A secret regulation cannot be enforced against individuals, ruled the European Court of Justice in a judgment announced on March 10, 2009. In Case C-345/06, proceedings brought by Gottfried Heinrich, the court established that a list of articles that are prohibited on board aeroplanes had no binding force on individuals because it had not been published in the Official Journal of the European Union.
In 2002 , during the post- 9/11 wave of anti-terrorist legislation, the European Parliament and Council adopted Regulation 2320/2002 on aviation security. The annex to the regulation provided for common basic standards, inter alia, the sort of items that would be prohibited on board aeroplanes. This list included “Bludgeons: Blackjacks, billy clubs, baseball clubs or similar instruments”. That regulation also stipulated that some measures would not be published but merely made available to the competent authorities.
In April 2003. the Commission adopted Regulation 622/2003 which implemented Regulation 2320/2002. The list of banned items was set out in an annex which was never published even though the preamble to the regulation underscored the need for passengers to be clearly informed of the rules relating to prohibited articles. In an apparent contradiction, the implementing legislation also contained an article entitled “Confidentiality” which states that the measures laid down in the annex shall be secret and not published. The annex was not published in the Official Journal.
In September 2005, Gottfried Heinrich, an amateur tennis player, on his way to a tournament, attempted to board an aeroplane at the Vienna airport. He was stopped at security control because he had tennis racquets in his cabin baggage, and the racquets were deemed to be prohibited articles by EC regulations. Despite this, he boarded the plane with his tennis racquets, but the security staff ordered him to leave the aircraft.
The disgruntled Heinrich subsequently brought an action before the Austrian national court seeking declaratory relief to the effect that the measures taken against him were illegal. The Austrian court referred the case to the European Court of Justice for a preliminary ruling on the question of whether regulations or parts thereof which have not been published in the Official Journal may, nonetheless, have binding force.
The Grand Chamber of the Court of Justice ruled that the register of restrictions could not be enforced because passengers had no way of knowing what was prohibited. The fundamental absurdity of passengers not being informed of the contents of the list renders the restrictions unenforceable. The Court pointed out that Article 254 EC provides that a Community regulation cannot take effect in law unless it has been published in the Official Journal. Furthermore acts adopted by Community institutions as well as national measures implementing Community legislation cannot be enforced against individuals before they have had the opportunity to learn of its existence by publication in the Official Journal.
This ruling was welcomed, not only by Heinrich, whose claim will now be determined by the national court, but also by several MEP’s who criticized the the European Commission and EU governments for using Kafkaesque methods.
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