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.