OVRAN AND OTHERS v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The first applicant, Orde van Register Adviseurs Nederland (Association of Chartered Advisers Netherlands, “OvRAN”) is an association under Netherlands law based in Wassenaar. Mr Antonius Johannes Boer was born in 1946 and lives in Delft; Mr Nicolaas Plug was born in 1948 and lives in Noordwijk; Mr Cornelis Bernardus Antonius Spil was born in 1941 and lives in Deventer; and Mr Rein Wierdsma was born in 1965 and lives in Leeuwarden. All four individual applicants are Netherlands nationals and all state their occupation as “Accountant/Consultant”. The applicants are represented by Mr A.W. Eikelboom, a lawyer practising in Amsterdam. 2. 3. In the Netherlands, accountants are either chartered accountants (registeraccountants) or accountants-administrative consultants (accountants-administratieconsulenten) depending on their training and qualifications. Both chartered accountants and accountants-administrative consultants are required to be members of their respective professional organisations, the Netherlands Institute of Chartered Accountants (Nederlands Instituut van Registeraccountants, “NIvRA”) and the Netherlands Association of Accountants-Administrative Consultants (Nederlandse Orde van Accountants-Administratieconsulenten, “NOvAA”). 4. In 2009, a group of chartered accountants who were displeased by particular developments which they perceived within NIvRA, set up a separate professional organisation, which following a name change was called OvRAN by the time of the events complained of, intending it to be an alternative to NIvRA. Membership of OvRAN was open to members and former members of both NIvRA and NOvAA. 5. NIvRA and NOvAA brought actions against OvRAN in the civil courts, the result of which was that OvRAN and those of its members who were not also members of NIvRA or NOvAA were no longer permitted to use the title “accountant” or perform statutory audits. No details have been given of these proceedings. 6. On 19 October 2009 OvRAN, represented by the applicant Mr Spil as its president, wrote to the Director of Financial Markets within the Ministry of Finance asking for: an interpretation of section 1(4) of the Chartered Accountants Act and section 2(4) of the Accountants-Administrative Consultants Act (see below) in order that its members be entered on the registers of chartered accountants or accountants-administrative consultants, as the case might be, and permitted to use the title “accountant”, without having to be members of NIvRA and NOvAA; and the application of section 28 of the Organisations of Accountants (Supervision) Act (Wet toezicht accountantsorganisaties) in order that its members be permitted to carry out legal audits. 7. On 19 November 2009 the Director of Financial Markets sent a reply to the effect that only the courts could give a binding interpretation of legislation and pointing to the status of NIvRA and NOvAA as public bodies invested with delegated legislative powers. 8. On 30 November 2009 OvRAN lodged objections (bezwaarschriften) against the letter of the Director of Financial Markets, invoking Article 11 of the Convention and denouncing certain actions of NIvRA and NOvAA as unethical. 9. On 18 December 2009 the Director of Financial Markets dismissed the objections. The refusal to give an interpretation of statutory provisions was not a “decision” in the sense of having an intended legal effect, which meant that an objection against it was inadmissible. Objections and appeals against a refusal to adopt statutory or delegated legislation were ruled out by the General Administrative Law Act (Algemene wet bestuursrecht; see below). 10. On 21 January 2010 OvRAN lodged an appeal with the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven), citing the Minister of Finance as the defendant. It relied on the same grounds as in the objection proceedings and additionally on Article 13 of the Convention. OvRAN asked for its appeal to be joined with related appeals lodged by the applicants Mr Boer, Mr Plug and Mr Spil. 11. The Industrial Appeals Tribunal gave its decision on 15 February 2011. It held that the Minister of Finance had rightly taken the view that the letter of 19 November 2009 did not comprise a decision within the meaning of section 1:3 of the General Administrative Law Act. Nor could the applicants rely on Article 13, since legal remedies were available through NIvRA and NOvAA. The appeal was therefore inadmissible. 12. As relevant to the case, the Civil Code at the relevant time provided as follows: “1. The legal person shall commission a chartered accountant or an accountant-administrative consultant in relation to whom a note as referred to in section 36(3) of the Accountants-Administrative Consultants Act has been added to the entry in the register referred to in section 36(1) of that Act to audit its annual accounts. An organisation in which eligible accountants cooperate may be commissioned. ...” 13. Provisions of the Chartered Accountants Act (Wet op de Registeraccountants) relevant to the case were the following: “1. There shall be an association of chartered accountants, by the name of Netherlands Institute of Chartered Accountants [i.e. NIvRA], hereinafter the Association. Its members shall be those entered in the register of accountants referred to in section 55. 2. The Association shall be based in Amsterdam. It shall be a public body within the meaning of Article 134 of the Constitution. 3. The task of the Association shall be the promotion of the proper exercise by chartered accountants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of chartered accountants and organising, or causing to be organised, the [obligatory three-year] traineeship ... 4. In derogation from the first paragraph, those entered in the register of chartered accountants under section 58(b) in conjunction with section 59(2) [i.e. chartered accountants with a license to audit delivered by another Member State of the European Union or European Economic Area] shall be members of the Association only if they have expressed such a wish in writing to the governing body of the Association.” “1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 1. 2. For the proper exercise of chartered accountants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on all those who are entered in the register referred to in section 55. ...” “1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request. ...” “A person who is entered in the register referred to in section 55 has the right to use the title chartered accountant and its abbreviation (registeraccountant, afgekort RA). “It is forbidden a person who is not entered in the register of accountants referred to in section 55 to use the title chartered accountant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.” 14. Provisions of the Accountants-Administrative Consultants Act (Wet op de Accountants-Administratieconsulenten) relevant to the case were the following: “1. There shall be an Association of Accountants-Administrative Consultants [i.e. NOvAA], whose members shall be those entered in the register of accountants referred to in section 36. 2. The Association shall be based in The Hague. It shall be a public body within the meaning of Article 134 of the Constitution. 3. The task of the Association shall be the promotion of the proper exercise by accountants-administrative consultants of their profession and the protection of their common interest. ... Its task shall also include caring for the honour and position of Accountants-Administrative Consultants and organising, or causing to be organised, the [obligatory three-year] traineeship ... 4. In derogation from the first paragraph, those entered in the register of chartered accountants under section 58(b) in conjunction with section 59(2) [i.e. chartered accountants with a license to audit delivered by another Member State of the European Union or European Economic Area] shall be members of the Association only if they have expressed such a wish in writing to the governing body of the Association.” “1. The general meeting shall make the bye-laws which it considers necessary to fulfil the task set out in section 2(3). 2. For the proper exercise of accountants-administrative consultants’ professional activities, the general meeting shall set professional rules and rules of conduct in a bye-law, which shall be binding on accountants-administrative consultants. ...” “1. The rules prescribed in the bye-law referred to in section 24(2) relating to the exercise of professional activities concerning the carrying out of legal audits by accountants-administrative consultants within the meaning of section 1(j) of the Organisations of Accountants (Supervision) Act shall have the same content as the rules thereto pertaining set out in the bye-law referred to in section 24(2) of the Chartered Accountants Act. 2. For the purpose of implementing the first paragraph a draft of the provisions thereto pertaining shall be drawn up by a committee consisting of an equal number of members of the Netherlands Institute of Chartered Accountants and the Netherlands Association of Accountants-Administrative Consultants. ...” “1. There shall be a register of accountants, in which those who meet the standards set by this Act shall be entered at their request as accountants-administrative consultants. ... 3. When entering a person who [meets the necessary standards of training and professional competence] a note shall be added indicating that he may be commissioned to audit annual accounts as referred to in Article 2:393 § 1 of the Civil Code. ...” “A person who is entered in the register referred to in section 36 has the right to use the title accountant-administrative consultant and its abbreviation (accountant-admministratieconsulent, afgekort AA). “It is forbidden a person who is not entered in the register referred to in section 36 to use the title accountant-administrative consultant without any addition or in any composite or abbreviated form, or to behave in such a way that the public must reasonably be under the impression that he is entitled to use that title.” 15. As relevant to the case before the Court, the Organisations of Accountants (Supervision) Act provided as follows: “An external accountant shall be a chartered accountant or an accountant-administrative consultant in relation to whom a note has been added in the register as referred to in section 36(3) and who complies with the rules set by or under the Chartered Accountants Act or the Accountants-Administrative Consultants Act in so far as these relate to the commissioning or carrying out of a legal audit.” “Section 27 may be declared ineffective by statutory instrument (algemene maatregel van bestuur) with a view to securing the public function of the audit statement.” 16. As relevant to the case, the General Administrative Law Act provides as follows: “1. The expression ‘decision’ shall be understood to mean: a written decision of an administrative organ comprising a legal act under public law. ...” “For the purpose of applying legal provisions on objection and appeal proceedings, the following shall be equated with a decision: (a) a refusal to take a decision;...” No appeal can be lodged against: (a) a decision comprising a generally binding prescription or a policy rule; ...”