Secret Laws

Oct 08 2006 Published by under EU Law

The Official Journal of the European Union L271, published on September 30th, 2006, has a rather pointless entry at pages 31 to 32.

That is a “Commission Regulation” Number 1488/2006 about aviation security. This “Regulation” is a complete joke.

The main point of the “Regulation” is to amend the Annex of “Commission Regulation” 622/2003.

However, in clear violation of Article 254 of the EC Treaty, the Annex of neither of these “Regulations” is published in the Official Journal, but is kept secret.

Article 254, Paragraph 2 of the EC Treaty reads:

2. Regulations of the Council and of the Commission, as well as directives of those institutions which are addressed to all Member States, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following that of their publication.

There is no exception for any kind of legislation the Commission would like to keep secret for whatever motive.

That of course means that the Annex does not enter into any force, since it has not been published.

That in turn means that the whole “Regulation” is pointless.

Regulation 2320/2002 of the European Parliament and the Council says something about confidentiality in Article 8. However, a regulation can’t derogate from the Treaty. Therefore it is not necessary to check if that Article would allow secret laws of this kind.

Even if you happen to be a big fan of secret laws you would need to agree that it is absolutely pointless to “publish” a “Commission Regulation” in the Official Journal while leaving out the Annex actually amended.

As a general rule, security by obscurity is not an effective concept. That is obvious to anyone with an interest in cryptography.

However, even if you think that security by obscurity helps with the problem of securing airports, you can’t build obscurity in a Regulation. You need to give the Commission the power to decide about these specifications as a Decision, which needs to be notified only to whom it is addressed under Paragraph 3 of Article 254 quoted above.

This “secret law” concept must stop immediately. It is not compatible with basic democratic values, and in clear and unabashed violation of the Treaty rules on legislation.

In a democracy, citizens have a right to know the law. Especially one that concerns their safety against the minor threat of terrorism and the extremely serious threat of slipping down the slope to a police state.

One response so far

  • [...] The rules on A and B items seem to be unchanged by this revision. Article 3 Paragraph 8 still gives any Member State the right to call for withdrawal of an A item without the need to state any reason for doing so, and requires a majority to hold the “A item” on the agenda in that case, in contrast to “unwritten rules” that give the Presidency the right to hold any A item on the agenda against the wish of a majority (like in the “negative consensus model” of the WTO DSU procedure), which allows decisions against the majority. I think it is a good thing to open the Council to the public. Secret lawmaking is incompatible with democracy, as are secret laws. [...]