Monika Esch-Leonhardt and Others

(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

(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)

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

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

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

(see para. 47)

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

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)