European Court of Human Rights

JOINT CONCURRING OPINION OF JUDGES RYSSDAL, MATSCHER AND BERNHARDT

In conformity with the majority of our colleagues we consider Article 6 (art. 6) of the Convention not to be applicable in the present case. But our reasoning is different.

In our view, the applicants had a right to be registered as accountants if they satisfied the conditions laid down in the legislation (that is, in the 1972 Act). They claimed that they met these conditions, but this was denied by the Netherlands authorities. Therefore, there existed a dispute ("contestation"). However, this dispute did not concern a civil right within the meaning of Article 6 (art. 6). It concerned an examination and an evaluation of the applicants’ professional competence by a public authority, a matter which cannot be brought under the notion of civil rights.

DISSENTING OPINION OF JUDGE CREMONA

Whilst agreeing with the majority of my brother judges on Article 1 of Protocol No. 1 (P1-1), I find myself unable to agree with them on Article 6 (art. 6) of the Convention.

This is a case with certain peculiar features of its own.

Whatever the difficulties raised by it (and they are many), it does not concern the continued exercise of a profession affected by the result of disciplinary proceedings, which (as was indeed, in my view, the case in Le Compte, Van Leuven and De Meyere; see the joint separate opinion of myself and Judge Bindschedler-Robert, annexed to the Court’s judgment of 23 June 1981, Series A no. 43, pp. 29-30) do in certain circumstances essentially fall to be considered as dealing with "the determination ... of a criminal charge" for the purposes of Article 6 para. 1 (art. 6-1) of the Convention.

What the applicants are in essence complaining of in the present case is that they have been impeded in the continued effective exercise of their accountancy profession by being denied the continued use of the title of accountant, a title which they had in fact used for several years and was vital to the effective exercise of their profession, but which was now regulated by new legislation (the Certified Accountants Act of 1972). Indeed they claimed to have fulfilled all the statutory conditions for the use of that title as laid down in section 65 of such new legislation, including that of adequate professional ability.

That provision was in fact part of a transitional mechanism in the Act itself, clearly designed to afford legal protection to those, like the applicants, who had previously practised, quite lawfully, the accountancy profession under the title of accountant, if they fulfilled certain statutory conditions.

The competence of deciding on the fulfilment of such conditions was entrusted by the new legislation itself first to a Board of Admission and thereafter to a proper judicial tribunal termed Board of Appeal. That the latter was a proper judicial tribunal is confirmed by a specific judgment of the Dutch Council of State (see paragraph 14 of the present judgment).

It is of course appreciated that normally the evaluation of knowledge by means of, say, a school or university examination, referred to in paragraph 36 of the judgment, (as distinct, for instance, from the question whether the rules governing such examination have or have not been observed) is subtracted from the judicial sphere. But in the present case we are faced with the fact that the new Dutch legislation actually saw fit to create a proper judicial tribunal to control the decisions of the Board of Admission, including what may be termed the competence-evaluation element (see paragraph 34 of the judgment). In any event the applicants’ claim in the present case went well beyond the mere question of passing a qualifying examination.

In my view and on the basis of the Court’s relevant case-law, there was in this case a "contestation" (dispute) over a civil right within the meaning of Article 6 (art. 6) of the Convention. What was in fact at issue was the continued effective exercise by the applicants of their accountancy profession under the title of accountant, which they had in fact used for several years and was now denied to them but to which they claimed to be also entitled by reason of their meeting all the statutory requirements of the applicable transitional provisions of the new legislation regulating registration under that title. The Board of Admission ruled that they did not so meet all such statutory requirements, but on their taking the case up to the Board of Appeal (a proper judicial tribunal vested by the new legislation itself with the competence of deciding also on the fulfilment of those requirements, including that of adequate professional ability) there arose a "contestation" which to my mind, in the aforesaid circumstances, concerned a civil right within the meaning of Article 6 (art. 6).

In this connection, it is to be borne in mind that the continued use by the applicants of the professional title of accountant was intimately bound up with, and indeed essentially vital to, the continued effective exercise of their accountancy profession (based on private-law relationships with their clients) and had also substantial patrimonial connotations (see paragraph 42 of the judgment) that were indeed important for the applicants’ very livelihood. The result of the proceedings complained of was directly decisive for the right at issue.

Article 6 (art. 6) of the Convention was thus applicable and in my view was also violated on the following grounds: (1) the so-called "protocols" of the Board of Admission were communicated to the Board of Appeal but not to the applicants themselves, who thus, when conducting their cases before the latter Board, could not know the reasons for the rejection of their applications by the former Board, a fact which impaired the fairness requirement in Article 6 para. 1 (art. 6-1), and (2) the decision given by the Board of Appeal did not meet the publicity requirement in that same provision, not even in the extended sense accepted in the Pretto and Others judgment of 8 December 1983 (Series A no. 71).

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, MACDONALD, RUSSO, GERSING AND SPIELMANN

(Translation)

Contrary to the majority we voted in favour of the applicability of Article 6 (art. 6). Our reasoning is as follows.

1. Existence of a "contestation" (dispute) concerning a right

The following principles, amongst others, emerge from the Court’s case-law, and reference is made to them in the judgment:

(a) conformity with the spirit of the Convention requires that the word "contestation" (dispute) should not be "construed too technically" and should be "given a substantive rather than a formal meaning";

(b) the "contestation" (dispute) must be genuine and of a serious nature;

(c) it may relate not only to "the actual existence of a ... right" but also to its scope or the manner in which it may be exercised;

(d) it may concern both "questions of fact" and "questions of law".

But the conclusion drawn by the majority from these principles in the instant case does not appear to us satisfactory in so far as it considered that there was not in the circumstances any "contestation" (dispute), the determination of which would fall within the normal exercise of the judicial function. The Court notes that the relevant legislation laid down transitional provisions designed to preserve the acquired rights of a particular category of accountants for a limited period. Under the Act, persons able to prove that they possess sufficient skill and experience are entitled to continue to practise their profession on its new legal footing. The "contestation" (dispute) therefore indeed related to the actual existence of the right which the applicants were claiming.

The decision of the Board of Appeal, refusing the applicants the right to use the title, had the direct consequence of depriving them of their qualification and therefore of their clients, who drew the conclusion that refusal of the title implied inadequate ability.

It was not merely a question of deliberating in the light of a proficiency examination relating to the conferment of a diploma but of deciding whether or not a professional practice carried on over many years by the applicants to the satisfaction of their clients who had entered into contracts with them should continue as before. The judicial function does normally extend to determining technical questions. It is impossible within a deliberation to dissociate what is "justiciable" from what is factual and technical.

The "contestation" (dispute) related to this loss of professional practice whereas, above all, one association of accountants had a privileged position in relation to the other in a majority of the cases being examined.

Such a loss had repercussions on the existence of a right and on the carrying on of an occupation.

This was indeed, then, a "contestation" (dispute) as customarily interpreted by the Court, most recently in its Benthem judgment.

2. Civil character of the right at issue

We consider that the right in question is of a civil character. The practice of the profession consists in concluding private-law contracts; as to the use of the title, it is one of the means of practising the profession and, in particular, of keeping one’s clients and securing new ones.

In our view, the administrative nature of the decisions of the Board of Appeal has no bearing on the real nature of the right.

The Government maintained that the decision of the Board of Appeal determined public rights - the right to registration and to the title of accountant.

The Court has held that "the concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to the domestic law of the respondent State" (see the König judgment of 28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).

Furthermore, Article 6 (art. 6) does not cover only "private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law", and not "in its sovereign capacity" (see the same judgment, loc. cit., p. 30, para. 90). Accordingly, "the character of the legislation which governs how the matter is to be determined ... and that of the authority which is invested with jurisdiction in the matter ... are ... of little consequence": the latter may be an "ordinary court", [an] "administrative body, etc.".

The question of success in an examination giving access to a profession does not, as such, involve a civil right.

In the instant case, however, the applicants’ position presented a number of special features which went beyond the dimension of an examination. Inclusion in the list of certified accountants was one of the prerequisites of being able to continue carrying on their occupation in equivalent conditions. Refusal of enrolment in fact entailed loss of occupation and, since a profit-making profession was involved, could have very adverse economic consequences.

Accordingly, what was at stake was a "civil" right within the meaning of Article 6 para. 1 (art. 6-1), which therefore was applicable to the proceedings before the Board of Appeal.

Compliance with Article 6 (art. 6)

Had the Court had to consider this point, we should have held that there had been a breach of Article 6 (art. 6), on account notably of non-compliance with the principle of equality of arms (in particular, the fact that the note concerning the proceedings was not communicated) and with the principle that the procedure be conducted in public.

JOINT DISSENTING OPINION OF JUDGES SIR VINCENT EVANS AND GERSING ON THE APPLICABILITY OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)

1. We regret that we are unable to share the opinion of the majority of the Court on this issue.

2. It is our view that Article 1 of Protocol No. 1 (P1-1) is not applicable in the present case. No doubt the effect of the 1972 Act and of the Board of Appeal’s decisions under it was to reduce the scope of the applicants’ professional activities, but we find it difficult to conclude that this involved an interference with "the peaceful enjoyment of [their] possessions" within the meaning of Article 1 (P1-1).

3. The freedom to use the title "accountant" which the applicants had prior to the entry into force of the regulatory provisions of the 1972 Act did not, in our opinion, constitute a property right protected by that Article. Nor were the measures taken directed at controlling the use of property but at regulating the exercise of a professional activity.

4. As to the alleged loss of clientèle resulting from the measures complained of, "goodwill" may indeed for certain purposes be an element of the economic value of a person’s business and thus an integral part of his property. However, we do not consider that the professional expectations allegedly lost by the applicants should be regarded as part of their "possessions", or that the measures taken should be regarded as an interference with the peaceful enjoyment of their "possessions", within the meaning of Article 1 (P1-1). A wide variety of legislative and other measures can affect incidentally the scope, profitability and therefore the "goodwill" value of a business. We take the view that the Contracting States are entitled to adopt measures of the kind in question in the present case without being bound by the restrictions embodied in Article 1 (P1-1). To regard such measures as an interference with the peaceful enjoyment of possessions requiring justification within the terms of that Article (P1-1) gives it, in our opinion, an interpretation going beyond its object and purpose.