JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

18 February 2004

Case T-320/02

Monika Esch-Leonhardt and Others

v

European Central Bank

(Officials – Personal file – Letter concerning the transmission of union information by electronic mail – Refusal to withdraw from applicants’ personal files)

Full text in German II - 0000

Application: firstly, for annulment of the decision to include in the applicants’ personal files a letter concerning their use of the internal electronic mail system for transmitting union information and, secondly, for damages.

Held: The application is dismissed. The parties are ordered to bear their own costs, including those incurred in the proceedings for interim relief in Case T 320/02 R.

Summary

1. Officials – Actions – Disputes between the European Central Bank and its servants – Act having an adverse effect – Concept – Inclusion in staff members’ personal files of letters concerning the transmission by email of union information – Admissibility

(Staff Regulations, Arts 90(2) and 91(1); Regulation No 45/2001 of the European Parliament and of the Council, Arts 2(a), (b) and (c), 5 and 10; Conditions of Employment for Staff of the European Central Bank, Art. 42)

2. Officials – Staff of the European Central Bank – Actions – Action for damages directly linked to an action for annulment – Admissibility notwithstanding the absence of pre-litigation procedure in accordance with the Conditions of Employment

(Staff Regulations, Arts 90(2) and 91(1); Conditions of Employment for Staff of the European Central Bank, Arts 41 and 42)

3. Officials – Staff of the European Central Bank – Personal file – Inclusion in the personnel file of letters concerning the transmission by email of union information – Infringement of trade union freedom and of protection of personal data – None

(Regulation No 45/2001 of the European Parliament and of the Council, Arts 5(c) and 10(1) and (2)(d))

1. As regards the legal remedies open to staff of the European Central Bank, Article 42 of the Conditions of Employment for Staff of the European Central Bank confers on the Community judicature the jurisdiction, once all available internal procedures have been exhausted, to hear a dispute between the Bank and members of its staff; that jurisdiction is, generally, restricted to an examination of the legality of ‘the measure or decision’. Article 8.2.1 of the Staff Rules makes clear that actions by such staff must, in particular, be directed against the ‘final decision in a grievance procedure’.

In the absence of an explicit definition of the terms ‘decision’ and ‘measure’ used in these rules, they should be interpreted along the lines of an act adversely affecting an official as referred to in Articles 90(2) and 91(1) of the Staff Regulations of Officials.

Only measures which produce binding legal effects capable of directly and immediately affecting the applicant’s interests by significantly altering his legal situation constitute acts having an adverse effect against which actions for annulment may be brought.

When the European Central Bank includes letters concerning the transmission by email of union information in the personal files of its staff, it is processing personal data by saving them in a personal data filing system as provided for in Article 2(a), (b) and (c) of Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. In doing so, it is necessarily taking a decision on the lawfulness of that processing, firstly under Article 5 of the regulation, so that its staff must accept it as necessary for the performance of their service contracts with the Bank, and secondly under Article 10 of the regulation, so that the prohibition on revealing trade-union membership does not apply in the case of those concerned.

The inclusion of those letters in the personal files is thus in itself capable of adversely affecting the applicants’ rights to adequate protection against the unlawful processing of personal data relating to them and therefore constitutes an act that may be challenged for the purpose of Article 42 referred to earlier.

(see paras 36-37, 39-40)

See: 346/87 Bossi v Commission [1989] ECR 303, para. 23; T-391/94 Baiwir v Commission [1996] ECR-SC I-A-269 and II-787, para. 34; T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897, para. 77

2. In the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations, a claim for compensation made for the first time before the Court is admissible although the complaint sought only the annulment of the decision by which the applicant claimed to have been adversely affected, since a request for annulment may imply a request for compensation for the damage allegedly suffered. Articles 41 and 42 of the Conditions of Employment for Staff of the European Central Bank contain similar provisions to those of the Staff Regulations concerning the pre-litigation procedure. Consequently, claims for compensation for non-material damage allegedly suffered as a result of the Bank’s conduct must be held to be admissible, even though the applicants did not submit them during the pre-litigation procedure, in so far as they are closely linked to a request for annulment.

(see para. 47)

See: T-44/93 Saby v Commission [1995] ECR-SC I-A-175 and II-541, para. 28

3. The European Central Bank may be entitled to consider that the inclusion of letters concerning the transmission by email of union information in the personal files of servants who have sent such emails is ‘necessary’, within the meaning of Article 5(c) of Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, for the performance of their contracts of employment. In so far as the letters send a warning to those concerned, they concern their administrative status and may become relevant for a report on their conduct in the service, as provided for in Article 1.3.3 of the Staff Rules, with the result that it is appropriate to include them in the personal files.

A shortened version of the letters, omitting any reference to relations between those concerned and a trade union, would not be sufficient for the proper management of the personal files. The fact that the staff in question contravened the rules on the use of the European Central Bank’s internal email system by using it, as members of a trade union, for the purposes of that union, and not for gainful purposes or other purposes outside the service, is liable to influence the assessment of their conduct in the service.

That inclusion cannot in itself be classified as an infringement of trade union freedom, nor does it infringe Article 10(1) of Regulation No 45/2001 in so far as it concerns data which the persons concerned have themselves manifestly made public within the meaning of Article 10(2)(d) of the regulation.

(see paras 57-61, 71)