Court decision on accessibility of harmonised standards on toy safety

On 5 March 2024, the Court of Justice of the European Union delivered its judgment of case C-588/21 P on the accessibility of harmonised standards on toy safety. The Court ruled that European harmonised technical standards on the safety of toys should be accessible to EU citizens. This decision could have many implications, from the copyright protection of standards to their legal effect. Compliance with harmonised standards is generally voluntary. Nonetheless, there are cases where harmonised standards form part of the law. This case brought to Court concerns this second case.

Access request to harmonised standards which are part of EU law

In 2018, two non-profit organisations (Public.Resource.Org and Right to Know) requested the European Commission to be granted access to four harmonised technical standards on the safety of toys related to chemistry games and sets. After the Commission’s denial, the General Court of the European Union confirmed this refusal in 2021. This case was therefore brought for appeal to the Court of Justice of the European Union, which annulled the Commission’s decision and overruled the General Court’s decision.

The two non-profit organisations requested access to the following harmonised standards for the safety of toys:

  • 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”
  • Standard EN 12472:2005+A 1:2009, entitled “Method for the simulation of wear and corrosion for the detection of nickel released from coated items”

Specifically, the access requested concerns harmonised standards used to demonstrate conformity of the products. The Court of Justice of the EU recalls that citizens of the Union should be granted access to documents held by the European Parliament, Council and Commission. Given that there is no overriding public interest in the disclosure of such documents, a refusal to access these documents can be justified if this access can threaten the protection of commercial interests, such as intellectual property. In this case, the Court argued that the Commission should have recognised an overriding public interest in the disclosure of these harmonised standards arising from the principles of the rule of law, transparency, openness, and good governance. Access to those standards should be granted as they “form part of EU law owing to their legal effects”. Consequently, the initial decision must be annulled.

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