Well, it’s something most people knew already, but the Advocate General has now immortalised the absurdity of the EU’s tendency to secrecy in a highly critical legal opinion.
On 25 September 2005, Gottfried Heinrich was stopped before boarding a plane by Vienna airport security who didn’t like the tennis rackets he was carrying. He boarded the plane, but was then evicted. His rackets, they said, were on a list compiled under Regulation 2320/2002 as potentially being weapons.
Feeling this was a strange idea, Mr Heinrich asked what else was on the list of potential weapons. He was told it was a secret. So, rightly wondering how the hell passengers could avoid carrying things the EU considered weapons, he brought a case requesting the information to his local court.
The Regulation does indeed say “the measures relating to … detailed procedures containing sensitive information … shall be secret and not be published”. The list of banned items contained in an annex has therefore not been published.
But the Commission had already published a partial list in a press release, apparently breaking its own law. Faced with this contradiction, the court shunted the case upstairs to the European Court of Justice, which has now issued an opinion likely to reflect the judgment when it arrives.
Advocate General Eleanor Sharpston opines that the publication of the 2003 implementing regulation without its Annex is a defective and inadequate publication
She highlights the “fundamental absurdity” in the Commission’s position: If the Commission was obliged under Regulation 2320/2002 to keep the list secret, then publication of the press release was a flagrant violation of that Regulation. If the Commission considered that the list fell outside the secrecy obligation, it ought of course to have been published in the Official Journal. Furthermore, if the basic “guidelines” indicating the kinds of articles that are to be prohibited can be published there is little logic behind not publishing what is presumably, a fleshed-out version of those guidelines. Finally, she considers it to be self-contradictory on the part of the Commission to state, in recitals to subsequent regulations that there is a need to inform the public of the list of prohibited articles and then fail to place such a list in the public domain.
So the Commission will have to publish its list. Dare we say that this is a case of one dangerous racket trying to prevent another dangerous racket?
What’s more, the AG goes even further in her criticism, and suggests the regulation be got rid of altogether as being totally against the Community legal order.
[T]he Court should go further than declaring the regulation invalid and declare it to be non-existent. She argues that the irregularity that taints the Regulation - persistent and deliberate disregard of the mandatory publication requirement of Article 254 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. Such a step would make it very clear that non-publication of regulations or parts thereof - all the more so when deliberate - is unacceptable in the legal order of the European Union.