In a judgment announced yesterday, the European Court of Justice has ruled that a secret list promulgated by the European Commission, specifying items to be prohibited from airline carry-on baggage, cannot be enforced against individual airline passengers because it was not made public:
The annex to Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation (EC) No 68/2004 of 15 January 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.
The decison means that the original plaintiff, Gottfried Heinrich, who was ordered off a plane before it departed from Vienna Airport because he had carried on an item on the secret list (to wit, a tennis racket), is now free to sue the airline and/or the airport operator in an Austrian court for damages.
In contrast with the case of Gilmore v. Gonzales, in which the U.S. Supreme Court declined to consider whether fundamental but arguably only implicit U.S. Constitutional principles forbid the enforcement of secret laws, this decision of the ECJ was based on the explicit requirement of European law for the publication of any regulation imposing obligations on individuals:
[U]nder Article 254(2) EC, regulations of the Council and of the Commission are published in the Official Journal of the European Union and enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. It is evident from the very wording of the provisions of that article 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.
Those principles must also be observed, and have the same consequences, where Community legislation obliges Member States, in order to implement it, to adopt measures imposing obligations on individuals….
As regards the list of prohibited articles, it is necessary to consider whether the unpublished Community legislation at issue in the main proceedings, namely the annex to Regulation No 622/2003, might have been intended to impose obligations on individuals….
The effect of points 4.1 and 4.3 of that annex is that all departing passengers and their cabin baggage are to be screened to prevent prohibited articles from being introduced into the security restricted areas and on board an aircraft. Any prohibited articles are removed from the passenger’s possession, or the passenger is denied access into the security restricted area or the aircraft, as appropriate. An indicative list of those prohibited articles is included in the attachment to that annex. Although those provisions appear to be addressed primarily to the competent authorities in the Member States, it cannot be denied that they also seek to impose obligations on individuals. [Internal citations omitted.]
The opinion of the advocate who initially heard arguments in the case and made recommendations to the Court (the usual procedure for the ECJ), contains a section headed “What ought the Commission to have done?” that tries to suggest alternate procedures that might have been used to accomplish the purposes of secret rulemaking and enforcement (with respect to some aspects of air transport security) without violating the publication requirement that provided the basis for this decision. But the advocate still clearly distinguished those rules that specify what travelers may and may not do from any security measure invisible to the public and genuinely warranting secrecy:
So far as the list of prohibited articles is concerned, it is abundantly clear to me that that list should not be secret, but public. It – and any other measures that, viewed objectively, do not need to be kept secret – should therefore be published in the Official Journal as an annex to a regulation.
Gimore v. Gonzales was the only case we are familiar with in the U.S. in which a (would-be) traveler has sought damages from an airline for refusing to transport them. In the European Union and most other countries, as in the U.S., airlines are common carriers legally obligated to transport all passengers paying the fare and complying with the conditions in their published tariff. It will be interesting to see if this decision will lead to more lawsuits against airlines for refusal of transportation on the basis of other secret “security” directives.
[Of course, airlines and airports can continue to bluster that they can ban tennis racquets anyway, under the catchall “anything we don’t like” part of the rule.]