In a contemporary era when the human rights, democracy, and the rule of law are under attack, Europe has asserted itself as the leading global digital steward for maintaining those values. However, doing so through its Digital Sovereignty initiatives is significantly dependent on the ability to produce timely technical standards that underpin the implementing legislation.

One of the most significant advances in European human rights, as well as its Digital Sovereignty efforts , occurred last year with the EU’s highest court—the European Court of Justice (ECJ)—handing down a digital transparency judgment. It was a case where the Irish Right to Know organisation sought child protection technical standards unencumbered by fees that enabled parents to understand the potential harm from toys. The Court’s own human rights counsel as well as the justices themselves held that “the rule of law, transparency, openness, and good governance” compelled availability of the standards—during the adoption process and afterwards. (Just to emphasize the rights forming the basis for the judgment, they are restated at the top of the ECJ document!)

The European Commission then implemented the judgment by, among other things, providing access under a long-standing Regulation on openness. As the regulation notes “Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down.”

A few weeks ago, a threat emerged to European human rights that has just publicly appeared. A pair of private Swiss standards publishing companies known as IEC and ISO filed an action against the European Commission in the European judicial system. These corporations publish standards that are incorporated by reference or re-sold as normative European digital technical specifications behind paywalls at enormous prices. They are among the last standards bodies that maintain these incongruous practices—in part because judicial bodies worldwide have upheld the human rights of openness and transparency, because ICT standards inherently require the widest proliferation to be effective, and because of significant competition from other international standards bodies.

The ISO/IEC complaint calls for “annulling the European Commission’s decision” to grant access to its standards pursuant to the ECJ Judgment. The arguments are stunning if not appalling.

The ISO/IEC asserts that “there is no overriding public interest” involved and that their “commercial interests” and “intellectual property” are more important than the European human rights underpinning the ECJ decision. The intellectual property argument is especially disingenuous given that the standards consist largely of publicly available government agency and industry information sources cobbled together by the two companies and marketed for governmental normative use at enormous prices. Most other international standards bodies do this for free because the marginal costs of the publication activity have become trivial. Both the ECJ’s special counsel in the Judgment as well as other courts have underscored that intellectual property reproduction rights are lost under these circumstances. The work lacks originality which is a basis for copyright protection against reproduction.

Going further, the ISO/IEC assert a vague nexus to multiple treaty agreements for which some kind of “conformity” is required. It is amusingly stated that this is “leading the contested decision into illegality.” Going even further into preposterous territory, the complaint asserts that “disclosure of International Standards would undermine the protection of the public interest as regards international relations.” In the vernacular, “that one doesn’t compute.” Nonetheless, the same assertion is repeated multiple times in the complaint.

The self-serving gets worse. The fifth ground of the complaint is that the EU’s “TBT [Technical Barriers to Trade] Agreement considers IEC and ISO standards key for reducing technical barriers to trade, and [it] entrusts IEC and ISO with tasks that include acting as depositary of notifications relating to the Code of Good Practice for the Preparation, Adoption and Application of Standards, tasks that WTO members do not expect IEC and ISO to carry out for free.” In other words, ISO/IEC expects payment for the standards “deposited” on its servers that it sells.

The European Union is now admired worldwide for its digital human rights stewardship. The threat to that stewardship should be rejected and the self-serving, anticompetitive arguments being advanced should be disdained.