DOC 24
Ref. Ares(2020)4117196 - 05/08/2020
EUROPEAN COMMISSION
Brussels, 6.3.2019
C(2019) 1924 final
Berlin
Germany
DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Subject:
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/6364
Dear
,
I refer to your letter of 18 January 2019, registered on the same day, in which you
submitted a confirmatory application in accordance with Article 7(2) of Regulation (EC)
No 1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter ʻRegulation (EC) No 1049/2001ʼ).
1.
SCOPE OF YOUR REQUEST
In your initial application of 30 November 2018, addressed to the Directorate-General for
Internal Market, Industry, Entrepreneurship and SMEs, you requested access to ‘the full
text of all published standards (2018/C 092/06) which are mandatory under Regulation
305/2011’.
1
Official Journal L 345 of 29.12.2001, p. 94.
2
Official Journal L 145 of 31.5.2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In the document to which you referred (2018/C 092/06)3, references to 444 harmonised
European standards in support of Regulation (EU) No 305/2011 of the European
Parliament and of the Council of 9 March 2011 laying down harmonised conditions for
the marketing of construction products and repealing Council Directive 89/106/EEC4
(hereafter ʻRegulation (EU) No 305/2011ʼ) were published in the Official Journal.
The European Commission has thus identified the full text of those published harmonised
European standards as falling under the scope of your request.
In its initial reply, the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs refused access to the documents concerned, based on the
exception provided for in Article 4(2), first indent (protection of commercial interests of
a natural or legal person) of Regulation (EC) No 1049/2001.
In your confirmatory application, you requested a review of this position. You underpin
your request with detailed arguments, which I address in the corresponding sections
below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation (EC) No 1049/2001, the Secretariat-General conducts a review of the reply
given by the relevant Directorate-General at the initial stage.
Having carried out a detailed assessment of your request in light of the provisions of
Regulation (EC) No 1049/2001, I wish to inform you that I confirm the refusal to grant
access to the documents concerned based on the exception of Article 4(2), first indent
(protection of commercial interests of a natural or legal person) of Regulation (EC) No
1049/2001.
2.1. Protection of commercial interests of a natural or legal person
Article 4(2), first indent of Regulation (EC) No 1049/2001 provides that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of commercial interests of a natural or legal person, including intellectual
property, […] unless there is an overriding public interest in disclosure’.
3 Commission communication in the framework of the implementation of Regulation (EU) No 305/2011
of the European Parliament and of the Council laying down harmonised conditions for the marketing
of construction products and repealing Council Directive 89/106/EEC (Publication of titles and
references of harmonised standards under Union harmonisation legislation), Official Journal C 92 of
9.3.2018, p. 139.
4 Official Journal L 88 of 4.4.2011, p. 5.
2
In line with the provisions of Regulation (EU) No 1025/20125, the European
Commission may request the European standardisation organisations, such as the
European Committee for Standardisation, to draft a European standard for the application
of legal requirements set out in EU legislation.
The harmonised European standards included in the requested documents aim to support
the legal requirements provided for in Regulation (EU) No 305/2011. The standards in
question support the above-mentioned legislation by providing the methods and the
criteria for assessing the performance of construction products in relation to their
essential characteristics.
In your confirmatory application, you argued that ʻlisting a standard in the list of
harmonised standards makes it mandatory for everyone, just like a law, and should
therefore also be accessible by everyone and not copyrighted at allʼ.
In line with the provisions of Regulation (EU) No 1025/2012, the European Commission
may ask the European standardisation organisations to draft a European standard for the
application of legal requirements set out in EU legislation. It needs to be emphasised that
a European harmonised standard, once adopted by the European Committee for
Standardisation, is transposed by each national standardisation body6 as an identical
national standard. In practical terms, transposition involves adding the reference in line
with the national nomenclature. The transposed standards (based on the harmonised
standards adopted by European Committee for Standardisation) are made available to the
public through the sales points of the national standardisation bodies, in the same way as
national standards. The European Committee for Standardisation itself does not make the
standards available to the public.
In this context, in your confirmatory application, you contested the position of the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, in so far
as the applicability of the exception in Article 4(2), first indent of
Regulation (EC) No 1049/2001 is concerned. In particular, you argued that ʻthe
documents requested do not benefit from the protection of copyrightʼ.
Contrary to what you stated, however, the documents in question are protected by
copyright. They do contain information that can be considered as factual or relating to
procedures. However, the texts of the standards, while taking into account the specific
requirements provided for in the legislation they support, were drafted by their authors in
a way that is sufficiently creative to deserve copyright protection. The length of the texts
implies that the authors had to make a number of choices (including in the structuring of
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, Official
Journal L 316 of 14.11.2012, p. 12.
6
https://standards.cen.eu/dyn/www/f?p=CENWEB:5.
3
the document), which results in the document being protected by copyright7.
Consequently, the document as a whole is an original work of authorship, deserving
protection under the copyright rules.
In this context, I would like to note that after the judgment in Case C-613/148, the
European Committee for Standardisation, together with European Committee for
Electrotechnical Standardisation9, issued a position paper10, in which they, as copyright
holders for European standards, explicitly considered that, on the basis of the judgment in
Case C-613/14, there were no grounds to challenge their copyright and distribution
polices of harmonised standards. Consequently, the European Commission considered
that the consultation under Article 4(4) of Regulation (EC) No 1049/2001 was not
necessary, as the position of the originator of the documents, the copyright holder in
question, was already made publicly known through the above-mentioned position paper.
In your confirmatory application, you further argued that ʻthe exception in Article 4,
paragraph 2, first indent would only be applicable if the European Committee for
Standardisation offered the standards itself, but not through their national members’, and
that ‘there cannot be a commercial interest of the copyright owner’.
As explained in the initial reply of the Directorate-General for Internal Market, Industry,
Entrepreneurship and SMEs, the national standardisation bodies, which are members of
the European Committee for Standardisation, require payment of a fee in order to acquire
a copy of any of the national standards transposing the harmonised standards. When
doing so, these bodies have to comply with Regulation (EU) No 1025/2012. In particular,
in order to strike a balance between the interest of the standardisation bodies to be
rewarded for their work and the interest of the enterprises to have access to the standards,
Article 6 of Regulation (EU) No 1025/2012 provides that “National standardisation
bodies shall encourage and facilitate the access of SMEs to standards and standards
development processes in order to reach a higher level of participation in the
standardisation system, for instance by […] applying special rates for the provision of
standards or providing bundles of standards at a reduced price”. Consequently, the
impact of the public disclosure of the harmonised standards included in the requested
documents on the commercial interests of the European Committee for Standardisation
and of its national members is evident. Economic operators and the public at large would
not be willing to pay a fee to obtain a copy of the standard if they could obtain it free of
charge from the European Commission. That, in turn, would have a negative impact on
the income gained from the fees, which would significantly decrease. Consequently, the
7
Judgment of the Court of Justice of 16 July 2009,
Infopaq International A/S v Danske Dagblades
Forening, C-5/08, request for preliminary ruling from the Danish Supreme Court, EU:C:2009:465
and Judgment of the Court of Justice of 1 December 2011,
Eva-Maria Painer v Standard
VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein
GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG, C-145/10, request for preliminary ruling from the Tribunal of Commerce in Vienna, EU:C:2011:798.
8 Judgment of the Court of Justice of 27 October 2016,
James Elliott Constructions Limited v Irish
Asphalt Limited, C-613/14, EU:C:2016:821.
9
CENELEC.
10 https://www.cencenelec.eu/News/Policy Opinions/PolicyOpinions/PositionPaper
Consequences Judgment Elliott%20case.pdf.
4
commercial interests of the European Committee for Standardisation and its members
would be undermined. It needs to be emphasised in this context, that the concept of
‘commercial interests’ protected by virtue of the exception in Article 4(2), first indent of
Regulation (EC) No 1049/2001, is not limited to the interests of companies and economic
operators, but may also encompass the interests of public bodies, or, as in the case at
hand, publicly recognised bodies tasked with functions in the public interest.11
Furthermore, the European Committee for Standardisation and its members contribute to
the performance of tasks of public interest, but remain, however, private entities
exercising an economic activity in a situation of competition on the relevant services
market.12
The fact that copies of harmonised standards are available for consultation free of charge
in public libraries does not change the above-mentioned conclusions. Indeed, the effect
of public disclosure of the documents in question under Regulation (EC) No 1049/2001
cannot be compared with the possibility to consult the document (on the spot) in public
libraries.
In the light of the above, it is evident that there is a reasonably foreseeable risk that the
public disclosure of the documents concerned would harm the interest protected by
Article 4(2), first indent of Regulation (EC) No 1049/2001.
3.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent of Regulation (EC) No 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest
must, firstly, be public and, secondly, outweigh the harm caused by disclosure.
In your confirmatory application, you argued that ʻwith the documents being protected by
copyright, and fees charged that are far above what individuals can or should spend to
check if a product is conformant, they have to rely on the self declaration of the
manufacturer, notified bodies or the institutions for market surveillance.ʼ
In this regard, it is important to repeat that harmonised standards under
Regulation (EU) No 305/2011 do not prescribe product features or their manufacturing
methods, but the methods and the criteria for assessing their performance. In this respect,
Regulation (EU) No 305/2011 differs from the general rules of the New Legal
Framework to which you refer.
Accordingly, pursuant to Article 6 of Regulation (EU) No 305/2011, the declaration of
performance provides information on the performance of a product obtained using the
assessment methods provided by the applicable harmonised standard. In line with this,
11 Judgment of the General Court of 6 December 2012,
Evropaïki Dynamiki v European Commission,
T-167/10, EU:T:2012:651, paragraph 85-86.
12 Judgment of the Court of Justice of 5 December 2018,
Falcon Technologies International LLC v
European Commission, T-875/16, EU:T:2018:877, paragraph 47.
5
the ʻCE markingʼ13 indicates that a performance of a construction product is in
conformity with its declared performance and that it has been assessed according to a
harmonised European standard. The results of this assessment can thus be trusted
throughout the construction value chain and be interpreted on the same basis across the
EU.
In order to safeguard the reliability and accuracy of the declaration of performance,
a system for the assessment and verification of constancy of performance has been
established under Regulation (EU) No 305/2011. According to Articles 28 and 60 of that
Regulation, the European Commission establishes which of the five different assessment
and verification of constancy of performance systems, defined in annex V of that
regulation, is applicable for a certain construction product, product family or essential
characteristic. While the assessment and verification of constancy of performance system
involves a self-declaration and monitoring by the manufacturer, for all construction
products which give rise to certain safety concerns a higher assessment and verification
of constancy of performance system applies. This means that large scale involvement by
an independent, objective and knowledgeable third party is ensured in the assessment and
periodic verification of the constancy of performance of such products.
In addition, EU Member States’ market surveillance authorities, established under
Regulation (EC) No 765/2008, must ensure that Regulation (EU) No 305/2011 is
complied with in their countries.
Through all these mechanisms, I believe that the public interest in the reliability and
accuracy of the declaration of performance is to a very high degree protected already by
Regulation (EU) No 305/2011 itself and therefore does not amount to an overriding
public interest that would outweigh the harm caused by the disclosure of requested
documents under Regulation (EC) No 1049/2011.
Finally, in your confirmatory application, you state that ʻin case of mandatory standards,
the public should be far more involved as if the industry is developing a standard for
voluntary use. This can only be achieved if every individual has the possibility to read,
evaluate and discuss every mandatory standard during its development as well as its
validity periodʼ.
In this context, I would like to underline that, contrary to what you state, individuals are
already involved in the development of harmonised standards in support of Union
legislation. In particular, they can contribute to the work of national standardisation
bodies, which, in turn, participate in the forum that elaborates the European harmonised
standards under the umbrella of the European Committee for Standardisation.
Consequently, I consider that, in the present case, there is no overriding public interest
that would outweigh the interest in safeguarding the commercial interests (including
copyright) of the European Committee for Standardisation and its members, falling under
13 ʻCE markingʼ is a certification mark that indicates conformity with health, safety, and environmental
protection standards for products sold within the European Economic Area.
6
the exceptions provided for in Article 4(2), first indent of Regulation (EC) No
1049/2001.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation (EC) No 1049/2001, I have considered the
possibility of granting partial access to the documents requested.
However, in light of the explanations provided above, no meaningful partial access that
would not undermine the protection of the interests provided for in Article 4(2), first
indent of Regulation (EC) No 1049/2001, is possible.
5.
MEANS OF REDRESS
I would like to draw your attention to the means of redress available against this decision.
You may either bring proceedings before the General Court or file a complaint with the
European Ombudsman under the conditions specified respectively in Articles 263
and 228 of the Treaty on the Functioning of the European Union.
Yours sincerely,
For the Commission
Martin SELMAYR
Secretary-General
7