At the first hearing, the Gottfried Heinrich case is just an ordinary case: are people allowed to carry tennis rackets on board an airplane? However, its analysis discloses the implications that this case had for European Union regulations, especially with regard to the validity and enforceability of the Community regulation. Indeed, it is worth highlighting that this is an important constitutional case that changed the interpretation of the European Union regulation (Castle, 2010). The ruling made by the court of justice regarding the Gottfried Heinrich case changed the manner in which the European Union regulation is interpreted. This paper seeks to provide an analysis of the Heinrich case, looking at facts and its legal background, as well as the court judgment, with the aim of illustrating its importance as far as the European Union regulation is concerned.
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On his way to a tournament, Gottfried Heinrich, an amateur tennis player, attempted to board an airplane at Vienna-Schwechat Airport in September, 2005 (Bobek, 2009). However, he was stopped by the airport security due to the fact that his luggage included tennis rackets, and the security deemed that tennis rackets were articles prohibited by the European regulation. These articles were prohibited under points 4.1 and 4.3 as provided in the annex to European Regulation No. 2320 /2002 (Journal of Laws, 2004). This was further specified in Commission Regulation No. 622 /2003 annex (Journal of Laws, 2004). Therefore, in accordance with these provisions, Heinrich was barred from passing through the airport’s security control and could not take his flight.
This incident prompted Heinrich to lodge a written request with the Vienna-Schwechat Federal Police Director, asking to check with the administrative file regarding his case. Heinrich was particularly concerned with finding out the grounds under which the provision of the Austrian law barred tennis rackets from being considered as part of cabin luggage (Bobek, 2009). The director confirmed that the Austrian legislation in force was grounded on European Regulation No. 2320 /2002 and on Commission Regulations No. 622 /2003 annexes (Bobek, 2009). However, it is worth mentioning that the two annexes were not been published in the European Union Official Journal. Therefore, Heinrich appeared before the Independent Administrative Chamber concerned with the Land of Lower Austria, seeking an affirmation that the actions taken against him were against the law. In its reference, the chamber highlighted that the due Community regulation publication is considered as the last step when it comes to the process of law making; there is no applicable legal norm without it (Bobek, 2009). The deliberate withholding of lawful norms that individuals are subject to was found to be a serious infringement of the rule of law (Majone, 2002). In addition, the unpublished measure was considered legally non-existent, and it was therefore deemed not legally binding. The Austrian court moved to the Court of Justice to seek clarifications regarding whether the unpublished parts or the entire regulations not provided in the Official Journal could be considered legally binding (Paul, 2000).
In December 2002, during the post-9/11 wave of anti-terrorist legislation, Regulation No. 2320/2002 was adopted by the European Parliament and the Council on Aviation Security (Regulation of the European Parliament and of the Council, 2001; Council of the European Union, 2007). This regulation was aimed at establishing suitable Community measures with the purpose of avoiding acts of illegal hindrance against civil aviation (European Commission, 2007). These measures are found in a large annex to the Regulation. To be more specific, Points 4.1 and 4.3 of the annex document common basic standards regarding the screening of departing passengers, along with their cabin luggage. In Point 4.3 of the Regulation, the security services are permitted to take away any prohibited articles owned by passengers or bar passengers from accessing the security restricted area. Point 1.18 defines prohibited articles as objects that could be used to commit acts of illegal interference and those that have not been declared appropriately and depend on the applicable regulations and laws (European Commission, 2007). The indicative list containing the prohibited articles is contained in the attachment to Regulation No. 2320/2002. This entails bludgeons: blackjacks, billy clubs, baseball clubs or similar instruments. Additional implementation of this regulation was conducted by Commission Regulation No. 622/2003 that was established in April 2003, stipulating the measures for the execution of the common basic standards regarding aviation security (European Commission, 2007). However, it is worth mentioning that these measures are implemented in accordance with Article 3 as stipulated in the Regulation, stating secret and not published. The regulation provides that the content of the annex be made available to people that have only been authorized by the Commission or the Member State (Castle, 2010).
Judgment of the Court
The court’s reasoning on merits restates that a Community regulation cannot be considered legally binding if it has not been published in the European Union’s Official Journal. This therefore implies that the regulation cannot be imposed against individuals that have not had the opportunity to familiarize themselves with it. In this case, legal certainty is considered as the underlying principle. The role of publishing, however, is not restricted to Community measures, but also incorporates national measures that are considered when implementing the Community legislation (Hix, 1999). It is important to highlight the fact that the main question in this case was to find out whether or not the annex to Regulation No. 622 /2003 was aimed at imposing obligations on individuals. This issue was not directly addressed by the court, as it just considered that the annex to Regulation 2320/2002 may intend to impose obligations on individuals (Alec, 2004). Therefore, the court declared that it is possible that the measures provided in Regulation No. 622/2003 also relate to the list of the prohibited articles as provided in Regulation No. 2320/2002 and thus might also enforce obligation on individuals.
After scorning the inconsistency of the Commission with regard to the contested measures, the court affirmed that Regulation No. 2320/2002 did not offer the Commission the power to diverge from the general publication-related requirements regarding the implementation of the legislation as provided in Article 254 of the European Constitution (Alec, 2004). Therefore, basing on the measures stipulated regarding the implementation of the Community regulation, the court ruled out that a Community regulation aimed at imposing obligations on individuals must be published in the European Union Official Journal (Bermann, 2004). With regard to the Heinrich’s case, the court declared that the annex to Commission Regulation No. 622/2003 detailing the measures for the execution of general basic standards regarding aviation security, as modified by Commission Regulation No. 68/2004 that was not published in the European Union’s Official Journal, had no binding force, as much as it intended to enforce obligations on individuals. Therefore, the annex to Regulation 622/2003 that stipulates the measures regarding the implementation of common basic standards of aviation security having not been published in the Official Journal of the European Union could not be considered as legally binding, especially considering the fact that it intended to enforce obligations on individuals (European Commission, 2007). Above all, measures regarding the list of articles forbidden on board an aircraft and in security restricted areas appended as an annex to Regulation 2320/2002 detailing general rules connected with civil aviation security cannot be therefore imposed against individuals (Alec, 2010). With that in mind, as provided in Article 254 (2) of the European Union Commission, it is apparent that a Community regulation cannot be considered legally enforceable if it has not been published in the Official Journal. Furthermore, an act that is adopted by a Community institution cannot be imposed against legal and natural persons within a Member State before being offered the opportunity to make themselves familiar with the proper publication of the regulation as provided in the Official Journal. In particular, the principle of legal certainty holds that Community regulations allow the concerned to precisely understand the scope of the obligations that are imposed on them (Robin, 2009). Therefore, individuals have to be aware of and capable of establishing explicitly what their obligations and rights are, along with necessary steps that are required to ensure the regulations are legally binding. The measures regarding the adaptation of the forbidden articles have to be therefore published in the Official Journal of the European Union if it intends to impose legal obligations against individuals. The aspect regarding whether the measures and the concerned rules enforce obligations on individuals or compel the Member States to do so is thus considered as being irrelevant in this case. In addition, Article 4 (2) of Regulation No. 2320/2002 does not offer the Commission. In the practice of its power of execution under the provision, any lawful ground for making use of the rules of confidentiality as provided in Article 8 of the same regulation to the measures for the implementation of the list of forbidden articles is appended as an annex to Regulation 2320/2002.
Analysis of the Case Ruling
It is worth mentioning that in reaching a decision, the court obtains inspiration from the constitutional traditions that are common among the Member States (Simon, 2005). This means that a comparative analysis regarding the legal principles and laws of the Member States is carried out (Stefan, 2008). However, it is also necessary to mention that a comparative analysis regarding the status of unpublished regulations within the Members States legal orders could have been of significant help for reaching a conclusion on the Heinrich case. An analysis of the major legal systems within the European Union illustrates three diverging approaches concerning the issues as to how unpublished legislation could be dealt with. The British approach highlights that the publication of the legislation contains no effect on its enforceability and validity (Craig, & Búrca, 2011). The French approach states that the publication of the legislation is considered as a condition for it to be enforced, though this is not a condition for its validity. The German approach that was adopted in the Post-Communist New Member States also states that the publication of legislation acts as a condition for it to be considered as valid, which therefore is its bare official existence. However, not considering the sociological and historical context as has been outlined, it is apparent that the Commission’s position as far as the Heinrich case is concerned is actually unstable (Craig, & Búrca, 2011). According to the court, the Commission was not consistent in stating whatever it wished to attain with Regulation No. 622/2003 together with amending Regulation No. 68/2004 (Annual Report, 2007). On the contrary, it could be deduced from the amending regulation’s third recital that the intention of coming up with this secret regulation was to bring in a harmonized list of items that are accessible to the public and that would explain what the prohibited articles are (Lungescu, 2004). However, a reasonable approach would be to have the list published in order to provide individuals with the opportunity to understand and thus comply with it.
The case that the Commission intended to notify the public regarding their activities basing on the secret regulation could be deduced from the fact that after the implementation of Regulation No. 622/2003, the Commission had to publish a press release detailing a list of the prohibited articles that passengers were banned from carrying into the aircraft cabin and the security restricted area (Commission Press Release, 2004). In addition, the press release also declared that the new legislation demanded that national authorities notify passengers regarding the content of the list before the completion of the check-in procedure (Commission Press Release, 2004; Mahony, 2007). It appears as if Austrian Airlines and the Austrian authorities displayed the list. However, despite the fact that the Court of Justice did not highlight this issue, the fact that the obligations were not published in the form of a press release using the Community languages does not make it adequate enough to replace the obligatory publication in the Official Journal (Craig, & Búrca, 2011).
It is also important to note that the court permitted a grey zone regarding the activities of the Community institutions, which allowed institutions to adopt secret regulations and hold back information and detailed legislative schemes that will never be seen by the public (Lamming, 2004). This grey zone regarding institutional activity will therefore be entered by accident, for instance when there is one individual who is aware of and disapproves such practices claiming that the measures imposed an obligation to him (Bobek, 2007). With regard to the Heinrich case, the court ruled out that no obligation could be imposed on individuals if it had not been published in the Official Journal (Iey & Peter, 2008). From this ruling, it is obvious that the court appears to have parted from the idea that a community legislation has to be published for it to be considered valid (Craig, & Búrca, 2011). The Commission’s reaction to the court’s opinion was to come up with a new regulation, Commission Regulation No. 820/2008, illustrating measures required for the execution of common basic standards regarding aviation security, revoking the initial Regulation No. 622/ 2003 (Charter, 2007). This list containing the prohibited articles is currently illustrated in Point 4. 1. 1 of the annex to the current Regulation, incorporating such items as fishing rods, skateboards, and kayaks (Waele, 2005).
Importance of the Case
It is important to note that this case is not just an ordinary case, but one that changed the interpretation of the European Union regulation. This specifically concerns the interpretation of the Community legislation. It is worth mentioning that before the court’s ruling regarding the Heinrich case, due publication of the Community legislation was taken as a condition for it to be considered as a valid legislation (Mulvey, 2003). However, following the ruling of the Heinrich case, the court parted from this idea highlighting that the publication of the legislation in the Official Journal of the European Union was a condition for enforcing obligations on individuals (Craig, & Búrca, 2011). The European Court of Justice ruled out that a secret regulation cannot be imposed on individuals. This is backed by provisions of Article 254 (2) of the European Constitution (Community Law, 1989). In addition, it was pointed out that an act adopted by the Community institution cannot be enforced on individuals before they are given the opportunity to familiarize with it.
Basically, from the analysis and rulings of the Heinrich case, the most significant thing about this case is that it altered the manner in which the Community regulation is interpreted. A condition was made that a Community regulation has to be published in the Official Journal of the European Union for it to be considered as legally binding. Furthermore, having the regulation published will enable those that are concerned to precisely understand the scope of the obligations that have been imposed on them. This therefore implies that the Commission is required to seriously understand the character of the legislation being adopted, highlighting which parts require to be kept secret, and which ones have to be publicized. For the secret parts, there is no need to have them published in the Official Journal, while the parts that are intended to be used against individuals have to be published. This is the only way a Community regulation would be considered to be legally binding. However, it is important to note that a Community legislation can be considered valid without being published in the Official Journal; however, it can only be considered legally binding after its publication.
From the facts and analysis of this case, it is important to note that it contains significant implications, especially with regard to the interpretation of the community regulation. According to the ruling made by the European Court of Justice, it is necessary that a Community regulation should be published in the Official Journal so that it may be considered as legally binding. In addition, having the regulation published will also allow the concerned to get acquainted with it. However, the most outstanding thing about this case is that it made it clear that a Community regulation had to be publicized by having it published in the Official Journal for it to become legally binding.
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