European Commission Will Not Publish Terror Objects List

In 2002, the Council and the European Parliament adopted a regulation establishing common rules in the field of aviation security such as searching and checking aircraft, screening of passengers, cabin baggage, staff and diplomats. One year later, the Commission adopted a regulation laying down measures for the implementation of the common basic standards on aviation security. The Annex containing a list of the prohibited items on airplanes was not published. The Annex was amended several times.

In September 2005, Gottfried Heinrich was ordered to leave an aircraft by the security staff of Vienna-Schwechat Airport for boarding the plane with tennis rackets in his baggage which are considered prohibited items. Heinrich has argued that such treatment was unfair since he was not informed in advance that rackets were a prohibited item. However he was not allowed by the security staff to see the official list of banned items. Gottfried Heinrich has decided to bring proceedings before the Independent Administrative Chamber for the Land of Lower Austria which has referred questions to the ECJ. The referring Court has pointed out that not only States but also individuals are required to base their conduct on such regulations yet this is not possible because the Annex containing prohibited items to take into airplanes was not published in the Official Journal and is consequently not accessible to the public.

On 10 April, the Advocate General, Eleanor Sharpston, delivered a very strong opinion in the case [Case C-345/06] against the Commission’s position. Article 254 of the EC Treaty requires regulations to be published in the Official Journal of the European Union. The Advocate General believes that the publication of the Commission regulation in 2003 without its Annex is an inadequate publication which therefore does not satisfy the requirements of that article. According to the AG “An annex is an integral part of a legislative measure.” Taking a different view would allow authors of the legislative measure to avoid publication requirements by including substantive provisions in an unpublished annex. According to the AG, “That is, indeed, precisely what the Commission sought to do in the present case.” Moreover she said that, “The reader cannot ascertain the effects of the regulation without having sight of the Annex, because the Annex contains the whole substance of the regulation.” The Advocate General has deemed the Commission explanation for the lack of publication as a “fundamental absurdity.” The European Commission published in January 2004 a press release which included a detailed list of prohibited articles that passengers were not allowed to carry onto flights. Tennis racquets are not in the list of prohibited articles.

However it is impossible to know if the press release list of prohibited articles is the same of that Annex without being aware of its text. According to the AG, if the Commission was required under regulation 2320/2002 to keep the list of prohibited articles secret, it has breached such requirements when it published the press release. On the other hand, if the Commission has deemed that the list is not covered by the secrecy obligation, it should have published it in the Official Journal. Moreover, the AG believes that “it is self-contradictory to state in the preamble to regulation No 68/2004 that ‘there is a need for a harmonised list, accessible to the public’ and then to fail to place such a list in the public domain.” The AG has stressed that the Commission deliberately adopted new measures and failed to publish the annex each time, so the failure to publish the list was not accidental. The Advocate General has suggested to the Court to declare the regulation non-existent. According to the AG, the “… persistent and deliberate disregard of the mandatory publication requirements in Article 254(2) EC in respect of the whole substance of the regulation – is one whose gravity is so obvious that it cannot be tolerated by the Community legal order.” The ECJ is not bound by the Advocate General’s Opinion. It remains to be seen if the ECJ reaches the same conclusion.

The Commission has recently adopted a regulation on common rules in the field of civil aviation security and repealing regulation (EC) No 2320/2002 which was published in the Official Journal on 9 April. According to the EU spokesman on transport issues, Michele Cercone, a list "of concerns to citizens" would be published soon.

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