number of European standardisation organisations to draft a European fashioned or European standardisation deliverable inside of a living prick-off date. European standards and European standardisation deliverables shall be market-pushed, preserve in mind the final public interest as well to the policy targets clearly said within the Commission’s quiz and based fully on consensus. The Commission shall prefer the requirements as to the speak material to be met by the requested doc and a prick-off date for its adoption.’

13 Article 11 of that legislation, entitled ‘Formal objections to harmonised standards’, supplies, in paragraph 1 thereof:

‘When a Member Teach or the European Parliament considers that a harmonised fashioned does no longer entirely satisfy the requirements which it goals to duvet and which can be living out within the relevant Union harmonisation legislation, it shall tell the Commission thereof with a detailed clarification and the Commission shall, after consulting the committee living up by the corresponding Union harmonisation legislation, if it exists, or after numerous kinds of consultation of sectoral experts, prefer:

(a) to submit, no longer to submit or to submit with restriction the references to the harmonised fashioned eager within the Legit Journal of the European Union;

(b) to lend a hand, to lend a hand with restriction or to withdraw the references to the harmonised fashioned eager in or from the Legit Journal of the European Union.’

14 The imaginable grant of EU financing to the European standardisation organisations for standardisation activities is governed by Article 15 of Regulation No 1025/2012.

Directive 2009/Forty eight/EC

15 Article 13 of Directive 2009/Forty eight/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys (OJ 2009 L 170, p. 1), entitled ‘Presumption of conformity’, is worded as follows:

‘Toys which can be in conformity with harmonised standards or parts thereof, the references of which bear been published within the Legit Journal of the European Union, shall be presumed to be in conformity with the requirements covered by those standards or parts thereof living out in Article 10 and Annex II.’

Background to the dispute

16 The background to the dispute, as living out in paragraphs 1 to 4 of the judgment below allure, is as follows.

17 The appellants are non-profit organisations whose significant focal point is to make the law freely accessible to all citizens. On 25 September 2018, they made a quiz to the European Commission Directorate-General for Internal Market, Industrial, Entrepreneurship and SMEs, on the root of Regulation No 1049/2001 and Regulation No 1367/2006, for rep admission to to paperwork held by the Commission (‘the quiz for rep admission to’).

18 The quiz for rep admission to eager four harmonised standards adopted by CEN, in line with Regulation No 1025/2012, specifically, fashioned EN 71-5:2015, entitled ‘Safety of toys – Share 5: Chemical toys (models) numerous than experimental models’; fashioned EN 71‑4:2013, entitled ‘Safety of toys – Share 4: Experimental models for chemistry and linked activities’; fashioned EN 71‑12:2013, entitled ‘Safety of toys – Share 12: N-Nitrosamines and N-nitrosatable substances’; and fashioned EN 12472:2005+A 1:2009, entitled ‘Blueprint for the simulation of put on and wander and corrosion for the detection of nickel launched from lined objects’ (‘the requested harmonised standards’).

19 By letter of 15 November 2018, the Commission, on the root of the key indent of Article 4(2) of Regulation No 1049/2001, refused to grant the quiz for rep admission to.

20 On 30 November 2018, the appellants, pursuant to Article 7(2) of Regulation No 1049/2001, submitted a confirmatory application to the Commission. By the choice at enviornment, the Commission confirmed the refusal to grant rep admission to to the requested harmonised standards.

The action before the General Court docket and the judgment below allure

21 By application lodged on the Registry of the General Court docket on 28 March 2019, the appellants introduced an action for annulment of the choice at enviornment.

22 By expose of 20 November 2019, Public.Resource.Org and Supreme-attempting to Know v Commission (T‑185/19, EU:T:2019:828), CEN and 14 national standardisation our bodies, specifically, the Asociación Española de Normalización (UNE), the Asociaţia de Standardizare din România (ASRO), the Association française de normalisation (AFNOR), the Austrian Standards Global (ASI), the British Standards Establishment (BSI), the Bureau de normalisation/Bureau voor Normalisatie (NBN), Dansk Normal (DS), the Deutsches Institut für Normung eV (DIN), the Koninklijk Nederlands Normalisatie Instituut (NEN), the Schweizerische Normen-Vereinigung (SNV), Normal Norge (SN), the Suomen Standardisoimisliitto ry (SFS), the Svenska institutet för standarder (SIS) and the Institut za standardizaciju Srbije (ISS) (collectively, ‘the interveners on the beginning instance’), had been granted leave to intervene in Case T‑185/19 in enhance of the originate of expose sought by the Commission.

23 In enhance of their action, the appellants put ahead two pleas in law. By their first plea, they submitted, in substance, that the Commission had made errors of law and of assessment within the applying of the exception laid down within the key indent of Article 4(2) of Regulation No 1049/2001, on the grounds that, first, copyright safety could presumably no longer be relevant to the requested harmonised standards and, second, no hurt to the industrial pursuits of CEN and its national members had been established.

24 By their second plea, the appellants claimed that the Commission had erred in law as regards the absence of an overriding public interest, within the course of the which approach of the final clause of Article 4(2) of that legislation, and infringed the responsibility to utter reasons, because it had thought of that no overriding public interest, within the course of the which approach of that provision, justified the disclosure of the requested harmonised standards and it had failed to present enough reasons for its refusal to recognise the existence of such an overriding public interest.

25 In accordance to the key plea, the General Court docket, after noting, in paragraph 29 of the judgment below allure, that the goal of Regulation No 1049/2001 is to present the final public the widest imaginable correct of rep admission to to EU establishments’ paperwork and that, in line with Article 2(3) of that legislation, that correct covers each and each paperwork drawn up by those establishments and paperwork obtained from third events, which consist of any factual particular person, held, in paragraphs 30 and 31 of that judgment, that that correct is enviornment to sure limits based fully on public or inside of most interest grounds.

26 Within the key space, as regards the imaginable hurt to the safety of industrial pursuits deriving from copyright within the requested harmonised standards, and the eligibility of those harmonised standards for copyright safety even within the event that they originate fragment of EU law, the General Court docket, in paragraphs 40 to 43 of the judgment below allure, held, in substance, that it become once for the authority in receipt of a quiz for rep admission to to third-rep collectively paperwork to identify goal and consistent evidence able to confirming the existence of the copyright claimed by the third rep collectively eager.

27 In that regard, the General Court docket held, in paragraphs 47 and Forty eight of the judgment below allure, that the Commission become once entitled, with out committing any error, to gather that the threshold of originality to describe a ‘work’, for the functions of the case-law, and accordingly to be eligible for that safety, had been met within the case at hand to this point as considerations the harmonised standards in quiz.

28 To boot to, the General Court docket chanced on, in paragraph 54 of the judgment below allure, that the appellants had been substandard to say that, because the Court docket of Justice had held, within the judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821), that those standards shaped fragment of ‘EU law’, they opt to be freely accessible with out rate with the end result that no exception to the suitable of rep admission to can be applied to them.

29 Within the second space, to this point as considerations the argument alleging the dearth of copyright safety for the requested harmonised standards, within the absence of ‘inside of most psychological advent’, for the functions of the case-law of the Court docket of Justice, which is major in expose to benefit from such safety, the General Court docket held, in essence, in paragraph 59 of the judgment below allure, that that argument become once no longer sufficiently substantiated.

30 Within the third space, as regards the existence of an error of assessment as to whether or no longer protected industrial pursuits had been undermined, the General Court docket pointed out, in paragraphs 65 and 66 of the judgment below allure, that the sale of standards is a prime fragment of the standardisation our bodies’ industry model. To the extent that the Commission become once justified find that the requested harmonised standards had been covered by copyright safety, below which they had been accessible to eager events entirely after the associated rate of sure expenses, their disclosure for free on the root of Regulation No 1049/2001 become once akin to to specifically and in actuality bear an affect on the industrial pursuits of CEN and its national members. The General Court docket added, in paragraph 71 of that judgment, that the truth that the European standardisation organisations contributed to the efficiency of projects within the final public interest by providing certification companies bearing on to compliance with the relevant legislation did now not alter in any potential their space as inside of most entities engaged in an financial bellow.

31 Accordingly, the General Court docket rejected, in paragraph 74 of the judgment below allure, the key plea in its entirety.

32 The appellants’ second plea become once divided into three parts.

33 Touching on the third fragment of that plea, alleging an insufficient statement of reasons for the Commission’s refusal to recognise the existence of an overriding public interest, the General Court docket unprecedented, to begin with, in paragraph 86 of the judgment below allure, that, within the choice at enviornment, the Commission had said that the judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821), did now not originate an responsibility of proactive e-newsletter of the harmonised standards within the Legit Journal of the European Union, nor did it put an automated overriding public interest of their disclosure. Subsequent, in paragraphs 87 and 88 of the judgment below allure, the General Court docket also unprecedented that the Commission had rebutted the appellants’ claims linked to the tasks of transparency in environmental issues, deemed to be within the overriding public interest, when in contrast with the interest in preserving the industrial pursuits of a pure or factual particular person, and that the Commission had added that it had no longer been in an enviornment to identify any overriding public interest justifying such disclosure. Lastly, in paragraph 91 of the judgment below allure, the General Court docket added that, even when the Commission become once required to living out the reasons justifying the applying to the actual case of 1 in all the exceptions to the suitable of rep admission to provided for by Regulation No 1049/2001, it become once no longer on the replacement hand required to give more records than become once major in expose for the actual person requesting rep admission to to attain the reasons for its decision and for the Court docket to overview the legality of that decision.

34 As for the existence of an overriding public interest requiring free rep admission to to the law, the General Court docket chanced on, first, in paragraphs 99 to 101 of the judgment below allure, that, within the case at hand, the appellants had been attempting for to do away with entirely the class of harmonised standards from the scope of application of the system of substantive exceptions established by Regulation No 1049/2001, with out on the replacement hand substantiating the specific grounds which would bear justified the disclosure of the requested harmonised standards or explaining to what extent the disclosure of those standards must bear prevailed over the safety of the industrial pursuits of CEN or its national members.

35 2d, the final public interest in guaranteeing the lawful functioning of the European standardisation system, the neutral of which is to promote the free circulation of goods while guaranteeing an identical minimum level of safety in all European countries, prevails over the guarantee of freely available rep admission to to the harmonised standards with out rate.

36 Third, Regulation No 1025/2012 expressly supplies for a system of e-newsletter which is miniature to the references of harmonised standards and permits for paid rep admission to to those standards for those wishing to benefit from the presumption of conformity linked to them.

37 Fourth, the General Court docket held, in paragraphs 104 and 105 of the judgment below allure, that the Commission had no longer erred find, within the choice at enviornment, that there become once no overriding public interest justifying the disclosure of the requested harmonised standards below the final clause of Article 4(2) of Regulation No 1049/2001. The General Court docket added, in paragraph 107 of that judgment that, aside from the truth that the appellants did now not utter the specific offer of a ‘constitutional precept’ which would require rep admission to that is freely available and free of rate to harmonised standards, they did now not in any potential tell the motive those standards must be enviornment to the requirement of e-newsletter and accessibility linked to a ‘law’, inasmuch as those standards are no longer major, they form the factual effects linked to them entirely referring to the persons eager, and they could presumably be consulted for free in sure libraries within the Member States.

38 As far as considerations the existence of an overriding public interest increasing from the responsibility of transparency in environmental issues, the General Court docket chanced on, in paragraph 119 of the judgment below allure, that each and each the Convention on Accumulate correct of entry to to Recordsdata, Public Participation in Resolution-Making and Accumulate correct of entry to to Justice in Environmental Issues, signed in Aarhus on 25 June 1998 and authorized on behalf of the European Community by Council Resolution 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) and Regulation No 1367/2006 present for public rep admission to to environmental records both on quiz or as fragment of intriguing dissemination by the authorities and establishments eager. Nonetheless, since those authorities and establishments could presumably refuse a quiz for rep admission to to records the build that records falls within the course of the scope of a number of exceptions, they are below no responsibility actively to disseminate that records.

39 The General Court docket inferred therefrom, in paragraph 129 of that judgment, that the requested harmonised standards did now not attain within the course of the sphere of records which relates to emissions into the ambiance and could presumably presumably no longer resulting from this reality benefit from the applying of the presumption laid down within the key sentence of Article 6(1) of that legislation, based fully on which the disclosure of standards of that nature is deemed to be within the overriding public interest within the course of the which approach of Article 4(2) of Regulation No 1049/2001.

40 Because of this, in paragraph 130 of the judgment below allure, the General Court docket rejected the second plea in its entirety, and brushed off the action.

Kinds of expose sought by the events to the allure

41 By their allure, the appellants say that the Court docket of Justice must:

– living aside the judgment below allure and grant rep admission to to the requested harmonised standards;

– within the replacement, refer the topic serve to the General Court docket; and

– expose the Commission to pay the costs.

42 The Commission and the interveners on the beginning instance contend that the Court docket must:

– brush aside the allure and

– expose the appellants to pay the costs.

The application for the oral fragment of the tactic to be reopened

43 By a doc lodged on the Registry of the Court docket of Justice on 17 August 2023, the interveners on the beginning instance requested that the oral fragment of the tactic be reopened, in line with Article 83 of the Rules of Design of the Court docket of Justice.

44 In enhance of their application, they post that the Advocate General’s Thought, delivered on 22 June 2023, relies on a colossal number of assumptions which can be factually unsubstantiated, and even unfounded, which would require, on the least, a more thorough discussion. To boot to, they believe that an in-depth debate is the total more major because the Advocate General relied on unsuitable assumptions and the potential which she adopted in her Thought, in particular that based fully on which ‘the EU standardisation system does no longer in actuality require paid rep admission to to [harmonised technical standards]’, creates a possibility for the functioning of that system.

Forty five Pursuant to Article 83 of its Rules of Design, the Court docket could presumably at any time, after listening to the Advocate General, expose the reopening of the oral fragment of the tactic, in particular if it considers that it lacks enough records or the build a rep collectively has, after the stop of that fragment of the tactic, submitted a original reality which is of this kind of nature as to bear a decisive bearing on the choice of the Court docket, or the build the case must be determined on the root of an argument which has no longer been debated between the events or the eager persons referred to in Article 23 of the Statute of the Court docket of Justice of the European Union.

46 That isn’t any longer the realm here. The interveners on the beginning instance and the Commission living out, on the listening to, their assessment of the correct context of the dispute. In particular, they had the chance to specific their views on the presentation of the info as living out within the judgment below allure and the allure, and to specify the reasons why, of their glimpse, the European standardisation system requires paid rep admission to to the requested harmonised standards. Accordingly, the Court docket considers, after listening to the Advocate General, that it has before it the total records major to present judgment.

47 Moreover, as regards the say that the Advocate General’s Thought incorporates pointers posing a possibility to the functioning of the European standardisation system, it must be borne in mind that the Statute of the Court docket of Justice of the European Union and the Rules of Design make no provision for eager events to post observations in line with the Advocate General’s Thought (judgment of 25 October 2017, Polbud – Wykonawstwo, C‑106/16, EU:C:2017:804, paragraph 23 and the case-law cited).

Forty eight Beneath the second paragraph of Article 252 TFEU, it is the responsibility of the Advocate General, acting with complete impartiality and independence, to make, in beginning court, reasoned submissions on cases which, in line with the Statute of the Court docket of Justice of the European Union, require the Advocate General’s involvement. On this regard, the Court docket isn’t any longer wander both by the conclusion reached by the Advocate General or by the reasoning which resulted in that conclusion. Because of this, a rep collectively’s difference with the Thought of the Advocate General, regardless of the questions that she or he examines in his or her Thought, can not in itself describe grounds justifying the reopening of the oral fragment of the tactic (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 31 and the case-law cited).

49 Within the sunshine of the foregoing, the Court docket considers that there is now not any such thing as a opt to reopen the oral fragment of the tactic.

The allure

50 The appellants put ahead two grounds in enhance of their allure. The first ground of allure alleges that the General Court docket erred in law in retaining that the requested harmonised standards descend within the course of the exception provided for within the key indent of Article 4(2) of Regulation No 1049/2001, which seeks to give protection to the industrial pursuits of a pure or factual particular person, including psychological property. The second ground alleges an error of law as regards the existence of an overriding public interest, within the course of the which approach of the final clause of Article 4(2) of that legislation, justifying the disclosure of those standards.

51 It is relevant to begin by inspecting the second ground of allure.

Arguments of the events

52 By their second ground of allure, the appellants say that the General Court docket erred in law in retaining that there become once no overriding public interest, within the course of the which approach of the final clause of Article 4(2) of Regulation No 1049/2001, justifying the disclosure of the requested harmonised standards.

53 Within the key space, the appellants criticise, in substance, the General Court docket for retaining, in paragraphs 98 to 101 of the judgment below allure, that they had no longer demonstrated the specific reasons justifying their quiz for rep admission to, based fully on the existence of an overriding public interest in disclosure of the requested harmonised standards.

54 In that regard, they say, to begin with, that the requested harmonised standards originate fragment of EU law, which must be freely available. Subsequent, they lend a hand that those standards issue traditional concerns for consumers, specifically, the safety of toys. Lastly, they argue that such standards are also obligatory for producers and all numerous members within the present chain, since there is a presumption of conformity with EU legislation, relevant to the products eager when the requirements laid down in those standards are met.

55 Within the second space, the appellants whinge that the General Court docket erred in law, in paragraphs 102 and 103 of the judgment below allure, find that the final public interest in guaranteeing the functioning of the European standardisation system prevails over the guarantee of freely available rep admission to to the harmonised standards with out rate.

56 Moreover, based fully on the appellants, the functioning of the European standardisation system isn’t any longer covered by the exception laid down within the key indent of Article 4(2) of Regulation No 1049/2001, which considerations best the safety of the industrial pursuits of a pure or factual particular person, including psychological property. By angry by that the final public interest in guaranteeing the functioning of the European standardisation system falls within the course of the scope of that provision, the General Court docket wrongly created an exception, which isn’t any longer provided for in that legislation.

57 Within the third space, the appellants whinge that the General Court docket erred in law, in paragraphs 104 and 105 of the judgment below allure, by endorsing the Commission’s assessment based fully on which the judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821), does no longer originate an responsibility of proactive e-newsletter of the harmonised standards within the Legit Journal of the European Union or put an automated overriding public interest of their disclosure.

58 In that regard, the requested harmonised standards must be thought of to be legislative paperwork because the tactic for his or her adoption constitutes a originate of ‘managed’ legislative delegation. In particular, references to such standards are published within the Legit Journal of the European Union and the Commission requires Member States to undertake every harmonised fashioned as a national fashioned with out modification, inside of six months. Moreover, e-newsletter within the Legit Journal of the European Union has the attain of conferring on products which can be covered by EU legislation and satisfy the technical requirements defined within the harmonised standards the benefit of a presumption of conformity with EU legislation.

59 Within the fourth space, the appellants say that the General Court docket erred in law, in paragraph 107 of the judgment below allure, when it said that harmonised standards form the factual effects linked to them entirely referring to the persons eager. That conclusion runs counter to the case-law of the Court docket of Justice based fully on which harmonised standards originate fragment of EU law.

60 The Commission, supported by the interveners on the beginning instance, contends, as a preliminary point, that the appellants’ line of argument is so general that it will also apply to any quiz for disclosure bearing on to a harmonised fashioned.

61 As regards the reasons specifically relied on by the appellants, the Commission observes, first, that, even when it considers that the requested harmonised standards accomplish indeed originate fragment of EU law, that does no longer mean that they must be freely available. 2d, as for the truth that those standards expose to concerns that are traditional to consumers, it observes that that argument is too general to take precedence over the reasons justifying the refusal to expose the paperwork at enviornment. Third, the interest in harmonised standards that producers and numerous members within the present chain bear in expose to form rep admission to to the inside of market can not be thought of an overriding public interest justifying the disclosure of those standards.

62 To boot to, it submits that freely available rep admission to to the harmonised standards with out rate would bear systemic effects on the interveners on the beginning instance, their psychological property rights and their industrial earnings. On this respect, the European standardisation system can not operate with out paid rep admission to to those standards, with the end result that the exception provided for in Article 4(2) of Regulation No 1049/2001 is relevant. In any match, there is now not any such thing as a overriding public interest justifying the disclosure of those standards.

63 In the end, the Commission states that harmonised standards are no longer drafted all over legislative procedures, nonetheless on the root of a mandate given by the Commission to a standardisation body following the adoption of a legislative act. Moreover, once adopted by a standardisation body, harmonised standards must be transposed into the national factual programs by the national members of that body, and in line with the inside of procedural rules of that body. In any match, the sigh rep admission to provided for in Article 12(2) of Regulation No 1049/2001 is also enviornment to the exception laid down within the key indent of Article 4(2) of that legislation.

64 Because of this, the Commission considers that the second ground of allure must be rejected.

Findings of the Court docket

65 By their second ground of allure, the appellants post, in substance, that the General Court docket erred in law in retaining that no overriding public interest, within the course of the which approach of the final clause of Article 4(2) of Regulation No 1049/2001, justified disclosure of the requested harmonised standards. Of their glimpse, there is, by virtue of the precept of the rule of law, which requires free rep admission to to EU law, an overriding public interest justifying rep admission to to those standards for all pure or factual persons residing or having their registered space of labor in a Member Teach, on the ground that those rules originate fragment of EU law.

66 As a preliminary point, it will be recalled that the suitable of rep admission to to paperwork of the establishments, our bodies, places of work and companies of the Union, in spite of their medium, is guaranteed to any citizen of the Union, and to any pure or factual particular person residing or having its registered space of labor in a Member Teach, by Article 15(3) TFEU and by Article 42 of the Charter of Most major Rights of the European Union (‘the Charter’). The bellow of that correct is, as regards rep admission to to Parliament, Council and Commission paperwork, governed by Regulation No 1049/2001, the goal of which, based fully on Article 1 thereof, is, inter alia, to ‘justify the foundations, stipulations and bounds’ of that correct, ‘in such one draw as to make optimistic the widest imaginable rep admission to to paperwork’ and to ‘put rules guaranteeing the best imaginable bellow of [that] correct’.

67 Article 2(1) of that legislation specifically supplies for a correct of rep admission to to paperwork of the Parliament, Council and Commission. Beneath Article 2(2) of that legislation, the establishments could presumably, enviornment to those rules, stipulations and bounds, grant rep admission to to paperwork to any pure or factual particular person no longer residing or no longer having its registered space of labor in a Member Teach.

68 In accordance to the key indent and the final clause of Article 4(2) of Regulation No 1049/2001, those establishments are to refuse rep admission to to a doc the build its disclosure would undermine the safety of enterprise pursuits of a pure or factual particular person, including psychological property, except there is an overriding public interest in disclosure.

69 It is thus obvious from the wording of that provision that the exception provided for therein isn’t any longer relevant the build there is an overriding public interest in disclosure of the doc eager.

70 In that regard, it will, within the key space, be recalled that the Court docket has already held that a harmonised fashioned, adopted on the root of a directive and the references to which bear been published within the Legit Journal of the European Union, kinds fragment of EU law owing to its factual effects (watch, to that attain, judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 40).

71 In particular, first, the Court docket has already held that harmonised standards could presumably be binding on the final public customarily so long as they themselves bear been published within the Legit Journal of the European Union (watch, to that attain, judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph Forty eight).

72 2d, as regards the tactic for drawing up harmonised standards, it will be unprecedented that that method become once laid down by the EU legislature in Regulation No 1025/2012 and that, in line with the provisions living out in Chapter III of that legislation, the Commission performs a central position within the European standardisation system.

73 Thus, it will be unprecedented, as the Advocate General did in aspects 23 to 31 of her Thought, that even when the approach of those standards is entrusted to a body governed by inside of most law, best the Commission is empowered to quiz that a harmonised fashioned be developed in expose to place in power a directive or a legislation. Beneath the final sentence of Article 10(1) of Regulation No 1025/2012, the Commission determines the requirements as to the speak material to be met by the requested harmonised fashioned and a prick-off date for its adoption. That pattern route of is supervised by the Commission, which also supplies financing in line with Article 15 of that legislation. In accordance with Article 11(1)(a) of that legislation, it is to prefer to submit, no longer to submit or to submit with restriction the references to the harmonised fashioned eager within the Legit Journal of the European Union.

74 Third, even when Regulation No 1025/2012 supplies, in Article 2(1) thereof, that compliance with harmonised standards isn’t any longer compulsory, products which follow those standards benefit, as is evident from recital 5 of that legislation, from a presumption of conformity with the typical requirements bearing on to them laid down within the relevant EU harmonisation legislation. That factual attain, conferred by that legislation, is one in every of the typical characteristics of those standards and makes them basically the most significant instrument for financial operators, for the functions of exercising the suitable to free circulation of goods or companies on the EU market.

75 Extra specifically, it will also set complicated, and even impossible, for financial operators to bear recourse to a method numerous than that of compliance with such standards, akin to an individual knowledgeable document, within the sunshine of the administrative difficulties and extra costs increasing therefrom (watch, to that attain, judgment of 12 July 2012, Fra.bo, C‑171/11, EU:C:2012:453, paragraphs 29 and 30)

76 Because of this, as the Advocate General seen in point 43 of her Thought, the build EU legislation supplies that compliance with a harmonised fashioned supplies rise to a presumption of conformity with the typical requirements of that legislation, that approach that any pure or factual particular person that desires effectively to enviornment that presumption in respect of a given product or provider must tell that that product or provider does no longer meet that fashioned or, alternatively, that that fashioned isn’t any longer fit for goal.

77 Within the hot case, three of the four requested harmonised standards, specifically, fashioned EN 71-5:2015, entitled ‘Safety of toys – Share 5: Chemical toys (models) numerous than experimental models’, fashioned EN 71‑4:2013, entitled ‘Safety of toys – Share 4: Experimental models for chemistry and linked activities’ and fashioned EN 71‑12:2013, entitled ‘Safety of toys – Share 12: N-Nitrosamines and N-nitrosatable substances’ take a look at with Directive 2009/Forty eight. Their references had been published within the Legit Journal of the European Union of 13 November 2015 (OJ 2015 C 378, p. 1). In accordance with Article 13 of that directive, toys which bear been manufactured in compliance with those standards rep pleasure from a presumption of conformity with the requirements covered by those standards.

78 As for fashioned EN 12472:2005+A 1:2009, entitled ‘Blueprint for the simulation of put on and wander and corrosion for the detection of nickel launched from lined objects’, it refers to Regulation No 1907/2006.

seventy nine Though, as is evident from paragraph 74 of the hot judgment, compliance with harmonised standards isn’t any longer customarily major, that fashioned is, within the hot case, glaringly major, since Regulation No 1907/2006 supplies, in paragraph 3 of entry 27 of the desk living out in Annex XVII thereto, that, as regards nickel, the standards adopted by CEN are to be aged as take a look at methods for demonstrating the conformity of the products focused on paragraphs 1 and 2 of entry 27.

80 Within the sunshine of the foregoing considerations, it must be held, in line with the case-law referred to in paragraph 70 of the hot judgment, that the requested harmonised standards originate fragment of EU law.

81 Within the second space, as the Advocate General unprecedented in point 52 of her Thought, Article 2 TEU supplies that the European Union relies on the precept of the rule of law, which requires free rep admission to to EU law for all pure or factual persons of the European Union, and that americans must be in an enviornment to study unequivocally what their rights and tasks are (judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 41 and the case-law cited). That free rep admission to must in particular allow any particular person whom legislation seeks to give protection to to verify, within the course of the boundaries accredited by law, that the persons to whom the rules laid down by that law are addressed in actuality follow those rules.

82 Accordingly, by the effects conferred on it by EU legislation, a harmonised fashioned could presumably specify the rights conferred on americans as well to their tasks and those specifications could presumably be major for them to verify whether or no longer a given product or provider in actuality complies with the requirements of such legislation.

83 Within the third space, it must be recalled that the precept of transparency is inextricably linked to the precept of openness, which is enshrined within the second paragraph of Article 1 and Article 10(3) TEU, in Article 15(1) and Article 298(1) TFEU and in Article 42 of the Charter. It makes it imaginable, inter alia, to make optimistic that the administration enjoys elevated legitimacy and is more effective and more responsible to the citizen in a democratic system (watch, to that attain, judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 35 and the case-law cited).

84 To that stay, a correct of rep admission to to paperwork is ensured below the key subparagraph of Article 15(3) TFEU and enshrined in Article 42 of the Charter, a correct which has been applied, inter alia, by Regulation No 1049/2001, Article 2(3) of which supplies that it applies to all paperwork held by the Parliament, the Council or the Commission (watch, to that attain, judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 36).

85 In those conditions, it must be held that there is an overriding public interest, within the course of the which approach of the final clause of Article 4(2) of Regulation No 1049/2001, justifying the disclosure of the requested harmonised standards.

86 Therefore, the General Court docket erred in law in retaining, in paragraphs 104 and 105 of the judgment below allure, that there become once no overriding public interest within the disclosure, pursuant to that provision, of the requested harmonised standards.

87 Because of this, the second ground of allure must be upheld and, with out it being major to confirm the key ground of allure, the judgment below allure must be living aside.

The action before the General Court docket

88 In accordance with the key paragraph of Article 61 of the Statute of the Court docket of Justice of the European Union, the Court docket of Justice is to quash the choice of the General Court docket if the allure is effectively based. It’ll also itself give closing judgment within the topic, the build the utter of the proceedings so permits. That is the realm within the hot case.

89 As is evident from paragraphs 65 to 87 of the hot judgment, the Commission must bear acknowledged, within the choice at enviornment, the existence of an overriding public interest, within the course of the which approach of the final clause of Article 4(2) of Regulation No 1049/2001, increasing from the foundations of the rule of law, transparency, openness and appropriate governance, and justifying the disclosure of the requested harmonised standards, since those standards originate fragment of EU law owing to their factual effects.

90 In those conditions, the choice at enviornment must be annulled.

Costs

91 Beneath Article 184(2) of the Rules of Design, the build an allure is effectively based and the Court docket itself supplies closing judgment within the case, the Court docket is to decide as to costs.

92 Beneath Article 138(1) of those rules, relevant to allure proceedings by virtue of Article 184(1) thereof, the unsuccessful rep collectively is to be ordered to pay the costs within the event that they bear been applied for within the a success rep collectively’s pleadings.

93 Within the hot case, because the appellants bear applied for costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs bearing on to each and each the proceedings before the General Court docket and the proceedings on allure.

94 In accordance to Article 184(4) of the Rules of Design, the build the allure has no longer been introduced by an intervener on the beginning instance, she or he could presumably no longer be ordered to pay costs within the allure proceedings except she or he participated within the written or oral fragment of the proceedings before the Court docket. The build an intervener on the beginning instance takes fragment within the proceedings, the Court docket could presumably prefer that she or he is to bear his or her enjoy costs. Since the interveners on the beginning instance participated within the written and oral parts of the allure proceedings before the Court docket, they must be ordered to bear their very enjoy costs.

On those grounds, the Court docket (Grand Chamber) hereby:

1. Sets aside the judgment of the General Court docket of the European Union of 14 July 2021, Public.Resource.Org and Supreme-attempting to Know v Commission (T‑185/19, EU:T:2021:445);

2. Annuls Commission Resolution C(2019) 639 closing of 22 January 2019;

3. Orders the European Commission to pay the costs bearing on to each and each the proceedings before the General Court docket of the European Union and the allure proceedings;

4. Orders the European Committee for Standardisation (CEN), the Asociación Española de Normalización (UNE), the Asociația de Standardizare din România (ASRO), the Association française de normalisation (AFNOR), Austrian Standards Global (ASI), the British Standards Establishment (BSI), the Bureau de normalisation/Bureau voor Normalisatie (NBN), Dansk Normal (DS), the Deutsches Institut für Normung eV (DIN), the Koninklijk Nederlands Normalisatie Instituut (NEN), the Schweizerische Normen-Vereinigung (SNV), Normal Norge (SN), the Suomen Standardisoimisliitto ry (SFS), the Svenska institutet för standarder (SIS) and the Institut za standardizaciju Srbije (ISS) to bear their very enjoy costs each and each in connection with the proceedings on the beginning instance and the allure proceedings.

Lenaerts

Bay Larsen

Arabadjiev

Delivered in beginning court in Luxembourg on 5 March 2024.

A. Calot Escobar

K. Lenaerts

* Language of the case: English.