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THE FACTS

The applicant [Mr Daniel San Juan] is a French national who was born in 1947 and lives in Drancy, in the département of Seine-Saint-Denis (France). He was represented before the Court by Mr Olivier de Nervo, of the Conseil d’Etat and Court of Cassation Bar.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant has worked as an accountant for various accountancy firms since 1 July 1965. In 1995 he applied to be registered as a chartered accountant (a member of the ordre des experts-comptables, the Association of Chartered Accountants) on the basis of his professional experience, under section 7 bis of Ordinance no. 45-2138 of 19 September 1945.

The procedure laid down in the Ordinance provides for the possibility of becoming a chartered accountant on the basis of professional experience; candidates must demonstrate that they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. Applications are considered by a regional committee, and unsuccessful candidates may appeal to the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945 (“the National Committee”).

On 14 May 1996 the Ile-de-France regional committee refused the applicant’s application on the ground that he had not produced certificates attesting that he had five years’ experience in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. It held that, as a result, the applicant did not “fully satisfy the requirements laid down in the relevant provisions” and could not “be regarded as having acquired experience comparable to that of a well-qualified chartered accountant, as is required by section 7 bis of the Ordinance of 19 September 1945”.

The applicant appealed against that decision to the National Committee, arguing that the assessment of his professional experience had been incorrect and that the regional committee had infringed the principle of equality of opportunity in prematurely refusing his application. On 18 November 1996 the National Committee dismissed the applicant’s appeal, giving the following reasons for its decision:

“The candidate was considered on the basis of the application he submitted.

As a consequence of an appeal, the National Committee rehears the case as a whole. At that stage, the candidate had the opportunity to produce additional information in support of his appeal. Consequently, the procedure followed did not give rise to any discrimination against him.

In order to satisfy the first requirement laid down in the Decree cited above, candidates must have discharged accounting or auditing duties on a regular basis for fifteen years.

From an examination of the candidate’s application it appears that he satisfies that requirement.

In order to satisfy the second requirement, candidates must have assumed substantial responsibilities in three fields – administrative, financial and accounting – for five years. To qualify as substantial, such responsibilities must be exercised within large institutions that raise complex problems, and must be accompanied by decision-making powers enabling the person in whom they are vested to commit the firm by which he is employed and to influence its future.

As evidence of the responsibilities he has assumed, the candidate has produced various certificates.

Only those from SA LSVO and Socofam are signed by authorised persons.

The certificate issued by Mr Le Petit, the chairman of SA LSVO, states that the candidate performed the duties of a management auditor and did not have any real decision-making powers.

The candidate performed the duties of a managing director for two years and seven months, as is attested by Mr P. Bouquet, the current managing director of SA Socofam.

With regard to the duties performed within the Ile-de-France group ... and subsequently within the Sigafrance company ... and the Socofam company ..., the documents submitted do not give a sufficiently clear indication of the extent of the  powers enjoyed by the candidate in administrative and financial matters; in that respect, there is no proof of such powers having been delegated to him. Moreover, the documents and organisation charts giving details of those duties have been drawn up by the candidate himself and, in some cases, are signed by persons outside the companies or by former managers and cannot be treated as employers’ certificates.

As regards the remainder of the candidate’s career, there is no evidence in his application that the posts or assignments concerned have entailed responsibilities of the kind required by the statutory provisions.

Accordingly, he is unable to show that he has at least five years’ experience in posts entailing substantial administrative, financial and accounting responsibilities.

It follows from the foregoing that Mr San Juan does not satisfy the second requirement laid down in Article 2 § 3 of the Decree of 19 February 1970.”

The applicant applied to the Conseil d’Etat to have the National Committee’s decision set aside. He argued, in particular, that the proceedings before the National Committee did not satisfy the requirements of Article 6 § 1 on account of their secret and anonymous nature. He submitted in that connection that the committee’s decision did not contain any indication of its composition, so that its members remained anonymous. He also observed that the committee had given its decision without holding a public hearing and without hearing evidence from him.

In a judgment of 6 March 1998 the Conseil d’Etat dismissed the application on the following grounds:

Outward legality

... No provision of a statute or of regulations has conferred the status of a court on the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945. The provisions cited above are therefore not applicable to it.

Internal legality

By Article 2, paragraph 3, of the Decree of 19 February 1970, as amended, registration as a chartered accountant is conditional on the candidate’s having ‘fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities’.

It does not appear from the documents in the file that the National Committee erred in law or made a manifest error of assessment in holding that Mr San Juan, who has practised in various companies and accounting firms since 1965 and satisfies the above-mentioned requirement of having fifteen years’ experience, did not have at least five years’ experience in exercising substantial responsibilities of the kind referred to in the Decree of 19 February 1970 cited above. Mr San Juan accordingly has no grounds for seeking the setting aside of the decision of 28 November 1996 in which the National Committee refused him leave to apply to be registered as a chartered accountant.”

B.  Relevant domestic law

Section 7 bis of the Ordinance of 19 September 1945 provides:

“Persons who have carried on an occupation entailing accounting or auditing duties and who have consequently acquired experience comparable to that of a well-qualified chartered accountant, may be granted leave to apply ... to be registered as a member of the ordre with the status of chartered accountant. ...”

Article 2 of the Decree of 19 February 1970, as amended by Decree no. 85-927 of 30 August 1985, provides:

“Persons who are covered by section 7 bis of Ordinance no. 45-2138 of 19 September 1945, cited above, and are at least forty years of age may apply to be registered as a member of the ordre with the status of chartered accountant if they satisfy one of the following conditions:

1.  they are certified accountants registered either on a list of company auditors or on a list of court experts in accountancy;

2.  they are certified accountants with fifteen years’ experience in an occupation entailing the frequent exercise of substantial responsibilities in each of the following three fields:

(a)  accounting;

(b)  verifying accounts prepared by staff under their responsibility; and

(c)  analysing the position and functioning of firms from an economic, legal and financial standpoint; or

3.  they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities.”

COMPLAINTS

1.  The applicant alleged a violation of Article 6 § 1 of the Convention. He maintained, firstly, that Article 6 § 1 was applicable to the proceedings in issue and that the Conseil d’Etat had erred in holding that that provision of the Convention was not applicable in his case.

2.  The applicant further complained that the National Committee dealing with the registration of chartered accountants had given its decision in an anonymous manner, without holding a public hearing and without hearing evidence from him.

THE LAW

Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly...”

In the applicant’s submission, the National Committee had not given him a “fair and public” hearing.

As regards the applicability of Article 6 § 1 of the Convention, the applicant relied on the criteria set out in the Court’s case-law, especially in the cases of Sramek v. Austria (judgment of 22 October 1984, Series A no. 84) and Poiss v. Austria (judgment of 23 April 1987, Series A no. 117), to show that the National Committee was a “tribunal” within the meaning of that provision. He observed that the National Committee had indeed been established by law and that its purpose was to decide, according to standards that were likewise laid down by statute, whether a person applying to be registered as a chartered accountant satisfied the necessary requirements; in so doing it determined an individual’s right to practise a profession. In the applicant’s submission, as the National Committee was a “tribunal” within the meaning of Article 6 § 1 of the Convention, that provision was applicable to the proceedings in issue.

The Government contested that argument. They considered that, in the light of the Court’s conclusion in the case of Van Marle and Others v. the Netherlands (judgment of 26 June 1986, Series A no. 101), Article 6 § 1 was not applicable in the instant case. Comparing the circumstances of the applicant’s case with those of Van Marle and Others, they submitted that there were very strong similarities between the two cases.

In the instant case the Government observed that the regional and national committees did not have judicial status, either under domestic law or from the standpoint of the Court’s case-law (see Beaumartin v. France, judgment of 24 November 1994, Series A no. 296-B). The Government submitted that it had accordingly not been within the power of the National Committee to overturn the regional committee’s decision on appeal on the ground of a procedural irregularity. Its task had been limited to assessing the merit of the applicant’s application, which it had done in holding that he did not satisfy the second requirement for registration as a chartered accountant. The Government therefore considered that the only matter which the National Committee had actually had to determine had been that of the worthiness of the applicant’s application in terms of his professional experience. Consequently, the National Committee’s functions had been as far removed from the typical functions of a court as those of the relevant body had been in Van Marle and Others. In those circumstances it had been a question not of reviewing the lawfulness of previous proceedings or determining a matter of law on the facts of the case, but of assessing the merit of a candidate on the basis of professional requirements specific to the profession of chartered accountant.

By the same token, the Government maintained that the applicant could not assert that he had a right to be registered as a chartered accountant, as registration was dependent on an individual assessment of the merit of each candidate. The applicant, therefore, could no more claim a right to be registered than a candidate at a school or university examination could claim a right to pass. The question of registration as a chartered accountant could accordingly not be regarded as a dispute over a right.

The Government thus contended that the conditions for the application of Article 6 § 1 had not been satisfied in the instant case and asked the Court to dismiss the application as being inadmissible ratione materiae.

In the alternative, the Government submitted that, while they did not consider the National Committee to be a “tribunal” with the function of “determining a civil right” within the meaning of Article 6 § 1 of the Convention, the procedure as a whole had complied with that provision on account of the judicial nature of the review carried out by the Conseil d’Etat.

The applicant, turning to the conditions for the application of Article 6 § 1 of the Convention, considered that the regional and national committees had determined a civil right, contrary to the conclusion reached by the Court in the case of Van Marle and Others cited above. He contended that the regional and national committees differed with regard to their membership and function from the panels that assessed vocational examinations for admission to various professional bodies. In the applicant’s submission, the instant case could be distinguished from Van Marle and Others in that the regional and national committees directly determined a person’s right to practise a particular profession by deciding whether or not he or she should be registered as a chartered accountant. Lastly, the applicant argued that his appeal had not concerned the assessment of his ability but, rather, the “unacceptable” conditions in which his case had been examined. He maintained that the National Committee had indeed ruled on matters “susceptible to judicial assessment”.

The applicant accordingly considered it to have been established that there had been a “dispute over a civil right”. Consequently, since the National Committee was to be regarded as a “tribunal”, Article 6 § 1 was applicable and the applicant should have been entitled to have his case examined in conformity with the requirements set forth in that provision.

The Court notes that the applicant was demanding admission to the profession of chartered accountant in accordance with the conditions laid down in section 7 bis of the Ordinance of 19 September 1945 and that the disagreement concerned his professional ability and, consequently, his claim of a right to be registered. However, it has to be determined whether there was a “contestation” (dispute) within the meaning of Article 6 § 1 of the Convention.

The Court notes at the outset that in the case of Van Marle and Others v. the Netherlands (see the judgment cited above, pp. 11-12, §§ 31-38) it held that there had been no “contestation” within the meaning of Article 6 § 1 in proceedings concerning admission to the profession of accountant. Although it acknowledged that the relevant boards in the Netherlands could have occasion to rule on matters that “inherently [lent] themselves to judicial decision and any disagreement about them [could] be regarded as a ‘contestation’ (dispute) within the meaning of Article 6 § 1”, the Court observes that the complaints made by the applicants to the Board of Appeal in that case related solely to the Board’s second function, namely “evaluating [their] knowledge and experience for carrying on a profession”. It considered an assessment of that kind to be “akin to a school or university examination and ... so far removed from the exercise of the normal judicial function that the safeguards in Article 6 cannot be taken as covering resultant disagreements” (ibid., p. 12, § 36).

It follows from that precedent that the question whether the Board of Appeal ruled on matters susceptible to judicial assessment was decisive for the applicability of Article 6 § 1, irrespective of whether the Board itself had judicial status.

Accordingly, the Court must now ascertain the nature of the National Committee’s decision in the instant case. Before that committee the applicant complained that the regional committee had infringed the principle of equality of opportunity in prematurely refusing his application. The Court notes that the National Committee carried out a thorough review of his application, thereby precluding the possibility of his being discriminated against. In any event, the applicant did not pursue that complaint before the Court.

With this one exception, the applicant’s complaints concerned, in essence, what he regarded as an incorrect assessment of his ability by the regional committee. The National Committee re-examined the entire case, and, therefore, the applicant’s application, giving him the opportunity to produce additional information. He was able to explain why he considered that he satisfied the statutory requirements for registration as a chartered accountant, particularly with regard to his professional experience. The National Committee re-examined the certificates and documents concerning the applicant’s professional experience.

The Court considers that although the regional and national committees’ examination of applications differs from the procedure whereby panels assess vocational examinations for admission to various professional bodies, the fact nonetheless remains that proceedings in such cases entail an assessment of a candidate’s knowledge and experience.

In accordance with its case-law (see Van Marle and Others, cited above, p. 12, § 36), the Court considers that an assessment of that kind, evaluating knowledge and experience for carrying on a profession under a particular title, is akin to a school or university examination and is so far removed from the exercise of the normal judicial function that the safeguards in Article 6 cannot be taken to cover resultant disagreements.

There was thus no “contestation” (dispute) within the meaning of Article 6, which accordingly was not applicable in the instant case.

It is therefore unnecessary for the Court to examine whether the right claimed by the applicant is a “civil right” or whether the proceedings in issue complied with the requirements of Article 6 § 1.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

SAN JUAN v. FRANCE DECISION


SAN JUAN v. FRANCE DECISION