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European Union: European Court of Justice Declares Illegal a Secret List of Items Prohibited Aboard Aircraft

(Mar. 23, 2009) The European Commission has a list of standard items that airline passengers may not carry in their hand-held luggage inside an aircraft. The list, based on a regulation adopted in 2002 on aviation safety, includes items such as knives, scissors, blackjacks, baseball clubs, and other items.

On March 11, 2009, the European Court of Justice (ECJ) issued a judgment in which it declared a secret list of items prohibited in hand-held luggage in aircraft to be illegal. The case arose in 2005, when an amateur tennis player was told to abandon his tennis rackets upon clearing security in Vienna, Austria, on the ground that they posed a security threat. He refused to comply, and airport authorities did not allow him to board the plane. He instituted a legal action before an Austrian court, arguing that the action against him was illegal. The court brought the matter to the ECJ for a preliminary reference. The suit brought to light the existence of a list of banned items maintained by the European Commission, which was kept confidential because of security considerations. The ECJ ruled that regulations only acquire binding force and become law once they are published in the OFFICIAL JOURNAL of the European Union. Consequently, the ECJ held that the undisclosed list, which was never published in the OFFICIAL JOURNAL, is illegal and cannot be enforced, because airline passengers have no knowledge of what items were included on the list. (Dominic Hughes, EU 'Terror' Racquets Court Ruling, BBC NEWS, Mar. 11, 2009, available at