CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 janvier 2018

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font-weight:bold } .s4C46DB44 { margin-left:15.01pt; text-align:center; padding-left:2.84pt; font-family:Arial; font-size:12pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }       THIRD SECTION             CASE OF LÓPEZ RIBALDA AND OTHERS v. SPAIN   (Applications nos. 1874/13 and 8567/13)                 JUDGMENT       STRASBOURG   9 January 2018     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 17/10/2019     This judgment may be subject to editorial revision.   In the case of López Ribalda and Others v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Luis López Guerra,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications (nos.   1874/13 and 8567/13) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Spanish nationals, whose details are set out in the attached Annex (“the applicants”). 2.     The first applicant lodged her application on 28 December 2012 and the other applicants lodged theirs on 23 January 2013. They are all represented before the Court by Mr J.A. González Espada, a lawyer practising in Barcelona. The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero, State Attorney. 3.     The applicants argued that the covert video surveillance ordered by their employer without previously informing them had violated their right to privacy protected by Article 8 of the Convention. They further complained under Article 6 of the Convention that the proceedings before the domestic courts had been unfair in that the video recordings had been used as the main evidence to justify the fairness of their dismissals. The third, fourth and fifth applicants also claimed that the domestic courts had determined the fairness of their dismissals on the basis of settlement agreements they had signed under duress, which had violated their right to a fair trial under Article 6 of the Convention. Lastly, the first applicant claimed that the judgments had lacked proper motivation as to her specific circumstances. 4.     On 17 February 2015 the applications were communicated to the Government. 5.     The European Trade Union Confederation (ETUC) was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     At the time of the events the applicants were all working as cashiers for M.S.A., a Spanish family-owned supermarket chain. 7.     At the beginning of February 2009 the applicants’ employer noticed some irregularities between the supermarket stock levels and what was actually sold on a daily basis. In particular, the shop supervisor identified losses in excess of EUR 7,780 in February, EUR 17,971 in March, EUR   13,936 in April, EUR 18,009 in May and EUR   24,614 in June 2009. 8.     In order to investigate and put an end to the economic losses, on 15   June 2009 the employer installed surveillance cameras consisting of both visible and hidden cameras. The purpose of the visible cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible employee thefts and they were zoomed in on the checkout counters, which covered the area behind the cash desk. The company gave its workers prior notice of the installation of the visible cameras. Neither they nor the company’s staff committee were informed of the hidden cameras. 9.     On 25 and 29 June 2009 all the workers suspected of theft were called to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of the union representative and the company’s legal representative. 10.     Hereafter and for the sake of clarity, the applicants will be referred to as the first, second, third, fourth and fifth applicants (see the attached Annex). A.     Group A (the first and second applicants) 11.     On 25 and 29 June 2009 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to their letters of dismissal, the security cameras had caught them scanning items from the grocery baskets of customers and co-workers and afterwards cancelling the purchases. Security cameras had also caught them allowing customers and co-workers to leave the store with merchandise that had not been paid for. 12.     On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no.1 (hereinafter “the Employment Tribunal”). The same day the second applicant brought similar proceedings before the Employment Tribunal in a joint application with the third, fourth and fifth applicants (see   paragraph   20 below). 13.     In the framework of the proceedings both applicants objected to the use of the covert video surveillance, arguing that it had breached their right to protection of their privacy. 14.     On 20 January 2010 the Employment Tribunal issued two judgments ruling against the applicants, declaring both dismissals fair. The main evidence supporting the fairness of their dismissals was the recordings resulting from the covert surveillance, as well as the witness statements of co-workers dismissed for their involvement in the thefts, the shop manager, the union representative and the company’s legal representative. 15.     The Employment Tribunal found in both judgments – as regards these two applicants in particular – that the use of covert video surveillance in the workplace without prior notice had been in accordance with Article 20 of the Labour Regulations ( Estatuto de los Trabajadores ), which allowed an employer to use monitoring and surveillance measures which he or she deemed appropriate to verify that an employee was fulfilling his or her employment duties, as long as the employer respected “human dignity”. This had been confirmed by the Constitutional Court in several judgments (see, among other authorities, judgment no. 186/2000 of 10   July   2000). According to the Constitutional Court’s case-law, an employer’s right to adopt organisational arrangements and act as a disciplinary authority had to be weighed against an employee’s fundamental right to privacy recognised under Article 18 of the Constitution. In cases where there were substantiated suspicions of theft, special circumstances justified interference with an employee’s right to privacy, which was considered to be appropriate to the legitimate aim pursued, necessary and proportionate. Following this case-law, the Employment Tribunal, having regard to the evidence before it, found that the employer had had sufficient grounds to conclude that the applicants’ conduct amounted to a “breach of contractual good faith and abuse of trust” and thus declared both dismissals fair in conformity with Article 54.2.d of the Labour Regulations. 16.     The applicants appealed before the High Court of Justice of Catalonia on 16 and 22 March 2010 respectively. On 28 January and 24   February 2011 the court upheld both first-instance judgments, referring to the Constitutional Court’s case-law and endorsing the Employment Tribunal’s finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desks. While acknowledging that it was possible that the employer could face an administrative sanction for not informing its employees and the staff committee in advance of the installation of the cameras, that fact alone had no relevance from a constitutional point of view, since from that perspective the covert video surveillance had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate. Consequently, their dismissals had been justified on the same grounds as already stated by the Employment Tribunal. 17.     The applicants brought cassation appeals, which were declared inadmissible on 5   October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, due to the “non-existence of a violation of a fundamental right”. B.     Group B (the third, fourth and fifth applicants) 18.     On 25 and 29 June 2006 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to the employer, the security cameras had caught the third applicant scanning items from the grocery baskets of customers and co-workers and afterwards voiding the receipts. Security cameras had also caught her allowing customers or co-workers to leave the store with merchandise that had not been paid for. As regards the fourth and fifth applicants, security cameras had caught them stealing goods with the help of their co-workers, such as the second applicant. 19.     On the days that they were dismissed all three applicants signed a document called a “settlement agreement” (acuerdo transaccional) , by which they committed themselves not to bring proceedings against their employer for unfair dismissal, while the employer committed itself not to bring criminal charges against them for theft. In the meetings at least one union representative and the company’s legal representative were also present. 20.     Despite the settlement agreements, on 22 July 2009 the applicants, together with the second applicant (see paragraph 12 above), brought proceedings for unfair dismissal before the Employment Tribunal. According to the applicants, the settlement agreements had to be declared void. They claimed that the consent they had given was not valid, since they had been under duress at the time they had signed the settlement agreements (a company representative had allegedly threatened to bring criminal proceedings against them if they did not sign the agreements). They also argued that the evidence derived from the covert video surveillance had been obtained illegally. 21.     On 20 January 2010 the Employment Tribunal ruled against the applicants and declared the dismissals fair. It carefully analysed the settlement agreements signed by the applicants. In particular, it addressed their allegation of invalid consent, finding that there was no evidence proving the existence of any kind of duress or intention to commit a crime ( dolo ) at the time the applicants had signed the settlement agreements. The court concluded that the applicants had signed the settlement agreements freely and voluntarily with the clear purpose of avoiding criminal proceedings for the alleged thefts they had been accused of (and to which they had already confessed). Further evidence as to the lack of any threat or coercion was the fact that other employees in the same situation as the applicants (such as the first and second applicants) had refused to sign the settlement agreements. Accordingly, the settlement agreements were declared valid under Article 1.809 of the Civil Code and, consequently, the Employment Tribunal ruled against the third, fourth and fifth applicants. As the signing of the settlement agreements rendered their dismissals fair, the use and analysis of the impugned videos as evidence in the proceedings was deemed unnecessary. 22.     The applicants appealed before the High Court of Justice of Catalonia on 16 March 2010. On 24 February 2011 it upheld the first-instance judgment and endorsed the Employment Tribunal’s finding that the settlement agreement signed by the applicants was valid. The court also analysed, for the sake of clarity, the legality of the covert video surveillance. Referring to the Constitutional Court’s case-law, it confirmed that the defendant party had been authorised to carry out the covert video surveillance on the applicants. 23.     The applicants brought a joint cassation appeal, which was declared inadmissible on 7 February 2012. Ultimately, they lodged a joint amparo appeal with the Constitutional Court, alleging a violation of Articles 18 and 24 of the Constitution. It was declared inadmissible on 18 July 2012 due to the “non-existence of a violation of a fundamental right”. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Domestic law and practice 1.     Constitution 24.     The relevant provisions of the Spanish Constitution read as follows: Article 18 § 1 “The right to respect for honour, for private and family life and for one’s own image shall be guaranteed.” Article 18 § 4 “The law shall restrict the use of data processing in order to guarantee respect for the honour and private and family life of citizens and the full exercise of their rights.” Article 24 “1.   Everyone has the right to obtain the effective protection of judges and the courts in the exercise of their legitimate rights and interests, and in no case may their defence rights be curtailed. 2.   Likewise, everyone has the right to ... a public trial without undue delay and with full guarantees ...” Article 53 § 2 “Every citizen shall be entitled to seek protection of the freedoms and rights recognised in Article 14 and in the first section of Chapter II by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and, in appropriate cases, by an appeal ( recurso de amparo ) to the Constitutional Court ...” 2.     Civil Code 25.     The relevant provisions of the Civil Code read as follows: Article 1.809 “A settlement is a contract whereby the parties, by each giving, receiving or retaining something, prevent [proceedings] or end [those] which had already begun.” 3.     Judiciary Act (Law no. 6/1985 of 1 July 1985) 26.     The relevant provision reads as follows: Section 11 “1. The rules of good faith must be complied with in all proceedings. Evidence obtained, directly or indirectly in violation of fundamental rights or freedoms will be excluded ...” 4.     Labour Regulations (approved by Royal Legislative Decree no.   1/1995 of 24 March 1995) – Estatuto de los Trabajadores 27.     The relevant provision (in force at the relevant time) read as follows: Article 20.3 “An employer may use monitoring and surveillance measures which he/she deems appropriate to verify that an employee is fulfilling his/her employment duties, in so far the employer respects human dignity ...” 5.     Spanish Labour Procedure Act (Law no. 36/2011) 28.     The relevant provision reads as follows: Section 90 “2. Evidence obtained, directly or indirectly in violation of fundamental rights or freedoms will be excluded ...” 6.     Personal Data Protection Act (Law no. 15/1999) 29.     The relevant provisions read as follows: Section 5 “1. Data subjects whose personal data are requested must be previously and explicitly, precisely and unambiguously informed of the following: a) the existence of a personal data file or that the data will be processed, the purpose thereof and the recipients of the information; b) the obligatory or optional nature of their response to the questions asked; c) the consequences of providing or refusing to provide the data; d) the existence of rights of access, rectification, erasure and objection;   e) the identity and address of the controller or, as appropriate, his representative. ... 5. The provisions of the preceding paragraph shall not apply in cases where it is expressly provided for by law, where the processing data has historical, statistical or scientific purposes, or where it is impossible to inform the data subject, or where this would involve a disproportionate effort in the opinion of the Data Protection Agency or the corresponding regional body, in view of the number of data subjects, the age of the data and the possible compensation measures. Furthermore, the provisions of the preceding paragraph shall also not apply where the data are obtained from sources accessible to the public and are intended for advertising activity or market research, in which case each communication sent to the data subject shall inform him or her of the origin of the data, the identity of the person/entity responsible for processing the data and the rights of the data subject.” Section 6 “1. [The] processing of personal data shall require the unambiguous consent of the data subject, unless laid down otherwise by law. 2. Consent shall not be required where the personal data are collected for the exercise of the functions proper to public administrations within the scope of their duties; where they relate to the parties to a contract or preliminary contract for a business, employment or administrative relationship, and are necessary for its maintenance or fulfilment; where the purpose of processing the data is to protect a vital interest of the data subject under the terms of section7(6) of this Act or where the data are contained in sources accessible to the public and their processing is necessary to satisfy the legitimate interest pursued by the controller or that of the third party to whom the data are communicated, unless the fundamental rights and freedoms of the data subject are jeopardised. 3. The consent to which the section refers may be revoked when there are justified grounds for doing so and the revocation does not have retroactive effect. 4. In cases where the consent of the data subject is not required for processing personal data, and unless provided otherwise by law, the data subject may object to such processing when there are compelling and legitimate grounds relating to a particular personal situation. In such an event, the controller shall exclude the data relating to the data subject from the processing.” 7.     Instruction no. 1/2006 of 8 November issued by the Spanish Data Protection Agency 30.     The relevant provision reads as follows: Article 3 “Everyone who uses video surveillance systems must fulfil all the obligations prescribed in section 5 of the Personal Data Protection Act. For that purpose they must: a. Place a distinctive sign indicating the areas that are under surveillance...   b. Have documents available containing the information provided in section 5 of the Personal Data Protection Act [...].” 8.     Case-law of the Constitutional Court 31.     On 10 July 2000 the Constitutional Court rendered a leading judgment on the lawfulness of covert video surveillance in the workplace (judgment no. 186/2000) as regards the protection rendered by Article 18.1 of the Spanish Constitution. In it the court analysed the use of a covert surveillance camera system installed on the ceiling of a clothing and shoe section of a company, only focusing on three cash registers and the counter. In that case the Constitutional Court held that the measure at stake had to pass a three-fold test to be considered acceptable: there had to be a legitimate aim (“a suitability test”), necessary (“a necessity test”) and proportionate (“a strict proportionality test”) – that is to say, to determine whether a fair balance had been struck between the interference with a fundamental right and the importance of the legitimate aim pursued. As regards the covert video surveillance, the Constitutional Court found: “In the present case, the covert video surveillance ... was a justified measure (since there was a reasonable suspicion that the person investigated was committing some wrongdoing at work); suitable for the purpose aimed for by the company (to verify if that the worker was in fact committing the suspected wrongdoing, in which case he would be subjected to an appropriate disciplinary sanction); necessary (the videotapes would be used as evidence of the wrongdoing) and proportionate (since the cameras were only zoomed in on the checkout counters and solely for a limited period of time ... so it follows that there has been no interference with the right to [respect for] privacy as enshrined in Article 18.1 of the Spanish Constitution. ” 32.     Later, in judgment no. 29/2013 of 11 February 2013, which concerned events after the Personal Data Protection Act had entered into force, the Constitutional Court held that the permanent installation of video surveillance as security and surveillance measures required that the workers’ representatives and employees be given prior notification and that a lack thereof would be in violation of Article 18.4 of the Spanish Constitution. In that case, an employee of the Seville University was suspended without pay for being late and absent from work, after evidence was obtained from video cameras installed after administrative approval. The Constitutional Court stated: “7. ... In conclusion, it cannot be forgotten that the [Constitutional] Court has established, in an invariable and continuing manner that business power is limited by fundamental rights (among many other [authorities], STC no. 98/2000, of 10 April, legal argument no. 7, or STC no. 308/2000, of 18 December, legal argument no. 4). Consequently, in the same way the “public interest” behind the punishment linked to an administrative offence is not enough to allow the State to deprive the citizen concerned of his/her rights derived from [sections 5(1) and (2) of the Personal Data Protection Act] (STC 292/2000, of 30 November, legal basis no. 18), the “private interest” of an employer cannot justify that the worker’s personal data be treated against the worker without previously informing him/her of the monitoring measures that have been implemented. There is no reason in the employment sphere ... which allows the restriction of the right to be informed, a fundamental right that is protected by Article 18.4 of the Constitution. Accordingly, it is not enough that the data processing itself has a legitimate aim ... or is proportionate to the aim pursued; business control must also secure the right to be previously informed [of the existence of a means of data collection and processing]. In the instant case, the video surveillance cameras installed on the campus reproduced the appellant’s image and allowed [the employer] to control the appellant’s compliance with the working time [regulations]. ... The owner of the cameras was Seville University and it was this entity that used the videotapes, thus becoming the one responsible for processing the appellant’s data without previously informing him of the [existence] of that work monitoring system .... This infringed ... Article 18.4 of the Spanish Constitution. The facts that signs were put up indicating the existence of a video surveillance system on the campus, or that the Data Protection Agency had been informed of the installation of the video surveillance system do not outweigh this conclusion; it was necessary, moreover, previously and expressly, precisely, clearly and unambiguously to inform the workers of the aim of the work monitoring system .... The information should specify the characteristics and scope of the data processing, ... i.e. , in which cases the images could be examined, during how much time and for what purpose, specifically stating in a particular manner that the images could be used to impose on the workers a disciplinary sanction for non-compliance with the contract of employment.” 33.     In a relatively recent judgment of 3 March 2016 (no. 39/2016 of 3   March 2016), the Constitutional Court developed its case-law concerning the use of covert surveillance cameras. In this case the company had detected some irregularities in the cash register allegedly committed by one of its employees. It temporarily installed hidden cameras zoomed in on the area where the cash register was located. The employer had placed a sign indicating in a general manner the presence of video surveillance, as well as a document containing the text of section 5 of the Personal Data Protection Act, as required by Article 3 of the Instruction 1/2006 of 8 November issued by the Spanish Data Protection Agency (hereinafter “Instruction no. 1/2006”). According to the Constitutional Court, one of the reasons why Article 18.4 of the Constitution had not been infringed was the fact that the employer had installed a sign in the shop window indicating the installation of video surveillance, in accordance with section 5 of the Personal Data Protection Act as well as Instruction   no.   1/2006. According to the Constitutional Court, the employee was aware of the installation of the monitoring system and of its purpose. As a result of the video surveillance, the employee was caught stealing money from the cash register and was therefore dismissed. The Constitutional Court concluded that: “... the use of security cameras was justified (since there was a reasonable suspicion that some of the employees were stealing cash from the cash register), appropriate (to verify if the irregularities were committed by some of the employees, and if so, to adopt the respective disciplinary measures) necessary (the video surveillance would be used as evidence of those irregularities) and proportionate (the image recording was limited to the area where the cash register was located).” [1] B.     International law 1.     Council of Europe 34.     On 1 October 1985 the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No.108), which was ratified by Spain on 31 January 1984, entered into force. Under Article   1, the purpose was “to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (‘data protection’)”. It provided, inter alia , as follows: “ Article 5 – Quality of data Personal data undergoing automatic processing shall be: a) obtained and processed fairly and lawfully; b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c) adequate, relevant and not excessive in relation to the purposes for which they are stored; d) accurate and, where necessary, kept up to date; e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. Article 7 – Data security Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination. Article 8 – Additional safeguards for the data subject Any person shall be enabled: a) to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b) to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c) to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention; d) to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.” 35.     In 2007, the Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an Opinion on “video surveillance by private operators in the public and private spheres and by public authorities in the private sphere and human rights protection” at its 71st plenary session (document CDL-AD(2007)027 of 8 June 2007). The relevant parts read: “18. For the purposes of this study, the private sphere will also include workplaces and the use of video surveillance in workplace premises, which raises legal issues concerning the employees’ privacy rights. ... 52. As regards workplaces, the introduction of video monitoring requires respecting the privacy rights of the employees. 53. Here, video surveillance would, in general, be allowed to prevent or detect fraud or theft by employees in case of a well-founded suspicion. However, except in very specific circumstances, videotaping would not be allowed at places such as toilets, showers, restrooms, changing rooms, or smoking areas and employee lounges where a person may trust to have full privacy. 54. Moreover, secret surveillance should only be allowed, and then only on a temporary basis, if proven necessary because of lack of adequate alternatives. ... 57. As regards shops, camera surveillance may be justified to protect the property, if such a measure has proven to be necessary and proportional. It may also be justified at certain locations in the shop to prevent and prosecute robberies under threat but, again, only if proven necessary, and no longer than necessary. 58. National legislation will have to clearly define the legal basis of the surveillance and the necessity of the infringement in view of the interests protected. ... 100. Furthermore the Commission recommends, in view of the specificities of video surveillance, that the following measures should also be taken on a systematic basis: - People should be notified of their being surveyed, unless the surveillance system is obvious. This means that the situation has to be such that the person observed may be assumed to be aware of the surveillance, or has unambiguously given his /her consent.” 36.     On 1 April 2015 the Committee of Ministers adopted Recommendation CM/Rec(2015)5 on the processing of personal data in the context of employment (adopted at the 1224 th meeting of the Ministers’ Deputies). The relevant extracts provide: “10.     Transparency of processing 10.1. Information concerning personal data held by employers should be made available either to the employee concerned directly or through the intermediary of his or her representatives, or brought to his or her notice through other appropriate means. 10.2. Employers should provide employees with the following information: – the categories of personal data to be processed and a description of the purposes of the processing; – the recipients, or categories of recipients of the personal data; – the means employees have of exercising the rights set out in principle 11 of the present recommendation, without prejudice to more favourable ones provided by domestic law or in their legal system; – any other information necessary to ensure fair and lawful processing. 10.3. A particularly clear and complete description must be provided of the categories of personal data that can be collected by ICTs [information and communication technologies], including video surveillance and their possible use. This principle also applies to the particular forms of processing provided for in Part II of the appendix to the present recommendation. 10.4. The information should be provided in an accessible format and kept up to date. In any event, such information should be provided before an employee carries out the activity or action concerned, and made readily available through the information systems normally used by the employee.” 15.     Information systems and technologies for the monitoring of employees, including video surveillance 15.1. The introduction and use of information systems and technologies for the direct and principal purpose of monitoring employees’ activity and behaviour should not be permitted. Where their introduction and use for other legitimate purposes, such as to protect production, health and safety or to ensure the efficient running of an organisation has for indirect consequence the possibility of monitoring employees’ activity, it should be subject to the additional safeguards set out in principle 21, in particular the consultation of employees’ representatives. 15.2. Information systems and technologies that indirectly monitor employees’ activities and behaviour should be specifically designed and located so as not to undermine their fundamental rights. The use of video surveillance for monitoring locations that are part of the most personal area of life of employees is not permitted in any situation”. 21.     Additional safeguards For all particular forms of processing, set out in Part II of the present recommendation, employers should ensure the respect of the following safeguards in particular: a. inform employees before the introduction of information systems and technologies enabling the monitoring of their activities. The information provided should be kept up to date and should take into account principle 10 of the present recommendation. The information should include the purpose of the operation, the preservation or back-up period, as well as the existence or not of the rights of access and rectification and how those rights may be exercised; b. take appropriate internal measures relating to the processing of that data and notify employees in advance; c. consult employees’ representatives in accordance with domestic law or practice, before any monitoring system can be introduced or in circumstances where such monitoring may change. Where the consultation procedure reveals a possibility of infringement of employees’ right to respect for privacy and human dignity, the agreement of employees’ representatives should be obtained; d. consult, in accordance with domestic law, the national supervisory authority on the processing of personal data.” 2.     European Union 37.     Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides: Article 7 “Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1). ...” Article 10 Information in cases of collection of data from the data subject Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it: (a) the identity of the controller and of his representative, if any; (b) the purposes of the processing for which the data are intended; (c) any further information such as - the recipients or categories of recipients of the data, - whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply, - the existence of the right of access to and the right to rectify the data concerning him in so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject. Article 11 Information where the data have not been obtained from the data subject 1. Where the data have not been obtained from the data subject, Member States shall provide that the controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject with at least the following information, except where he already has it: (a) the identity of the controller and of his representative, if any; (b) the purposes of the processing; (c) any further information such as - the categories of data concerned, - the recipients or categories of recipients, - the existence of the right of access to and the right to rectify the data concerning him in so far as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject. 2. Paragraph 1 shall not apply where, in particular for processing for statistical purposes or for the purposes of historical or scientific research, the provision of such information proves impossible or would involve a disproportionate effort or if recording or disclosure is expressly laid down by law. In these cases Member States shall provide appropriate safeguards.” 38.     A Data Protection Working Party (“the Working Party”) was established under Article 29 of the Directive in order to examine the issue of surveillance of electronic communications in the workplace and to evaluate the implications of data protection for employees and employers. It is an independent EU advisory body. In September 2001 the Working Party issued Opinion 8/2001 on the processing of personal data in an employment context, which summarises the fundamental principles of data protection: finality, transparency, legitimacy, proportionality, accuracy, security and staff awareness.   With regard to the monitoring of employees, it suggested: “It should be also clear that Any monitoring, especially if it is conducted on the basis of Article 7(f) of Directive 95/46/EC and, in any case, to satisfy Article 6 must be a proportionate response by an employer to the risks it faces taking into account the legitimate privacy and other interests of workers. Any personal data held or used in the course of monitoring must be adequate, relevant and not excessive for the purpose for which the monitoring is justified. Any monitoring must be carried out in the least intrusive way possible. It must be targeted on the area of risk, taking into account that data protection rules and, where applicable, the principle of secrecy of correspondence. Monitoring, including surveillance by camera, must comply with the transparency requirements of Article 10. Workers must be informed of the existence of the surveillance, the purposes for which personal data are to be processed and other information necessary to guarantee fair processing. The Directive does not treat less strictly monitoring of a worker’s use of an Internet and email system if the monitoring takes place by means of a camera located in the office.” 39.     In February 2004 the Working Party issued Opinion 4/2004 on the processing of personal data, which stated: “In the light of its peculiar features and the existence of specific provisions also related to the investigational activities carried out by police and judicial authorities as well as for State security purposes - which may include video surveillance that is “hidden”, i.e. carried out without providing information on the premises -, this category of processing operations will not be addressed in detail in this document. However, the Working Party would like to stress that, similar to several other processing operations of personal data that likewise fall outside the scope of the Directive, video surveillance performed on grounds of actual public security requirements, or else for the detection, prevention and control of criminal offences should respect the requirements laid down by Article 8 of the Convention of Human Rights and Fundamental Freedoms and both be provided for by specific provisions that are known to the public and be related and proportionate to the prevention of concrete risks and specific offences – e.g ., in premises that are exposed to such risks, or in connection with public events that are likely reasonably to result in such offences. The effects produced by video surveillance systems should be taken into account – e.g. the fact that unlawful activities may move to other areas or sectors -, and the data controller should always be specified clearly in order for data subjects to exercise their rights.” THE LAW I.     JOINDER OF THE APPLICATIONS 40.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II.     Alleged violation of Article 8 of the Convention 41.     The applicants complained that the covert video surveillance ordered by their employer as well as the recording and use of the data obtained therefrom in the proceedings before the domestic courts had breached their right to privacy under Article 8, which provides: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 42.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicants 43.     All the applicants considered that the covert video surveillance of their place of work had seriously interfered with their right to privacy. They contended that the purpose of Article 8 of the Convention was