European Court of Justice: Tennis racquet to overthrow implementing Regulation on Aviation Security

On 25 September 2005, Gottfried Heinrich was stopped at the security control of Vienna-Schwechat Airport as his cabin baggage contained tennis racquets, allegedly prohibited items. Nevertheless, he did board the plane with the tennis racquets in his baggage. Security staff subsequently ordered him to leave the aircraft. Heinrich brought proceedings before the Unabhängiger Verwaltungssenat im Land Niederösterreich (Independent Administrative Chamber for the Land of Lower Austria). The Austrian Court has referred questions to the Court of Justice of the EC asking whether regulations or parts thereof can have legally binding force if they have not been published in the Official Journal.In her Opinion delivered 10. April 2008, Advocate General Eleanor Sharpston opines that the publication of the 2003 implementing regulation without its Annex is a defective and inadequate publication that does not satisfy the requirements of Article 254 EC. As to the consequences of that defective and inadequate publication, Advocate General Sharpston considers that this constitutes a violation of an essential procedural requirement, resulting, at the very least, in invalidity. However, the Advocate General suggests that the Court should go further than declaring the regulation invalid and declare it to be non-existent.Case C-345/06 – Gottfried Heinrich / Source: ECJ press release 27/08.

Leave a Comment