The law behind the paywall: accessing EU harmonised standards after Malamud

Abstract

In the European Union, harmonised standards are privately developed technical specifications that define how to comply with public laws, including those governing AI, robotics, and machinery. While this system supports timely and technically informed legislation, it also places legal compliance behind paywalls, undermining transparency and public access. In this article, we argue that such restricted access violates the rule of law. Drawing on the European Court of Justice’s landmark Malamud ruling, which held that harmonized standards incorporated into EU law must be freely accessible, we examine the legal and practical implications of this precedent in the context of robotics. Beyond our legal analysis, we provide concrete guidance on how persons in the EU can access harmonised standards in practice and address some open questions—such as whether related technical reports must be freely available and whether read‑only access satisfies the rule of law—that remain despite the Malamud judgment.