Opinion of the Advocate General — ECLI:EU:C:2008:212
Date: 2008-04-10
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Transport;Access to documents;Acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Austria

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)