CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 septembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                              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)