| EUROPEAN COMMUNITY — Council Regulation — Validity — Unpublished annex — Regulation laying down measures on aviation security — Articles prohibited on board aircraft listed in annex to Regulation — Annex not published in Official Journal — Whether binding — EC Treaty, art 254EC — Parliament and Council Regulation (EC) No 1049/2001, arts 2(3), 3(a) — Commission Regulation (EC) 622/2003 (as amended by Commission Regulation (EC) 68/2004), annex
Proceedings brought by Gottfried Heinrich (Case C – 345/06); [2009] WLR (D) 93
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Lenaerts, Ilesic, Tizzano, Cunha Rodrigues, Silva de Lapuerta, Malenovsky, Klucka, Arabadjiev and Toader: 10 March 2009
The annex to Commission Regulation (EC) 622/2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation (EC) 68/2004, had no binding force in so far as it sought to impose obligations on individuals because it had not been published in the Official Journal of the European Union.
The Grand Chamber of the Court of Justice of the European Communities so ruled on a reference for a preliminary ruling from the Unabhangiger Verwaltungssenat im Land Niederosterreich in the course of an action brought by Mr Heinrich against the Austrian authorities after they had refused him access on board an aeroplane on the ground that he was carrying tennis racquets in his cabin baggage, those objects being regarded by those authorities as articles prohibited by an unpublished annex to a civil aviation security regulation.
THE COURT said that art 2(1) of Parliament and Council Regulation (EC) No 1049/2001, regarding public access to European Parliament, Council and Commission documents, provided that any citizen of the Union had a right of access to documents of the institutions, subject to the principles, conditions and limits defined in that regulation. It was evident from the provisions of art 254(2)EC of the EC Treaty that a Community Regulation could not take effect in law unless it had been published in the Official Journal of the European Union: see Skoma-Lux (Case C-161/06 [2007] ECR I-10841, para 37. Moreover, an act adopted by a Community institution could not be enforced against natural and legal persons in a member state before they had had an opportunity to make themselves acquainted with it by its proper publication in the Official Journal. In particular, the principle of legal certainty required that Community rules enabled those concerned to know precisely the extent of the obligations which were imposed upon them. Individuals had to be able to ascertain unequivocally what their rights and obligations were and take steps accordingly: see ROM-Projecten (Case C-158/06) [2007] ECR I-5103, para 25. National measures which, to implement Community legislation, imposed obligations upon individuals, had to be published in order for the individuals to be able to ascertain those obligations. Since the annex to Regulation (EC) No 622/2003 was not published in the Official Journal, the measures adapting the list of prohibited goods, in so far as they are set out in that annex, could not be enforced against individuals. However, a declaration that the annex to Regulation (EC) No 662/2003 had no binding force in so far as it sought to impose obligations on individuals did not affect the obligations imposed on member states by Regulation (EC) No 2320/2002 in the field of civil aviation security, in particular those on the prevention of introducing prohibited articles into the security restricted areas or on board an aircraft. |
