Brussels, 10/03/2009 (Agence Europe) - In a judgement on Tuesday 10 March, the Court of Justice of the European Communities ruled that a list of articles prohibited on board aeroplanes cannot be enforced against individuals if it has not been published. The Court considers that a Community regulation not published in the EU Official Journal cannot take effect to impose obligations on individuals. The Commission, which responded immediately to the ruling, firmly stated through its spokesman's department that the list was public and had “never been secret” - although it had been for over four years. The list in question was the annex to a regulation adopted on 15 January 2004 by the Commission, aimed at implementing the Parliament and Council regulation of December 2002 on aviation safety. It is written in the annex in question, however, that “in accordance with Article 1 the annex is secret and shall not be published in the Official Journal of the European Union”. It will be necessary to wait until 19 August 2008 for a consolidated version of the 2004 regulation to be published in the Official Journal, a regulation that makes public a detailed list of articles prohibited on board aircraft (see EUROPE 9726).
The annex to the regulation on aviation security of December 2002 (EC 2320/2002) provides for common basic standards to be applicable to aviation security measures. Amongst other things, the annex stated in general terms, the kind of items that would be prohibited on board aeroplanes. These included “bludgeons: blackjacks, billy clubs, baseball clubs or similar instruments”. The regulation also provided that some measures would not be published but only made available to the competent authorities. In April 2003, the Commission adopted Regulation 622/2003 implementing Regulation 2320/2002 for which the annex, amended in 2004 (regulation no 68/2004), as the Court points out, “was never published even though the amending regulation emphasised, in the preamble, the need for passengers to be clearly informed of the rules relating to prohibited articles”.
On 25 September 2005, Gottfried Heinrich was stopped at the security control of Vienna-Schwechat Airport as his cabin baggage contained tennis racquets, considered to be prohibited articles by the Community regulations. He nevertheless boarded the aircraft with the tennis racquets in his baggage. Security staff subsequently ordered him to leave the aircraft. After this incident, Mr Heinrich brought an action before the Independent Administrative Chamber for the Land of Lower Austria, which in turn asked the European Court of Justice whether regulations or parts thereof which have not been published in the Official Journal may nonetheless have binding force.
In its judgement on Tuesday, the Court points out that a Community regulation cannot take effect in law unless it has been published in the Official Journal and, what is more, an act adopted by a Community institution cannot be enforced against individuals before they have had the opportunity to learn of its existence by proper publication in the Official Journal. The same principles apply to national measures implementing Community legislation.
The Court observes that Regulation 2320/2002 seeks to impose obligations on individuals in so far as it prohibits certain items on board aeroplanes, defined in a general manner, in a list attached as an annex to the regulation. Since the annex to Regulation 622/2003 was not published, the Court cannot hold that that annex also concerns the list of prohibited articles and therefore also seeks to impose obligations on individuals. It does not rule out, however, that this could be the case. The fact that the regulation amending Regulation 622/2003 states in the preamble thereto that there is a need for a harmonised list accessible to the public, setting out separately the prohibited articles, implies that the list annexed to Regulation 2320/2002 has in fact been amended. In any event, the alleged amendments at issue to the list of prohibited articles were not published in the Official Journal.
Next, the Court states that the list of prohibited articles does not fall within any of the categories of measures and information, which are treated as secret and which are not published under Regulation 2320/2002. Thus, the Commission could not apply the rules on confidentiality to the measures amending the list. If follows that “if Regulation 622/2003 had in fact modified that list of prohibited articles, that regulation would, for that reason, have to be held invalid”.
The Court therefore concludes that the annex to Regulation 622/2003 has no binding force in so far as it seeks to impose obligations on individuals.