Gottfried Heinrich.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Timmermans
• ECLI: ECLI:EU:C:2009:140
• Date: 10 March 2009
• Docket Number: C-345/06
• Procedure Type: Reference for a preliminary ruling

Case C-345/06

Gottfried Heinrich

(Reference for a preliminary ruling from the

Unabhängiger Verwaltungssenat im Land Niederösterreich)

(Article 254(2) EC – Regulation (EC) No 1049/2001 – Article 2(3) – Regulation (EC) No 622/2003 – Aviation security – Annex – List of articles prohibited on board aircraft – Not published – Binding force)

Summary of the Judgment

Transport – Air transport – Establishment of common rules in the field of civil aviation security – Regulation No 622/2003 – Annex

(Art. 254(2) EC; European Parliament and Council Regulation No 2320/2002, Arts 4(2) and 8; Commission Regulation No 622/2003, Annex)

The annex to Regulation No 622/2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Regulation No 68/2004, which was not published in the Official Journal of the European Union, has no binding force in so far as it seeks to impose obligations on individuals. In particular, the measures adapting the list of articles prohibited in the security restricted areas and on board an aircraft attached as an annex to Regulation No 2320/2002 establishing common rules in the field of civil aviation security, in so far as they are set out in the annex to Regulation No 622/2003, cannot be enforced against individuals.

In that regard, it is evident from the very wording of the provisions of Article 254(2) EC that a Community regulation cannot take effect in law unless it has been published in the Official Journal of the European Union.

Moreover, an act adopted by a Community institution cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union. In particular, the principle of legal certainly requires that Community 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.

The measures for the adaptation of the list of prohibited articles attached as an annex to Regulation No 2320/2002 must in any event be published in the Official Journal of the European Union in so far as they seek to impose obligations on individuals. The issue of whether those measures and the rules they concern directly impose obligations on individuals, or oblige the Member States to do so, is irrelevant in this connection. In both cases the measures must be published in the Official Journal.

In addition, Regulation No 2320/2002, specifically Article 4(2) thereof, does not grant the Commission, in the exercise of its power of implementation under that provision, any legal basis for applying the rules on confidentiality laid down in Article 8 of that regulation to the measures for the adaptation of the list of prohibited articles attached as an annex to Regulation No 2320/2002. It follows that, if Regulation No 622/2003 had in fact made adaptations to that list of prohibited articles, that regulation would, for that reason, have to be held invalid.

(see paras 42-44, 59-63, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

10 March 2009 (*)

(Article 254(2) EC – Regulation (EC) No 1049/2001 – Article 2(3) – Regulation (EC) No 622/2003 – Aviation security – Annex – List of articles prohibited on board aircraft – Not published – Binding force)

In Case C‑345/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria), made by decision of 26 July 2006, received at the Court on 10 August 2006, in the proceedings

Gottfried Heinrich

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), A. Rosas, K. Lenaerts and M. Ilešič, Presidents of Chambers, A. Tizzano, J.N. Cunha Rodrigues, R. Silva de Lapuerta, J. Malenovský, J. Klučka, A. Arabadjiev and C. Toader, Judges,

Advocate General: E. Sharpston,

Registrar: J. Swedenborg, Administrator,

having regard to the written procedure and further to the hearing on 13 November 2007,

after considering the observations submitted on behalf of:

– the Austrian Government, by G. Eberhard, acting as Agent,

– the Czech Government, by T. Boček and M. Smolek, acting as Agents,

– the Danish Government, by B. Weis Fogh, acting as Agent,

– the German Government, by M. Lumma and C. Schulze-Bahr, acting as Agents,

– the Greek Government, by G. Alexaki and M. Tassopoulou, acting as Agents,

– the French Government, by G. de Bergues and A.’L. Hare, acting as Agents,

– the Hungarian Government, by J. Fazekas, acting as Agent,

– the Polish Government, by E. Ośniecka-Tamecka and M. Kapko, acting as Agents,

– the Finnish Government, by E. Bygglin and J. Heliskoski, acting as Agents,

– the Swedish Government, by A. Falk, acting as Agent,

– the United Kingdom Government, by C. Gibbs and J. Stratford, acting as Agents,

– the European Parliament, by K. Bradley and U. Rösslein, acting as Agents,

– the Council of the European Union, by M. Bauer and E. Karlsson, acting as Agents,

– the Commission of the European Communities, by C. Ladenburger and R. Vidal Puig, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 April 2008,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 2(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and of Article 254(2) EC in conjunction with the Community legislation on civil aviation security.

2 That reference was submitted 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.

Legal context

The Community legislation on access to documents

3 Article 2(1) of Regulation No 1049/2001 provides that any citizen of the Union has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in that regulation.

4 Article 2(3) of that regulation states that it ‘shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’.

5 The term ‘document’ is defined in Article 3(a) of Regulation No 1049/2001 as ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’.

The Community legislation on civil aviation security

6 Regulation (EC) No 2320/2002 of the European Parliament and of the Council of 16 December 2002 establishes common rules in the field of civil aviation security (OJ 2002 L 355, p. 1).

7 According to Article 1(1) of that regulation, its main objective is to establish and implement appropriate Community measures, in order to prevent acts of unlawful interference against civil aviation.

8 Article 4(1) and (2) of Regulation No 2320/2002 provide:

‘1. The common basic standards on aviation security measures are based on the current recommendations of European Civil Aviation Conference (ECAC) Document 30 and are laid down in the Annex.

2. The necessary measures for the implementation and the technical adaptation of these common basic standards shall be adopted in accordance with the procedure referred to in Article 9(2), due consideration being given to the various types of operation and to the sensitivity of the measures relating to:

(a) performance criteria and acceptance tests for equipment;

(b) detailed procedures containing sensitive information;

(c) detailed criteria for exemption from security measures.’

9 Article 6 of Regulation No 2320/2002 provides:

‘Member States may apply, in compliance with Community law, more stringent measures than those laid down in this Regulation. As soon as possible after their application, Member States shall inform the Commission of the nature of these measures.’

10 Article 8(1) of Regulation No 2320/2002 concerning the dissemination of information provides:

‘1. Without prejudice to the public right of access to documents as laid down in Regulation (EC) No 1049/2001 …,

(a) the measures relating to

(i) performance criteria and acceptance tests for equipment;

(ii) detailed procedures containing sensitive information;

(iii) detailed criteria for exemption from security measures;

referred to in Article 4(2);

...

(c) ... shall be secret and not be published. They shall only be made available to the authorities referred to in Article 5(2), which shall communicate them only to interested parties on a need-to-know basis, in accordance with applicable...