SAN JUAN v. FRANCE
Inadmissible
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. 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.” 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.”