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).