62021CJ0588_RES
Case C‑588/21 P
Public.Resource.Org, Inc.andRight to Know CLG
v
European Commission and Others
Judgment of the Court (Grand Chamber) of 5 March 2024
(Appeal – Access to documents of the institutions of the European Union – Regulation (EC) No 1049/2001 – Article 4(2) – Exceptions – Refusal to grant access to a document whose disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual 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 good governance)
Judicial proceedings – Oral part of the procedure – Reopening – Obligation to reopen the oral part of the procedure in order to allow the parties to submit observations on points of law raised in the Advocate General’s Opinion – None
(Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 83)
(see paragraphs 47, 48)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the commercial interests of a given person – Overriding public interest justifying the disclosure of documents – Harmonised standards forming part of EU law – Free access to those standards arising from the principles of the rule of law and transparency
(Art. 15(3) TFEU; Charter of Fundamental Rights of the European Union, Art. 42; European Parliament and Council Regulations No 1049/2001, Art. 4(2), No 1907/2006 and No 1025/2012; European Parliament and Council Directive 2009/48)
(see paragraphs 66-69, 72-74, 77-83, 85)
Résumé
By upholding the appeal of Public.Resource.Org Inc. and Right to Know CLG, the appellants, brought against the judgment of the General Court in Public.Resource.Org and Right to Know v Commission, (
1
) the Court, sitting as the Grand Chamber, rules, for the first time, on the existence of an overriding public interest justifying the disclosure of harmonised standards adopted by the European Committee for Standardisation (CEN).
The appellants are non-profit organisations whose main focus is to make the law freely accessible to all citizens. On 25 September 2018, they made a request to the European Commission for access to four harmonised standards adopted by CEN, three of which concerned the safety of toys, and one the maximum nickel content for certain products. (
2
)
The Commission refused to grant the request for access on the basis of the first indent of Article 4(2) of Regulation No 1049/2001, (
3
) pursuant to which access to a document must be refused where disclosure would undermine the protection of the commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure.
The action, brought by the appellants against the Commission’s decision, was dismissed by the General Court in its entirety. They then brought an appeal before the Court of Justice, claiming that the General Court had erred in finding that there was no overriding public interest capable of justifying free access to the requested harmonised standards.
Findings of the Court
As a preliminary point, the Court recalls that the right of access to documents of the institutions of the European Union is wide in scope. (
4
) It states that those institutions may rely on an exception based on the protection of commercial interests of a given natural or legal person in order to refuse access to a document where disclosure would undermine the protection of those interests, including intellectual property. However, that exception is not applicable where there is an overriding public interest in disclosure of the document concerned.
In that regard, in the first place, the Court notes that the procedure for drawing up harmonised standards was laid down by Regulation No 1025/2012, (
5
) pursuant to which the Commission plays a central role in the European standardisation system. Thus, even if the development of those standards is entrusted to a body governed by private law, only the Commission is empowered to request that a harmonised standard be developed in order to implement a directive or a regulation. In that context, it determines the criteria as to the content to be met by the requested harmonised standard, sets a deadline for its adoption, supervises its development, provides financing and decides on the publication of the references to the harmonised standard concerned in the Official Journal of the European Union.
Moreover, although compliance with harmonised standards is not compulsory, products which comply with those standards benefit from a presumption of conformity with the essential requirements relating to them laid down in the relevant EU harmonisation legislation. (
6
) That legal effect, conferred by that legislation, is one of the essential characteristics of those standards and makes them an essential tool for economic operators, for the purposes of exercising the right to free movement of goods or services on the EU market.
The Court notes that, in the present case, three of the four requested harmonised standards which concern the safety of toys refer to Directive 2009/48 (
7
) and that their references were published in the Official Journal of the European Union. In accordance with Article 13 of that directive, toys which have been manufactured in compliance with those standards enjoy a presumption of conformity with the requirements covered by those standards. The fourth standard, which concerns maximum nickel content, refers to Regulation No 1907/2006 (
8
) and is, in the present case, manifestly mandatory, in so far as paragraph 3 of entry 27 of the table in Annex XVII to that regulation provides that, as regards nickel, the standards adopted by CEN are to be used as test methods for demonstrating the conformity of the products concerned with the requirements set out in that entry.
Consequently, the Court considers that the requested harmonised standards form part of EU law.
In the second place, the Court notes that it follows from Article 2 TEU that the European Union is based on the principle of the rule of law, which requires free access to EU law for all natural or legal persons of the European Union, and that individuals must be able to ascertain unequivocally what their rights and obligations are. (
9
) That free access must in particular enable any person whom legislation seeks to protect to verify, within the limits permitted by law, that the persons to whom the rules laid down by that law are addressed actually comply with those rules. Accordingly, by the effects conferred on it by EU legislation, a harmonised standard may specify the rights conferred on individuals as well as their obligations and those specifications may be necessary for them to verify whether a given product or service actually complies with the requirements of such legislation.
In those circumstances, the Court finds that there is an overriding public interest in the disclosure of the requested harmonised standards.
(
1
)	Judgment of 14 July 2021, Public.Resource.Org and Right to Know v Commission (T‑185/19, EU:T:2021:445).
(
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)	The standards in question were standard EN 71-5:2015, entitled ‘Safety of toys – Part 5: Chemical toys (sets) other than experimental sets’; standard EN 71-4:2013, entitled ‘Safety of toys – Part 4: Experimental sets for chemistry and related activities’; standard EN 71-12:2013, entitled ‘Safety of toys – Part 12: N-Nitrosamines and N-nitrosatable substances’; and standard EN 12472:2005+A 1:2009; ‘Method for the simulation of wear and corrosion for the detection of nickel released from coated items’ (‘the requested harmonised standards’).
(
3
)	Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(
4
)	That right of access to documents is guaranteed by the first subparagraph of Article 15(3) TFEU and by Article 42 of the Charter of Fundamental Rights of the European Union. It is implemented in particular by Regulation No 1049/2001.
(
5
)	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 Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ 2012 L 316, p. 12).
(
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)	Article 2(1) of Regulation No 1025/2012, read in the light of recital 5 thereof.
(
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)	Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys (OJ 2009 L 170, p. 1).
(
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)	Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as 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 (OJ 2009 L 164, p. 7).
(
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)	Judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others (C‑160/20, EU:C:2022:101, paragraph 41 and the case-law cited).