AS TO THE ADMISSIBILITY OF
Application No. 20062/92
by B. Company
and others
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 March 1992 by
B. Company and others against the Netherlands and registered on 2 June
1992 under file No. 20062/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are eight Dutch private companies with limited
liability represented by their director Mr. A.B., two Dutch private
companies with limited liability represented by their director Mr.
J.B., one Dutch private company with limited liability represented by
its director Mr. J. and one Dutch private company with limited
liability represented by Mr. J. and Mr. W. Before the Commission they
are all represented by Mr. A. Eijssen, a tax lawyer practising in
Eindhoven, the Netherlands.
The facts of the case, as submitted by the applicant companies,
may be summarised as follows.
On 30 January 1987 the applicant companies requested the Minister
of Economic Affairs to be exempted from their obligation pursuant to
Section 394 of the Civil Code Book 2 (Burgerlijk Wetboek boek 2) to
publish their balance sheets and profit and loss accounts. According
to Section 394 para. 5 of the Civil Code Book 2 it is possible to
obtain an exemption from this obligation pursuant to Sections 58, 101
or 210 of the Civil Code Book 2. The applicant companies argued that
their clients could by means of these published figures find out the
profits made by them with reasonable exactitude. In these circumstances
the margin of contract negotiations will diminish. The applicant
companies feared that as a result thereof the continuation of their
activities would be endangered, possibly leading to a liquidation of
one or more of the companies.
On 9 july 1987 the Minister of Economic Affairs rejected their
request.
On 7 August 1987 the applicant companies, invoking Article 8 of
the Convention and Article 1 of Protocol No. 1, filed an objection
(bezwaarschrift) with the Minister of Economic Affairs against this
refusal.
By decision of 17 November 1988 the Minister of Economic Affairs
rejected the objection as being ill-founded. Under Article 8 of the
Convention the Minister considered, even assuming there had been an
interference with the applicant companies' private life, that the
obligation to publish their annual accounts is necessary in the
interests of the economic well-being of the country or for the
protection of the rights and freedoms of others and is, therefore,
justified under Article 8 para. 2. The Minister furthermore did not
consider that the obligation at issue infringed the applicant
companies' right to the peaceful enjoyment of their possessions within
the meaning of Article 1 of Protocol No. 1.
On 8 December 1988 the applicant companies filed an appeal
against the decision of 17 November 1988 with the Judicial Division of
the Council of State (Afdeling Rechtspraak van de Raad van State).
By decision of 15 November 1991 the Judicial Division rejected
their appeal. Under Article 8 of the Convention the Judicial Division,
noting that the obligation to publish annual accounts is based on the
directly applicable Fourth Directive of the Council of the European
Communities concerning company law, considered that the interference
with the applicant companies' right to respect for their private life
within the meaning of Article 8 para. 1 of the Convention was justified
under para. 2 of this provision as being necessary in the interests of
the economic well-being of the country and for the protection of the
rights and freedoms of others. Under Article 1 of Protocol No. 1 the
Judicial Division confirmed the Minister's reasoning that the
companies' obligation to publish their annual accounts did not infringe
their right to the peaceful enjoyment of their possessions.
COMPLAINTS
The applicant companies complain that the obligation to publish
their annual accounts violates their rights under Article 8 of the
Convention and Article 1 of Protocol No. 1.
THE LAW
The applicant companies complain that the obligation to publish
their annual accounts violates their rights under Article 8 (Art. 8)
of the Convention and Article 1 of Protocol No. 1 (P1-1).
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to respect for his private
(...) life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of (...) the economic well-being
of the country (...) or for the protection of the rights
and freedoms of others."
Article 1 of Protocol No. 1 (P1-1), insofar as relevant, provides
as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions.
(...)
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest (...)."
The applicant companies accept that Contracting States may impose
such obligations as are necessary in the economic interest of the
country or for the protection of the rights and freedoms of others and
they may apply laws in order to control the use of property in harmony
with the general interest. The applicant companies are, however, of the
opinion that this does not justify the obligation imposed on them to
publish their annual accounts, as for such a supervision it is
sufficient that the State has access to their annual accounts. It is
not necessary that also the public has access to their annual accounts.
The first question arising in this context is whether legal
persons such as the present applicants can be regarded as capable of
having a private life within the meaning of Article 8 (Art. 8) of the
Convention. However, for the reasons set out below the Commission does
not find it necessary to determine this issue.
In fact, even assuming that the obligation to disclose financial
information to the general public, such as annual accounts and profit
and loss accounts, constitutes an interference with the applicants'
right to respect for their private life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention, the Commission finds that this
obligation was in accordance with the law and necessary in a democratic
society for legitimate aims under para. 2 of this Article.
The Commission notes that the obligation to publish annual
accounts is based on Section 394 of the Civil Code Book 2 and on the
directly applicable Fourth Directive of the Council of the European
Communities concerning company law. The obligation to publish annual
accounts was therefore "in accordance with the law" within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention.
As to the legitimate aim pursued the Commission is of the opinion
that the obligation at issue, which aims at a certain control over
commercial activities and the need to ensure honest dealings, serves
the interests of the economic well-being of the country and the
protection of the rights and freedoms of others in the sense of Article
8 para. 2 (Art. 8-2) of the Convention.
As to the question is whether or not the obligation to publish
annual accounts was "necessary in a democratic society" within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention, the
Commission recalls that, in determining whether or not an interference
was "necessary in a democratic society" allowance should be made for
the margin of appreciation that is left to the Contracting States (Eur.
Court. H.R., W. v. the United Kingdom judgment of 8 July 1987, Series
A no. 121, p. 27, para. 60 (b) and (d); Eur. Court H.R., Olsson
judgment of 24 March 1988, Series A no. 130, pp. 31-32, para. 67). In
particular, in implementing social and economic policies the margin of
appreciation is a wide one (Eur. Court H.R., James and others judgment
of 21 February 1986, Series A no. 98, p. 32, para. 46).
Having regard to the fact that the obligation to publish annual
accounts is based on a Directive from the Council of the European
Communities concerning company law and to the fact that under certain
conditions an exemption from this obligation can be obtained, the
Commission considers that the obligation complained of is not
disproportionate to the legitimate aim pursued and may reasonably be
considered as necessary in a democratic society.
The needs of democracy justify transparency in commercial
companies' finances. The interest of the general public in being
informed about matters of public economic concern can best be served
by the publication of basic financial data of such companies (cf.
Mohamed Al Fayed, Ali Fayed and Salah Fayed v. the United Kingdom,
Comm. Report 7.4.93, Appendix II, p. 51).
Insofar as the applicant companies rely on Article 1 of Protocol
No. 1 (P1-1) the Commission finds no interference with their enjoyment
of their possessions.
It follows that the applicant companies' complaints are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy