From National to European - And Back Again: Fixing the Flaws of the New Approach

Abstract

Harmonized standards are central to European policymaking. Traditionally intended to ensure technical harmonization and consumer safety, harmonized standards are increasingly becoming critical for regulating many societal aspects: to illustrate, the recently adopted AI Act outsources many legal and ethical decisions to the European standards bodies. In this setting, questions whether and how public interest is sufficiently safeguarded in the private setting of European standardizations are bound to arise.

Developed mainly by commercial entities, harmonized standards are under little – if any – control of civil society. Firstly, participation of societal stakeholders in technical standardization processes remains limited; secondly, despite the recent jurisprudence, access to harmonized standards remains challenging. Academic and policy discussions on these issues abound; however, the role of Member States, and more specifically National Standards Organizations in ensuring participation in and access to standards, tends to be sidestepped.

This paper examines two key transparency challenges posed by the New Approach: access to standardization processes and access to harmonized standards. It argues that although these issues are essentially European, their resolution depends on national institutions, which poses questions regarding the interplay between national and European accountability in standardization. Ultimately, it suggests possible solution to these challenges, placing them in the broader context of European standardization policy.

Keywords: New Approach, Transparency, Harmonized Standards, Copyright, AI Act