International Law

Non-existent Law

By Karl-Friedrich Lenz

I have been ranting repeatedly here against the idiocy of EU flight security regulations that are not published in the Official Journal, a practice that reaches almost American levels of contempt for basic requirements of democracy and rule of law.

Now there is a case before the Court of Justice where the Court will have an opportunity to address the validity (or lack of such validity) of these regulations. And the recently published opinion of Advocate General Sharpston sees this correctly as an “consistent and intentional practice of non-publication”.

To quote the first conclusion at paragraph 91:

“I conclude that complete failure to publish a regulation or an integral part thereof, in violation of Article 254 EC, constitutes a violation of an essential procedural requirement, resulting, at the very least, in invalidity.”

However, invalidity is not enough in this case. The opinion goes on to propose that the Court rules the Regulation in question as non-existent. To quote from paragraph 108:

“It seems to me that the irregularity that taints Regulation No 622/2003 (as amended) ? persistent and deliberate disregard of the mandatory publication requirements in Article 254(2) 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.”

In the case discussed here, a citizen took his tennis racket with him on a flight. The Austrian government asserts that that was prohibited under the secret EU Regulation. The citizen answered that he does not know about any such secret Regulation and therefore is in no way obliged to obey it.

I applaud the Advocate General for this opinion. In most cases, the Court follows the recommendation of the Advocate General. I would think it highly appropriate to do so in this case as well.

Full post as published by Lenz Blog on April 11, 2008 (boomark / email).