A recent judgment of the Court of Justice – Case C-345/06 Gottfried Heinrich – sets out the principle that part of a regulation that has not been published cannot be enforced against an individual who cannot, by the very nature of things, know what the regulation in questiàon lays down.
The facts of the case are really remarkable. Mr Heinrich tried to board an aircraft at Vienna airport but he was intercepted by airport security. Why ? Because he was carrying tennis rackets in his carry-on luggage. Airport security considered that tennis rackets were articles prohibited by a series of EU regulations on aviation security.
First, Regulation 2320/2002 of the European Parliament and Council on aviation security provided for common basic standards applicable to aviation security measures and the annex stated in general terms, the kind of items that would be prohibited on board aeroplanes, which 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 The regulation also provided that some measures would not be published but only made available to the competent authorities. That regulation and the annex were published.
Then the Commission adopted Regulation 622/2003 implementing Regulation 2320/2002. Its annex, amended in 2004, set out the kind of prohibited items but 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.
Anyway, Mr Heinrich, doubtless a man of as much character as he is keen on his tennis, tried to board his plane nevertheless. The security staff took the view that a man of character with tennis rackets posed a clear and present danger to aviation security and ordered him off the plane.
Mr Heinrich brought an action before the competent Austrian Administrative Court seeking a declaration that the measures taken against him were illegal. The Austrian court asked the Court of Justice whether regulations or its unpublished parts in the Official Journal may have binding force.
The Court of Justice held that an unpublished regulation or part of a regulation cannot impose obligations on individuals.
It recalled that, under Article 254(2) EC, regulations of the Council and of the Commission are published in the Official Journal and enter into force on the date specified in them or, if not so specified, on the twentieth day following that of their publication. Consequently, an EU regulation cannot take effect in law unless it has been published in the Official Journal (see Case C-161/06 Skoma-Lux, paragraph 33 - a case we noted here). Also, an act adopted by an EU institution cannot be enforced against natural and legal persons in a member State before they can make themselves acquainted with it by its proper publication in the Official Journal (Skoma-Lux, paragraph 37).
The Court also held that the principle of legal certainly requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case C-158/06 ROM-projecten, paragraph 25).
The Court made clear that those principles must also be observed, and have the same consequences, where EU legislation obliges member States to adopt measures imposing obligations on individuals. The measures adopted by the member States to implement EU law must comply with the general principles of that law (see, Case C-313/99 Mulligan and Others, paragraphs 35 and 36, and Case C‑384/05 Piek, paragraph 34). Therefore, national measures which, to implement EU legislation, impose obligations on individuals, must be published in order for the individuals to be able to ascertain those obligations (see, to that effect, Mulligan and Others, paragraphs 51 and 52).
The Court emphasized that is all the more vital in the case of EU regulations since individuals must be able to request a national court to ascertain whether national implementing measures comply with an EU regulation (see, Case 230/78 Eridania‑Zuccherifici nazionaliand Società italiana per l’industria degli zuccheri, paragraph 34). In such a situation, not only the national legislation at issue must be published but also the EU regulation which forces the member States to take the measures imposing obligations on individuals.
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. It also finds 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. It 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.
By the way, you'll notice that the relevant annex is still not published or publicly available. Anyone for the rule of law ?
CORRECTION! Thanks to a commentator, we stand corrected: The annex is published - as an annex to Regulation 820/2008. The relevant part is section 4. But you will see that tennis rackets are not expressly listed but could be characterized as a "blunt instrument capable of causing injury". Funnily enough, skateboards are on the list even though they are more dangerous to those using them than to the general public. Regulation 820/2008 was adopted on August 8, 2008 and published on August 19, 2008, ahead of the Court of Justice ruling.