What happens to freeware (non-FOSS, free-of-charge) projects under the CRA?

Freeware that is not free and open-source software (FOSS) is treated differently under the CRA. Unlike FOSS, which benefits from specific exemptions based on how it is developed and distributed, non-FOSS freeware does not qualify for these carve-outs.

The CRA's special provisions for open source apply only to software that meets the definition of "free and open-source software"—meaning software whose source code is openly shared under a licence that allows it to be freely accessible, usable, modifiable, and redistributable (Article 3(48)). Freeware that is distributed free of charge but without open source code and licensing does not meet this definition.

For freeware, the key question is whether it is supplied "in the course of a commercial activity" (Article 3(22)). Even software provided free of charge can fall within the CRA's scope if there is commercial intent—for example, if the software is used to monetise other services, collects personal data for non-security purposes, or serves as part of a broader business model.

If freeware is supplied in the course of a commercial activity, the person or entity distributing it under their name or trademark would be considered a manufacturer and must comply with full CRA obligations, including conformity assessment and CE marking requirements. The fact that no price is charged does not, by itself, place the software outside the CRA's scope.

For more on what constitutes commercial activity, see What does 'intention to monetise' mean under the CRA?.