Last Updated on July 14, 2022 by LawEuro
By a decision of 15 April 2021, sent by a letter of the same date, the French Conseil d’État requested the European Court of Human Rights, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
GRAND CHAMBER
ADVISORY OPINION
on the difference in treatment between landowners’ associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and landowners’ associations set up after that date
requested by
the French Conseil d’État
(Request no. P16-2021-002)
STRASBOURG
13 July 2022
This opinion is final. It may be subject to editorial revision.
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Robert Spano, President,
Síofra O’Leary,
Georges Ravarani,
Marko Bošnjak,
Gabriele Kucsko-Stadlmayer,
Yonko Grozev,
Pere Pastor Vilanova,
Pauliine Koskelo,
Lәtif Hüseynov,
Jovan Ilievski,
Jolien Schukking,
Lado Chanturia,
Erik Wennerström,
Raffaele Sabato,
Saadet Yüksel,
Anja Seibert-Fohr,
Mattias Guyomar, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 30 March and 22 June 2022,
Delivers the following opinion, which was adopted on the last-mentioned date:
PROCEDURE
1. By a decision of 15 April 2021, sent by a letter of the same date, the French Conseil d’État requested the European Court of Human Rights (“the Court”), under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the question set out at paragraph 9 below.
2. On 31 May 2021 the panel of five judges of the Grand Chamber of the Court, composed in accordance with Article 2 § 3 of Protocol No. 16 and Rule 93 § 1 of the Rules of Court (“the Rules”), decided to accept the request.
3. The composition of the Grand Chamber was determined on 2 June 2021 in accordance with Rules 24 § 2 (g) and 94 § 1.
4. By letters of 14 June 2021 the Deputy Grand Chamber Registrar informed the parties (Forestiers Privés de France and the Ministry for Ecological Transition and Solidarity) and the third parties to the domestic proceedings (the Fédération nationale des chasseurs (the National Hunters’ Federation, hereafter the FNC) and the Association nationale des fédérations départementales et interdépartementales des chasseurs à associations communales et intercommunales de chasse agréées, hereafter the ANF‑ACCA-AICA) that the President of the Grand Chamber was inviting them to submit to the Court written observations on the request for an advisory opinion by 6 July 2021 (Article 3 of Protocol No. 16 and Rule 94 §§ 3 and 4). Within that time-limit, written observations were submitted jointly by the FNC and the ANF-ACCA-AICA. Following acceptance of a request for an extension to the time initially allowed, Forestiers Privés de France submitted written observations on 3 September 2021. After an exchange of these observations between the parties and the third parties to the domestic proceedings, the FNC and the ANF-ACCA-AICA submitted joint observations in reply on 14 October 2021.
5. On 30 August 2021 the French Government (“the Government”) submitted written observations under Article 3 of Protocol No. 16. The Commissioner for Human Rights of the Council of Europe did not avail herself of that right.
6. Copies of the observations received were transmitted to the Conseil d’État, which made no comments on them (Rule 94 § 6).
7. By a letter of 16 August 2021, the Conseil d’État informed the Court that the 6th section of the Judicial Division of the Conseil d’État, on a request by the Poitiers Administrative Court in the case of Association de chasse des propriétaires libres (no. 452327), had transmitted to the Constitutional Council, by a decision of 4 August 2021, a request for a preliminary ruling on constitutionality raising a question similar to that which had given rise to the present request for an advisory opinion. Following receipt of that information, examination of the Conseil d’État’s request for an advisory opinion was suspended and was subsequently resumed on 4 November 2021, the date on which the Constitutional Council issued its decision on the request for a preliminary ruling on constitutionality submitted to it (see paragraph 24 below).
8. After the close of the written procedure, the President of the Grand Chamber decided that no oral hearing should be held (Rule 94 § 6).
THE QUESTION ASKED
9. The question put to the Court by the Conseil d’État in Article 2 of the operative provisions of its decision of 15 April 2021 was worded as follows:
“What are the relevant criteria for assessing whether a legally established difference in treatment, as described in point 13 of the present decision, pursues, having regard to the prohibitions set out in Article 14 of the Convention taken together with Article 1 of the First Additional Protocol, a public-interest aim based on objective and rational criteria, related to the aims of the law introducing it, which, in the present case, is intended to prevent the unregulated exercise of hunting and promote rational use of game stocks, in particular by encouraging the practice of hunting on grounds with a sufficiently stable and extensive area?”
10. Point 13 of the decision of 15 April 2021 (to which the question asked by the Conseil d’État refers) is worded as follows:
“It follows from Article L. 422-18 of the Environment Code as worded subsequent to the Law of 24 July 2019 that, in addition to landowners or holders of hunting rights over land in a single block of land attaining or greater than the minimum surface area resulting from Article L. 422-13 of this Code, only those landowners’ associations which had a recognised existence prior to the date of creation of the АССА are entitled to withdraw from it, provided that they pool plots of land with a total area meeting the condition laid down in Article L. 422-13; comparable associations created after that date are deprived of that right, even where they bring together plots of land with a total area meeting the condition laid down in Article L. 422-13.”
11. Point no. 16 of the Conseil d’État’s decision of 15 April 2021 clarifies the “question of principle” which, in its view, arises under Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1:
“16. The present dispute thus raises a question as to which criteria should be used in assessing a difference of treatment that is established by law, such as that set out in point 13 …, in order to assess, in particular, whether the general-interest ground intended to ensure better regulation of hunting can justify reserving the possibility of withdrawal from an approved municipal hunters’ association, as regards owners of land or of hunting rights who attain the minimum threshold by forming an association, only to those associations which existed at the date on which this approved municipal hunters’ association was set up. This question is one of principle, concerning the application of Article 14 of the Convention … and Article 1 of Protocol No. 1 thereto, which could potentially concern the other States Parties to the Convention, as several other States have on their statutes hunting legislation that is comparable to that in force in France.”
THE BACKGROUND AND THE DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST FOR AN OPINION
12. The question put to the Court arises in the context of pending proceedings before the Conseil d’État, to which an application was made following an amendment to Article L. 422-18 of the Environment Code by section 13 (point I, no. 16) of Law no. 2019-773 of 24 July 2019 on the creation of the French Agency for Biodiversity (l’Office français de la biodiversité), altering the missions of the hunters’ federations and strengthening the environmental protection police.
13. The relevant domestic law and practice prior or subsequent to the legislative amendment in issue are set out in paragraphs 25-54 below.
1. The proceedings before the Conseil d’État
14. By an application of 18 February 2020, the applicant federation, Forestiers privés de France, lodged an appeal for judicial review, for misuse of authority, in respect of Prime Ministerial Decree no. 2019-1432 of 23 December 2019 on the public-service missions of the département hunters’ federations in relation to the approved municipal hunters’ associations (hereafter, the “ACCAs”) and the individual hunting plans, a decree adopted in application of Law no. 2019-773 of 24 July 2019. The FNC and the ANF-ACCA-AICA submitted a joint request to intervene in the proceedings, which was accepted by the Conseil d’État. The Court refers to paragraphs 25 to 28 below for an explanation of the creation, in 1964, of the ACCAs.
15. Before the Conseil d’État, the applicant federation challenged the inaction of the regulatory authorities, whom it criticised for failing, through the above Decree no. 2019-1432 of 23 December 2019, to amend Article R. 422-53 of the Environment Code. In its opinion, the temporal distinction introduced by Article L. 422-18 of the Environment Code, as worded following Law no. 2019-773 of 24 July 2019, between landowners’ groups which had been formed prior to or after the creation of the corresponding ACCA was disproportionate and, as such, contrary to Article 14 of the Convention taken together with Article 1 of Protocol No. 1. According to the applicant federation, the aim of preventing destabilisation of the existing ACCAs, put forward by the legislature to justify this difference in treatment, could have been attained by other means, for example by introducing the criterion of a minimum threshold of land for collective withdrawal from an ACCA. It submitted that if hunting had been encouraged in this way on territories with a sufficiently large area, the public-interest aim which had justified the creation of the ACCAs could have been attained without it being necessary to make any kind of temporal distinction between the landowners’ groups as regards the option of withdrawing their hunting grounds from the ACCA. It added that in order to prevent any abuse once the landholding had been withdrawn from the ACCA, the regulatory authorities could have made this right conditional on being able to guarantee the stability of the territory formed by pooling the land belonging to members of such groups.
16. In support of its allegation that the third paragraph of Article L. 422‑18 of the Environment Code as amended was discriminatory, the applicant federation submitted to the Conseil d’État the explanatory memorandum which had been used before the National Assembly to justify the proposed amendment to this provision. The member of parliament who submitted this proposed amendment had argued that the Conseil d’État had departed from its case-law, before concluding that “the legislature must be given its say, in order to prevent the creation of fictive landowners’ associations, a guaranteed precursor to the ACCAs’ ruin and the mismanagement of hunting and wildlife reserves”. The applicant federation also submitted to the Conseil d’État an extract from the official report of a debate in the Senate when enacting draft law no. 2019-773, during which a Secretary of State had accepted that the proposed wording of Article L. 422‑18 of the Environment Code could raise legal questions with regard to respect for the peaceful enjoyment of property, before leaving the matter to the Senate’s discretion.
17. In the defence observations, the Minister for Ecological Transition and Solidarity emphasised that Article R. 422-53 of the Environment Code, challenged by the applicant party, did not result from Decree no. 2019-1432 of 23 December 2019, appealed against before the Conseil d’État, but from Decree no. 66-747 of 6 October 1966, issued in application of Law no. 64‑696 of 10 July 1964 (known as the “Loi Verdeille”) on the creation of approved municipal and inter-municipality hunters’ associations. In her submission, this latter provision could not be challenged in the context of the appeal for judicial review brought by the applicant federation.
18. She submitted that, in any event, the provisions of Article R. 422‑53 of the Environment Code were not incompatible with the new provisions of Law no. 2019-773 of 24 July 2019, since they merely laid down the conditions regulating the right to object, namely that the acquired plots of land had to form, with the original landholdings, a contiguous area in a single block and attain the minimum area laid down in the law. The State was not therefore obliged to amend those provisions to bring them into line with the provisions of Article L. 422-18, third paragraph, of the Environment Code, as amended by the Law of 24 July 2019.
19. The third-party interveners (see paragraph 4 above) submitted, firstly, that the argument alleging a breach of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention was, in their view, unfounded. They argued that the distinction introduced by the legislature in 2019 corresponded to the legitimate aim of avoiding the fragmentation of hunting grounds already grouped together in ACCAs, by preventing the ad hoc creation of landowners’ associations whose sole purpose would be to break up the territory of the existing АСCАs.
They submitted that although Article R. 422-53 of the Environment Code could have been regarded as unlawful on the date in 2018 when, noting that the law was silent, the Conseil d’État had interpreted Article L. 422-18 of the Environment Code, once that provision had been amended by Law no. 2019‑773 of 24 July 2019 it was no longer necessary to amend it: following the Conseil d’État’s interpretation, there now existed a legal basis for the fact that it was impossible for associations which were formed after the corresponding ACCA to withdraw from it.
20. The third-party interveners submitted, secondly, that the fact of authorising the withdrawal of their hunting grounds by small landowners who had formed an association after the creation of the АССА would be tantamount to instituting a legal mechanism favouring the fragmentation of the ACCAs’ territories, which would necessarily jeopardise them. In their view, this would also undermine the aim pursued by the ACCAs, namely preserving the “popular” hunting practised through that arrangement by the pooling of hunting grounds, which thus became accessible to everyone (landowners and non-landowners). The subsequent withdrawal of hunting grounds from the ACCA by small landowners who had formed an association would amount to favouring these landowners, by allowing them to group together in private hunting associations in order to hunt on their own land, although the communal hunting grounds were accessible to all (including hunters who were not landowners). According to the third-party interveners, on the pretext of combating discrimination, the withdrawal of plots of land by landowners’ associations formed after the creation of an АССА would therefore promote discrimination on the basis of “property” between landowning and non-landowning hunters.
21. By a decision of 15 April 2021, the Conseil d’Etat, sitting in its judicial capacity, deferred its decision on the applicant federation’s request until the Court had given its opinion on the question asked (see paragraph 9 above).
2. The proceedings before the Constitutional Council (request for a preliminary ruling on constitutionality)
22. By a decision of 4 August 2021, handed down in a different case (Association de chasse des propriétaires libres, no. 452327) from that which had resulted in its decision of 15 April 2021, the Conseil d’État referred to the Constitutional Council a request for a preliminary ruling on constitutionality. This ruling concerned the conformity with the rights and freedoms guaranteed by the Constitution of the last paragraph of Article L. 422-18 of the Environment Code, as amended by Law no. 2019-773 of 24 July 2019 creating the French Agency for Biodiversity, altering the missions of the hunters’ federations and strengthening the environmental protection police.
23. The applicant association in the case of Association de chasse des propriétaires libres alleged that these provisions denied landowners’ associations which held pooled land reaching the required minimum area the right to withdraw from the territory of the ACCA to which they were affiliated if they had been formed after the creation of that ACCA. However, this right had been granted to landowners and landowners’ associations formed before the creation of the ACCA, if their land attained this same surface area. This resulted in a difference in treatment, which it considered contrary to the principle of equality before the law. The applicant association further maintained that, by depriving those landowners’ associations of their right to withdraw, the provisions in question interfered disproportionately with the right of property.
24. By decision no. 2021-944 (QPC) of 4 November 2021, the Constitutional Council noted, firstly, that the request for a preliminary ruling on constitutionality referred to it concerned the words “having a recognised existence when the association was set up”, appearing in the last paragraph of Article L. 422-18 of the Environment Code. In its opinion, the difference in treatment criticised by the applicant association was based on a difference in situation and was connected to the purpose of the law. The Constitutional Council also considered that, in depriving certain landowners of the right to withdraw their hunting grounds from the ACCA, the impugned provisions did not interfere disproportionately with their right of property. It decided, in consequence, that the words “having a recognised existence when the association was set up”, contained in the last paragraph of Article L. 422-18 of the Environment Code, were consistent with the Constitution. In reaching this conclusion, the Constitutional Council stated:
“5. … The principle of equality does not prevent the law from being applied differently in different situations, or from derogating from equality on general-interest grounds, provided that, in both cases, the resulting difference in treatment is proportionate to the purpose of the law establishing it.
6. The tasks of the ACCAs, in the municipalities of the départements subject to extensive fragmentation of landholdings in which they have been set up, is to ensure, in the general interest, the proper technical organisation of hunting and to promote the balanced management of game, wild fauna and biotopes by organising the practice of hunting over grounds with a sufficiently stable and large area.
…
8. The impugned provisions deprive landowners’ associations formed after the creation of an ACCA of the right to withdraw from it, even where the pooled landholdings attain that minimum area. In so doing, these provisions give rise to a difference in treatment between, on the one hand, the latter associations and, on the other, landowners and the landowners’ associations which had a recognised existence prior to the creation of the ACCA.
9. It follows from the drafting history that, in enacting the impugned provisions, the legislature intended to prevent the fragmentation and reduction of the ACCAs’ hunting grounds, and thus to ensure the stability and viability of those grounds.
10. However, a landowners’ association which is set up subsequent to the [ACCA], when pooling its members’ land with a view to organising their hunting activities notwithstanding the fact that their hunting rights were transferred to the ACCA at the time of the latter’s creation, cannot be regarded as having any other purpose than to withdraw that land from the latter’s hunting grounds. With regard to the purpose of the impugned provisions, such an association is not therefore placed in the same situation as a landowners’ association existing prior to the ACCA and which was already managing game stocks, or a landowner who, alone, holds a plot of land reaching the minimum required area.
11. The difference in treatment criticised by the applicant association, which is thus based on a difference in situation, is in keeping with the purpose of the law.
12. It follows from the above that the complaint alleging a breach of principle of equality before the law must be dismissed.
13. Secondly, the right to hunt on land is linked to the right to use that land, which is an attribute of the right of property. The legislature is free to impose limitations on the conditions for the exercise of the right of property by private individuals, protected by Article 2 of the Declaration of 1789; these limitations may be linked to constitutional requirements or justified by the general interest, provided that this does not lead to disproportionate harm in relation to the aim pursued.
14. On the one hand, as stated in paragraph 6, the general-interest aim assigned by the legislature to the ACCAs is to ensure the proper organisation of hunting while preserving a balance between hunting, agriculture and forestry.
15. On the other hand, landowners who are required to transfer hunting rights over their land to the municipal association are not deprived of their right to hunt, but only of the exclusive exercise of that right on that land. In exchange, these landowners, who obtain automatic membership of the ACCA, are authorised to hunt on the whole of the hunting grounds formed by this ACCA.
16. Thus, by depriving landowners of the right to withdraw their hunting grounds from the ACCA when they form an association for that purpose, the impugned provisions do not disproportionately infringe the right of property. The complaint that there has been a breach of the right to property must therefore be dismissed.
17. Consequently, the impugned provisions, which do not breach any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution.
…”
RELEVANT DOMESTIC LAW AND PRACTICE
1. The conditions of creation of the ACCAs
25. In French law the right to hunt on a plot of land is attached to the right to use that land, an attribute of the right of property. It follows, as stated in Article L. 422-1 of the Environment Code, resulting from the former Article L. 222-1 of the Countryside Code, that “No one shall have the right to hunt on land belonging to another without the consent of the owner or any person entitled through or under the owner”.
26. However, in regions where the fragmentation of land ownership was very marked, especially in the south of France, the practice of so-called “public” hunting (“la chasse banale”), carried out on land belonging to others by virtue of assumed authorisation, became widespread. The result was that the population figures for certain animal species fell, there was extensive damage to crops and ecosystems and the number of hunting accidents increased.
27. In order to rectify these consequences, the legislature decided to organise the pooling of landholdings for the exercise of the right to hunt along the lines of the regulations applicable in Alsace and Moselle, in force since the local law of 7 February 1881.
28. Thus, Law no. 64-696 of 10 July 1964 on the organisation of approved municipal and inter-municipality hunters’ associations (known as the “Loi Verdeille” of 1964), the provisions of which, some in amended form, are now consolidated in Articles L. 422-2 et seq. of the Environment Code, introduced approved municipal hunters’ associations (ACCA) and approved inter-municipality hunters’ associations (AICA), the purpose of which is defined by Article L. 422-2 of the Environment Code as follows:
“The approved municipal and inter-municipality hunters’ associations are designed to ensure sound technical organisation of hunting. They shall encourage, on their hunting grounds, an increase in game stocks and wildlife while preserving a genuine balance between agriculture, forestry and hunting, provide instruction to their members in hunting-related matters and ensure the control of vermin and compliance with hunting plans, by allocating the appropriate resources for that purpose and, in particular, by issuing temporary hunting permits. Their role is also to ensure that hunters contribute to the conservation of natural habitats and wild flora and fauna.
Their activity shall be conducted without interfering with property rights or crops and shall be coordinated by the hunters’ federation in the départements. The approved municipal and inter-municipality hunters’ associations shall cooperate with all the countryside partners.”
Under Article L. 425-4 of the Environment Code, “the balance between agriculture, forestry and hunting consists in ensuring compatibility between, on the one hand, the sustainable presence of a rich and varied wild fauna and, on the other, the sustainability and economic profitability of farming and forestry activities… This balance is ensured by the concerted and sustainable management of wild fauna species and their farmland and forest habitats [and] … by a combination of the following means: hunting, regulation, prevention of game damage by the introduction of protective and dissuasive measures, and, where applicable, authorised culls”.
29. As one attribute of the right of property, the right to hunt belongs to the landowner, who can reserve this right, give it to a third party in exchange for rent, or lease it to the holder of an agricultural tenancy at the same time as the land on which it is exercised (“owners of the hunting rights”), or hand it over to an ACCA.
30. Under the legal regime introduced by the Loi Verdeille, and which is still in force in this regard, the conditions for setting up an ACCA differ depending on the département. This distinction was provided for by the legislature in order to encourage the creation of the ACCAs, by targeting in particular those départements in which there existed a strong historical trend of “public hunting” (“chasse banale”), that is, hunting that was open to everyone.
31. The creation of ACCAs is mandatory only in certain départements named on a list drawn up by the Minister with responsibility for hunting, on a proposal by the prefect in the relevant département, supported by the département council and after prior consultation with the Chamber of Agriculture and the Hunters’ Federation in that département (Article L. 422‑6 of the Environment Code). Twenty-nine of the ninety-three metropolitan départements other than Bas-Rhin, Haut-Rhin and Moselle are concerned. In the remainder of these 93 départements the president of the département hunters’ federation draws up a list of municipalities where an ACCA is to be set up; his or her decision is taken on an application by anyone who can furnish evidence that at least 60% of landowners holding at least 60% of the land in the municipality agree to set up an association for a period of six years (Article L. 422-7 of the Environment Code).
32. Once the ACCA has been created, the applicable regulations are identical, irrespective of whether or not the département in question is included in the list provided for in the above-mentioned Article L. 422-6. Thus, all ACCAs enjoy a prerogative outside the orbit of the ordinary law, namely that of being granted “exclusive” hunting rights throughout the entire territory under their control.
33. The ACCAs are subject to the ordinary law on associations (Law of 1 July 1901) and to the specific provisions of the Loi Verdeille and the regulatory instruments implementing it (Articles L. 422-1 et seq. and Article R. 422-1 et seq. of the Environment Code). The president of the hunters’ federation of each département grants approval after checking that the requisite formalities have been completed and that the association’s constitution and internal rules conform to the statutory requirements (Articles L. 422-3 and R. 422-39 of the Environment Code). Any change to the ACCA’s constitution, internal rules or hunting regulations must be submitted for approval to the president of the département hunters’ federation (Articles R. 422-1 and R. 422-2 of the Environment Code).
34. Pursuant to Article L. 422-10 of the Environment Code, the ACCA “shall be established on lands other than those: 1. within a radius of 150 metres of any dwelling; 2. enclosed by a fence … ; 3. forming an uninterrupted area greater than the minimum area referred to in Article L. 422-13 and in relation to which the owners of the land or of the hunting rights have filed objections; 4. constituting public property belonging to the State, a département or a municipality or forming part of a public forest, or belonging to the French National Railway Company (SNCF), the SNCF Network or SNCF Voyageurs [the SNCF subsidiary responsible for passenger transport]; 5. in relation to which objections have been filed by individual owners, or unanimously by several co-owners acting jointly, who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands[1]”.
35. Landowners whose land is compulsorily transferred into the hunting grounds of an ACCA become automatic members of it (Article L. 422-21 of the Environment Code); they lose their exclusive hunting rights over the land but, as members, have the right to hunt throughout the association’s hunting grounds in accordance with its regulations (Articles L. 422‑16 and L. 422-22 of the Environment Code). The other attributes of their right of property are unaffected. The transfer of hunting rights to the ACCA entitles the landowner to compensation, payable by the ACCA, for any loss of profits caused by being deprived of a previous source of income. The ACCA is also obliged to pay compensation to owners of hunting rights who have “made improvements to the land over which they have hunting rights” (Article L. 422-17 of the Environment Code).
36. Hunters who are not landowners and are domiciled or have been residing for more than four years in the municipality where the ACCA has been created are entitled to hunt there if they hold a valid hunting licence. They are ex officio members of the ACCA. The ACCAs must also accept a percentage of hunters who have no ties with the municipality in which the ACCA was created: this rule concerns, in particular, hunters who live in “an urban area”, where an ACCA cannot be created, and do not own land in the countryside. They can be issued with temporary membership cards, since one of the ACCAs’ missions is to open up access to hunting for as many people as possible, depending on the hunting capacity of the territories in question. The task of supervising the reception of these external members falls to the prefect and the département hunters’ federation with responsibility for coordinating the ACCAs.
2. The conditions for exercising the right to object to the compulsory transfer of hunting grounds and the related administrative case-law
37. In establishing the system of compulsory transfer of hunting rights to the ACCAs, the legislature set out various conditions enabling landowners who hunt and landowners who are opposed to hunting on ethical grounds to exercise a right of objection.
38. Thus, the 3rd and 5th paragraphs of Article L. 422-10 of the Environment Code provide, respectively, that the only persons who can object to the compulsory transfer of hunting ground are, firstly, owners of land or hunting rights disposing of land in a single block that exceeds a minimum threshold set by the law, and, secondly, landowners who assert that they are opposed to hunting as a matter of personal conviction (see paragraph 34 above).
39. This second option for objecting was added by Law no. 2000-698 of 26 July 2000 on hunting, following this Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94 and 2 others, ECHR 1999‑III).
40. Under Article L. 422-13 of the Environment Code, “[i]n order to be admissible, the objection by the owners of land or hunting rights referred to in the third paragraph of Article L. 422-10 must relate to at least twenty hectares of land in a single block.” Orders issued in respect of each département may reduce or increase the minimum areas thus defined. However, such increases may not bring the new figure to more than twice the minimum area laid down.
41. This legal framework as established by the legislature was clarified by the regulatory authority, which detailed the conditions under which the right to withdraw from an ACCA may be exercised by private landowners whose plot of land does not attain a sufficient size to benefit from the right of objection mentioned in Article L.422-10 of the Environment Code.
42. Under the terms of Article R. 422-53 of the Environment Code, which essentially reproduces Article 44 of Decree no. 66-747 of 6 October 1966, enacted to implement the Loi Verdeille, “where the owner of a plot of land acquires further pieces of contiguous land forming with the first piece of land a single block larger than the minimum size set in that municipality for entitlement to the right to object, he or she shall be entitled to ask for the property thus formed to be removed from the ACCA’s hunting grounds”.
43. The lawfulness of the distinction introduced by the regulatory authority between, on the one hand, property owners acquiring new land in order to reach the threshold required to be able to withdraw from the АССА in the given municipality and, on the other, landowners’ associations formed after the creation of the АССА whose pooled landholdings reach the same threshold, has been examined on several occasions by the Conseil d’État.
44. On the basis of the provisions of section 8 (3) of the Law of 10 July 1964, the Conseil d’État, sitting in its judicial capacity, held in a section decision of 7 July 1978 in Ministre de la Qualité de la vie с. Vauxmoret (no. 99333), that, since the law was silent, but having regard to the aim pursued at the time by the legislature in relation to the need to preserve the ACCAs that were being created, the regulatory authority had been entitled, without breaching the law, not to grant landowners’ associations formed after the creation of the АССА the possibility of withdrawing their pooled hunting grounds from its territory, although they thus reached the threshold laid down in the given municipality to be entitled to object:
“… the fact that, after the compulsory inclusion of his land in the approved hunters’ association, the individual concerned had, with other landowners, formed the so-called Breuil-Mingot Association with a view to constituting a single territory with a surface area of more than 40 hectares, could not, under the provisions of the Law of 10 July 1964 and those of the Decree of 6 October 1966, create on his behalf a right to withdraw his land from the hunting grounds of the approved association and to dispose of the related hunting rights in favour of the private Association being created.
Consequently, as Mr X … did not fulfil one of the conditions required by Article 44 of the Decree of 6 October 1966 for a landowner to be able to avail himself of a right to withdraw, the President of the Poitiers Inter-municipality Hunters’ Association was obliged to reject this request …”
45. In his submissions to the judicial formation of the Conseil d’État in the above-cited Ministre de la Qualité de la vie case, the Government Commissioner referred to the aim of “increasing democratic participation in hunting” pursued by the Loi Verdeille as justification for the means employed by the legislature to achieve it:
“The general purpose of the 1964 reform is clear. It is not merely a matter of creating viable hunting territories, that is, with a minimum surface area, something that private associations, provided they are effective, can theoretically achieve just as well as the municipal associations. It is primarily a question of reviving what many members of parliament have described as “public” hunting, that is, hunting open to all, while avoiding the excesses which, particularly in the départements of the south of France, resulted in a very rapid reduction of wild game numbers. From this perspective, organised municipal hunting must be the ordinary rule, given the full protection of the law, and private hunting must remain the exception.
It is not our intention to pass value judgment on this reform, but it seems clear to us that the possibility given to landowners who are automatically included in the ACCA to withdraw from it every six years, by reaching a simple agreement with their neighbours — admittedly, on condition that this agreement is registered two years before the deadline — would result in the rapid ruin of the approved associations.
The objective of ensuring democratic participation in hunting pursued by the law – admittedly at the price of a serious interference with the right of property – would thus be compromised: it is not even certain that the private hunting grounds reconstituted in this way would genuinely exist. Indeed, one can imagine that in many cases the sole purpose of forming [landowners’ associations] would be to remove small landholdings from the control of the ACCA, on each of which each interested party would then continue to hunt on his own account, as was the case prior to the reform. This risk also existed with regard to objections, especially in view of your Moulin de Segères case-law, but it goes without saying that it is a much more serious matter to reopen this ‘valve’ every six years than to have opened it once, when the [Loi Verdeille] entered into force in each municipality” (AJDA review, 20 June 1979, p. 39).”
46. This first decision by the Conseil d’État was supplemented by another, Lamarque and Others (13 February 1980, no. 09807, p. 77), in which it was found that the regulatory authority had been entitled, without breaching the principle of equality before the law, to grant the right to withdraw from the АССА to landowners who acquired land in order to constitute a hunting territory reaching the required minimum threshold, while denying this right to associations of owners of land or hunting rights which were formed after the creation of the relevant АССА, although they disposed of an overall area exceeding the given threshold (Conseil d’État, Lamarque and Others, cited above). Called upon to rule on the differences in treatment introduced by the decree of 6 October 1966, the content of which was essentially incorporated into Article R. 422-53 of the Environment Code, the Conseil d’Etat held in the Lamarque case that [while] such provisions:
“… have the effect of denying to members of associations holding hunting rights which are set up after the creation of the ACCA the right to withdraw their land from that ACCA’s hunting grounds and grant it only to landowners who acquire new land, they are not in breach of the wording of the Law of 10 July 1964, nor do they create unlawful discrimination between holders of hunting rights and landowners who are in different legal and factual situations” Conseil d’État, Lamarque, cited above).
47. By a decision of 7 October 1983 (Association Les propriétaires réunis du Murier, no. 36664), the Conseil d’État specified that the right to withdraw was also not open to a landowners’ association which had existed on the date on which the ACCA was created but which, on that date, was not entitled to object because it did not meet the minimum area requirement.
3. The development in administrative case-law on withdrawal from an ACCA brought about by the Conseil d’État’s decision of 5 October 2018
48. In 2018, further to a request from an association of landowning hunters (Association Saint-Hubert) who had been unable to withdraw their pooled land from the hunting grounds of an ACCA, the Conseil d’État decided to revisit its previous case-law. In a decision of 5 October 2018 (no. 407715), it held that the general-interest ground behind the establishment of the ACCAs could not justify a difference in treatment, which it considered manifestly disproportionate, between, on the one hand, individual owners who were entitled to exercise the right to withdraw their land from the ACCA where they acquired supplementary land enabling them to attain the minimum area threshold, and, on the other, owners of land or hunting rights who reached this minimum threshold by pooling their land with a view to exercising their hunting rights together. After annulling the refusal to revoke the provision, the Conseil d’État asked the Prime Minister to amend Article R. 422-53 of the Environment Code within nine months, so as to ensure its conformity with Article L. 422-18 of that Code, as worded at the relevant time.
The relevant passages of the Conseil d’État’s decision read as follows:
“With regard to withdrawal from an approved municipal hunters’ association:
…
5. … The principle of equality does not prevent the regulatory authority from laying down different rules for different situations or from derogating from equality for general-interest reasons, provided that, in both cases, the resulting difference in treatment is not manifestly disproportionate having regard to the grounds capable of justifying it.
6. Under the terms of Article R. 422-53(1) of the Environment Code: ‘Where an owner of land acquires further pieces of contiguous land forming with the first piece of land a single block larger than the minimum laid down in the [given] municipality to permit the right to object, he or she shall be entitled to request that the property thus formed be removed from the ACCA’s hunting grounds. …’ It follows from these provisions that while the regulatory authority has defined the conditions under which individual owners may benefit from the right to withdraw their land from the hunting grounds of the ACCA when they acquire additional plots of land enabling them to meet the minimum area requirement, it has not, however, specified the conditions under which the same right of withdrawal can be exercised, as nonetheless permitted by Article L. 422-18 of the same Code, by landowners who, after the ACCA has been created, band together to create a group of plots with a total surface area greater than the minimum threshold, with a view to exercising their hunting rights in common. In failing to do so, it ruled out the possibility for this latter group to request such withdrawal.
7. The system of approved hunters’ associations corresponds to a general-interest ground, intended to prevent the unregulated exercise of hunting and promote rational use of game stocks, particularly by encouraging the practice of hunting across sufficiently large hunting grounds. This ground justifies the provisions of Article R. 422-55 of the Environment Code, which provides for the automatic re-inclusion in the territory of the ACCA of any hunting grounds with regard to which an objection has been filed in application of Article L. 422-10 (3), which, for whatever reason and under whatever conditions, has been divided up. While, in complement to the provisions of this Article, the same general-interest ground may also justify a decision by the regulatory authority to attach certain conditions to the withdrawal from an ACCA of hunting grounds formed by a landowners’ association so as to guarantee the stability of those grounds after it leaves the ACCA, it cannot, however, lead to the introduction of the clearly disproportionate difference in treatment consisting in reserving, as a matter of principle, the right to apply for withdrawal of their land from the territory of an already existing ACCA solely to private individuals who own hunting grounds exceeding the minimum threshold, and in excluding owners who attain that minimum threshold by pooling their land together so as to exercise their hunting rights. Accordingly, the provisions of Article R. 422-53 of the Environment Code infringe, to this extent, the principle of equality.”
49. In his submissions to the bench of the Conseil d’État examining the case of Association Saint-Hubert, the public rapporteur relied, inter alia, on a comparative-law report concerning the legislation and practice in other European countries:
“… the countries neighbouring France which have introduced a system similar to that of the ACCAs have made no distinction between individual landowners and landowners grouped together through a hunters’ association or society. This essentially concerns countries governed by German law. Thus, the Federal Hunting Act (Bundesjagdgesetz – BJagdG) allows for private hunts provided that they have at least 75 hectares available, which may be owned by the same person or by a corporate body. All other hunting grounds are integrated into a common hunting reserve, a relative of our ACCAs. Withdrawal of land is also possible both for a landowner and for a group of landowners, provided that they attain the surface area of 75 hectares, a threshold which may vary according to the Land. Similarly, in Austria, in each of the five Länder which have introduced compulsory hunting associations, this being a matter for the Länder, both landowners and groups of landowners may withdraw their land…
8. This comparative-law material also supports our view … that authorising the creation, under certain conditions, of hunting associations in municipalities where there is an ACCA would not lead to the latter’s disintegration. The reasons of expediency put forward by the Government Commissioner in 1978 are no longer as relevant today: with higher thresholds, at least for new hunts, these neighbouring countries have succeeded in minimising the infringement of property rights while avoiding excessive fragmentation of hunting grounds…”
4. The legislative and regulatory amendments since 2019 to the right to object to compulsory transfer of hunting rights
50. It was following the Conseil d’État’s judgment of 5 October 2018 that the French Parliament enacted Law no. 2019-773 of 24 July 2019 establishing the French Agency for Biodiversity, altering the missions of the hunters’ federations and strengthening the environmental protection police (hereafter, “the Law of 24 July 2019”), after substantive debates held in both chambers of the French Parliament. The explanatory memorandum for the Law states as follows:
“The findings made during the preparation of the Law of 8 August 2016 on the restoration of biodiversity, nature and landscape remain largely valid today: the extremely worrying erosion of biodiversity has been scientifically established. It is explained by the continued strong pressure on natural environments: climate change, pollution, the degradation and fragmentation of natural habitats, invasive alien species, over-exploitation of resources and trafficking in protected species.
Thus, the protection and restoration of water resources and biodiversity, across all environments, is a major challenge for society and the Government. The launch of the Biodiversity Plan on 4 July 2018 illustrates, through the range of actions to be undertaken and of the actors involved, the path that lies ahead in addressing all of these findings.
Corrective tools have been identified: the aim is to place environmental policy issues at a territorial level, with a view to tackling the diffuse sources of pressure on ecosystems and refocusing actions on preventive rather than restorative approaches. Thus, the State’s presence in the countryside appears more vital every day, in order to ensure a balanced sharing of uses and natural areas, compliance with the environmental protection rules and the preservation of a quality environment. …
The Government has therefore decided to set up a new public administrative body, regrouping the tasks of the French Agency for Biodiversity and of the National Hunting and Wildlife Council (Office national de la chasse et la faune sauvage) (“the AFB-ONCFS”), which will be fully capable of supporting it in implementing the Biodiversity Plan. …
This new body will be formed around five ‘core’ missions: environmental and health policing; knowledge, research and expertise on species and environments; support for the implementation of water and biodiversity policies; management of natural areas and related management support; and, lastly, the mobilisation of civil society and stakeholders. These five missions will be carried out at all territorial levels. …
The AFB-ONCFS will also be entrusted, on behalf of the State, with issuing hunting licences, a task previously entrusted to the ONCFS. …”
51. During the legislative process preceding this Law’s enactment, the National Assembly accepted a proposed amendment to Article L. 422-18 of the Environment Code. The reasoning for this proposed amendment read as follows:
“The Conseil d’État’s judgment of 5 October 2018 will have a considerable impact on the 10,100 approved [municipal] hunters’ associations (ACCAs) and inter-municipality hunters’ associations (AICAs) in France.
That judgment calls for an amendment to the regulatory section of the Environment Code so that landowning hunters can pool their land after a five-year period in order to be able to withdraw from an ACCA. The Conseil d’État has reversed its own case-law of 7 July 1978, for reasons which remain incomprehensible, and which jeopardise the future of the ACCAs. Indeed, there is a genuine risk that the ACCAs will be dismantled on the pretext of widening the conditions for objecting to them.
In consequence, the legislature must be given its say, in order to prevent the creation of fictive landowners’ associations, a guaranteed precursor to the ACCAs’ ruin and the mismanagement of hunting and wildlife reserves.”
52. The Law of 24 July 2019, through its section 13(1-16), supplements Article L. 422-18 of the Environment Code with a paragraph worded as follows:
“The right to object mentioned in the first paragraph of the present Article shall be reserved to landowners and to associations of landowners having a recognised existence on the date that the [approved municipal hunters’ association] was set up”.
53. For the purpose of implementing this Law, Decree no. 2019-1432 of 23 December 2019 was adopted; it amends certain regulatory provisions of the Environment Code. Article R. 422-53 of the Code was not amended.
54. In its new wording, Article L. 422-18 of the Environment Code states that landowners’ associations which were formed after the establishment of the corresponding ACCA and whose pooled land attains the minimum threshold provided for in the legislation are not entitled to withdraw from an ACCA, while granting this right to landowners and to existing landowners’ associations whose land attains that threshold.
55. It is within this context that the applicant federation challenged the compatibility with the Convention of the regulatory framework governing the ACCAs, as amended in 2019; this in turn has given rise to the Conseil d’État’s decision to request the present advisory opinion from the Court.
THE COURT’S OPINION
I. PRELIMINARY CONSIDERATIONS
56. The Court notes at the outset that the question put to it in the operative provisions of the Conseil d’État’s decision of 15 April 2021 concerns, in a general manner, the criteria enabling the requesting court to assess whether or not the difference in treatment authorised by Article L. 422-18 of the Environment Code as currently worded is compatible with Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (see paragraph 9 above).
57. The Court points out that the requesting court will have to examine two preliminary questions before replying, on the basis of the criteria which it has invited the Court to provide, to the question whether or not the difference in treatment established by Article L. 422-18 of the Environment Code, as currently worded, is compatible with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The first question is whether the difference in treatment introduced by the Law between various legal entities, a difference based on the date on which they were formed in relation to the date of creation of the ACCA, can be considered to fall within the scope of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. In the event of a positive response, the second preliminary question which arises relates to the criteria enabling the requesting court to determine whether the difference in treatment in the proceedings pending before it concerns persons in analogous or relatively similar situations, for the purposes of Article 14 taken together with Article 1 of Protocol No. 1. Having regard to the need for a sincere and loyal dialogue between international and national courts and to the utility that this opinion is intended to have (see point 11 of the Explanatory Report to Protocol No. 16), the Court will first offer guidance on these two questions. It will then consider the relevant criteria for assessing the justification of the difference in treatment at issue.
58. In formulating its opinion, the Court will have due regard to the written observations and documents produced by the various participants in the proceedings (see paragraphs 4-5 above). However, its task is not to reply to all the grounds and arguments submitted to it or to set out in detail the basis for its reply; under Protocol No. 16, the Court’s role is not to rule in adversarial proceedings on contentious applications by means of a binding judgment but rather, within as short a time frame as possible, to provide the requesting court or tribunal with guidance enabling it to ensure respect for Convention rights when determining the case before it (see Advisory Opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law (Request no. P16-2019-001, Armenian Constitutional Court, § 51, 29 May 2020)).
1. Whether the difference in treatment in question falls within the scope of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
59. The Court has already accepted that, like a physical person, a legal entity can rely on the protection offered by Article 14, taken together with one or other of the provision of the Convention or the Additional Protocols thereto (see, among other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 166 et seq., 29 November 2016; Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, §§ 86-88, ECHR 2000‑VII; and Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2), no. 26740/02, §§ 49-50, 31 May 2007).
60. The Court has not yet been required to rule on whether or not differences in treatment such as that examined in the present case, which are based on a temporal criterion, are covered by the expression “other status” contained in Article 14 of the Convention. In this connection, however, it points out that it has held that differences in treatment, although unrelated to “personal characteristics” (understood as characteristics which are personal in that they are innate or inherent, see Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010), could be covered by the concept of “other status” and thus fall within the scope of Article 14 (see, among other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 134, 19 December 2018).
61. The Court further notes that the temporal criterion underlying the difference in treatment complained of in the proceedings before the Conseil d’État refers, indirectly, to the criterion of the size of the landholding, in other words on that of immovable “property”, which, for its part, is a ground of discrimination expressly prohibited by Article 14 of the Convention. Had the landowners who formed associations after the creation of the ACCA disposed, individually, of land of a sufficient area to be able to object to the initial compulsory transfer of their hunting rights when the АССА was created, they would not subsequently have been obliged to form associations in order to become eligible for the right to withdraw. Indeed, in its previous judgments in Chabauty v. France ([GC], no. 57412/08, § 27, 4 October 2012) and Chassagnou and Others v. France ([GC], nos. 25088/94 and 2 others, §§ 95-98, ECHR 1999‑III), the Court held that Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, is applicable to differences in treatment based on that ground.
62. In consequence, a difference in treatment based on the date of creation of a legal entity (whether earlier or subsequent to an ACCA) – such as that examined in the present case – cannot a priori be excluded from the scope of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
2. The criteria for determining whether the difference in treatment concerns persons in analogous or relatively similar situations
63. As the Conseil d’État expressly stated in point 13 of its decision (see paragraph 10 above), Article 422-18 of the Environment Code, as worded following the Law of 24 July 2019, distinguishes between two categories of persons. The first category is made up of those property owners and associations of landowners who formed an association before the date of creation of the ACCA and who own land attaining the minimum area required to enable them to oppose its transfer to the ACCA or to request its withdrawal, including where that condition was satisfied after the ACCA had been created. The second category includes landowners’ associations formed after the date on which the ACCA was created, who are denied the right to withdraw from it, despite owning plots of land with a total combined area which meets the condition laid down in Article L. 422-13 of the Environment Code.
64. In order for an issue to arise under Article 14 of the Convention, there must be a difference in treatment of persons in analogous or relevantly similar situations (see, among many other authorities, Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017; Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, 24 January 2017; and Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts)). The national authorities, and particularly the domestic courts, are in principle best placed to assess, on the basis of the information provided by the appellant and other evidence submitted by the parties in the context of adversarial proceedings in the case, whether or not several persons or several categories of persons are in such situations.
65. In the domestic proceedings which gave rise to the present request for an advisory opinion, the Court notes that no adversarial debate on this point, which is nonetheless fundamental, appears to have occurred to date. The appellant did not substantiate before the Conseil d’État the reasons for which it considers that the alleged difference in treatment concerned analogous or relevantly similar situations. Accordingly, the Court considers it appropriate to note the relevant elements set out below with a view to the Conseil d’État’s examination of this question.
66. In this connection, it does not appear unreasonable for a national court to require the person alleging that he or she has been subjected to discriminatory treatment contrary to Article 14 to demonstrate that, having regard to the particular nature of his or her complaint (see Fábián, cited above, § 113), he or she was in an analogous or relevantly similar situation to other persons who had been treated more favourably. It is for this person to gather, in so far as possible, appropriate information concerning both his or her personal situation and the legal regime applicable to that situation (see Fábián, § 113, and Clift, § 66, both cited above; see also Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007‑IV). The factual and legal elements thus obtained must then make it possible for the domestic court in question to assess whether the situations referred to are analogous or relevantly similar.
67. These elements must be assessed in the light of the subject matter and purpose of the measure which makes the distinction in question and the context in which this measure is imposed (see Fábián, cited above, § 121).
68. Moreover, and as evidenced by the Court’s long-standing practice, this assessment must be based on elements of an objective nature (see, for example, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 86-90, ECHR 2010; Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008; Frantzeskaki and Others v. Greece (dec.), no. 57275/17, 12 February 2019; and Panfile v. Romania (dec.), no. 13902/11, 20 March 2012), which excludes from their scope factors that are not objectively verifiable, such as presumed intentions, untested fears or mere suppositions (see, in particular, Konstantin Markin, cited above, §§ 114-116 and 133, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 52, 25 July 2017).
69. In assessing the comparability of situations, it is appropriate to consider them in their totality and to avoid singling out marginal aspects, which would lead to an artificial analysis (see Van der Mussele v. Belgium, § 46, 23 November 1983, Series A no. 70; to the same effect, see also Allesch and Others v. Austria, no. 18168/91, Commission decision of 1 December 1993, and Liebscher and Others v. Austria, no. 25170/94, Commission decision of 12 April 1996).
70. Given that the existence of an “analogous situation” does not require that the comparator groups be identical, it is appropriate to establish whether the two categories identified in point 13 of the Conseil d’État’s decision (see paragraph 10 above), although in apparently different situations, do not, with regard to the complaint made by the applicant federation, bear similarities which would outweigh their differences, such as, for example, the fact that the landowners who constitute their membership and are themselves hunters pool their landholdings for the benefit of an association (an ACCA or a landowners’ association), thus enabling the other members of that association to hunt on their land.
71. Lastly, concerning the weight to be attached in this context to the aim pursued by the legislature when it enacted a measure giving rise to a difference in treatment, the Court considers that if the criterion of differentiation chosen were in itself to be sufficient to prevent a finding of relevant similarities or analogies between the situations being compared under Article 14 of the Convention, this could deprive that provision of its substance, in that it would then suffice for a State to adopt laws or measures placing the two elements to be compared in different situations with regard to the aim pursued in order to preclude any scrutiny of whether these situations were compatible with the Convention. Nonetheless, the legislature’s aim remains fully pertinent at the stage of analysing whether there is a “legitimate and reasonable” justification for the difference in treatment (see, mutatis mutandis, Khamtokhu and Aksenchik, cited above, §§ 67-68; see also Naidin v. Romania, no. 38162/07, §§ 47-51, 21 October 2014; Özgürlük ve Dayanışma Partisi (ÖDP) v. Turkey, nos. 7819/03, §§ 37‑42, ECHR 2012; Maggio and Others v. Italy, nos. 46286/09 and 4 others, §§ 73-74, 31 May 2011; and Grande Oriente d’Italia di Palazzo Giustiniani, cited above, §§ 51-56).
II. THE RELEVANT CRITERIA WITH REGARD TO THE JUSTIFICATION FOR THE DIFFERENCE IN TREATMENT AT ISSUE
72. The Court reiterates that, even when they concern persons or categories of persons in analogous, or relevantly similar, situations, differences in treatment are not all discriminatory, and, in consequence, are not all necessarily contrary to Article 14 of the Convention. Only differences in treatment which do not have an “objective and reasonable justification” are discriminatory (see, among other authorities, Molla Sali, cited above, § 135, and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts)). Thus, a difference of treatment “lacks objective and reasonable justification” if it does not pursue a “legitimate aim” and/or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Molla Sali, § 135, and Fabris, § 56, both cited above).
1. Whether one or more “legitimate aims” were pursued
73. As the Government noted in their observations before the Court (see paragraph 5 above), in enacting the Law of 24 July 2019 the legislature indicated that, in its view, the factual circumstances which had given rise to the restrictions on the right of withdrawal from ACCAs introduced by the Loi Verdeille had not substantially changed, with the result that it was still necessary to prevent small landowners forming associations, after the creation of an ACCA in their municipality, with a view to circumventing the initial compulsory transfer of hunting rights.
74. In their opinion, such an intention on the legislature’s part was clear from the parliamentary proceedings on section 13(1-16) of that Law, which were introduced by parliamentary amendment in the National Assembly. This amendment was expressly intended to reduce the risk of “a genuine fragmentation of the ACCAs”, to prevent “the creation of fictive associations of landowners”, set up for the purpose of withdrawing from the relevant ACCA (see paragraph 51 above), and thus to guarantee the stability over time of the territories of local hunting associations.
75. In the Government’s view, it was clear from the parliamentary proceedings that Article 422-18 of the Environment Code, as worded following the Law of 24 July 2019, was directly related to the public-interest aim which consisted in encouraging hunting across sufficiently large territories. They submitted that the restrictions on the right to withdraw from ACCAs, imposed on the more recently formed landowners’ associations, arose, firstly, from the legislature’s wish to avoid an excessive increase in such withdrawals, which was likely to endanger the functioning of the ACCAs themselves. Secondly, these regulations were based on the premise that the number of more recently formed landowners’ associations was likely to increase in order to thwart the legislature’s wish to maintain the perennity of the current ACCAs.
76. The Court further notes that according to the explanatory memorandum of the Law (see paragraph 50 above), the legislature was seeking to strengthen implementation of the Government’s “Biodiversity Plan”, to ensure increased activity by the environmental police in rural areas and to improve the balance between prevention and supervision in those areas, through the setting up of a new public body which would be entrusted, on behalf of the State, with responsibility for issuing hunting licences.
77. More generally, the Court notes that the ACCA arrangement introduced many years ago by the legislature pursued the aim of conserving natural habitats, wild fauna and flora, by seeking to strike a balance between hunting, agriculture and forestry with a view to ensuring harmony between, on the one hand, the sustainable presence of a rich and varied wildlife and, on the other, the perennity and economic viability of agricultural and forestry activities (Article L-422-2 of the Environment Code). Under Article L-425.4 of the Environment Code, this balance is deemed to be ensured by a combination of various methods, such as hunting, regulation, the prevention of game damage through protective and dissuasive measures and, where appropriate, through authorised culls (see paragraph 28 above).
78. It is in the light of all these elements of national law that it is appropriate to identify the aims, pursued by the contested difference in treatment, which may be regarded as “legitimate” under Article 14, bearing in mind that, unlike Articles 8 to 11 of the Convention, Article 14 does not contain an exhaustive list of aims to be recognised as “legitimate”. The Court now considers it appropriate to note the following relevant points in examining this question.
79. In accordance with the Court’s established case-law, the notion of “general interest” within the meaning of the second paragraph of Article 1 of Protocol No. 1, under which the contested difference in treatment ought to be examined in conjunction with Article 14 of the Convention (see paragraph 88 below), is necessarily extensive (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 106, 25 October 2012; R.Sz. v. Hungary, no. 41838/11, § 44, 2 July 2013; and Grudić v. Serbia, no. 31925/08, § 75, 17 April 2012).
80. The right to hunt on one’s own land, or on the land of others, is not as such protected by any provision of the Convention or the Additional Protocols thereto. In contrast, environmental protection, in the wide sense, and, in this context, the more specific protection of the countryside and forests, endangered species, biological resources, heritage or public health, are, for their part, included among the aims considered to date as relating to the “general interest” for the purposes of the Convention (see, among other authorities, Yașar v. Romania, no. 64863/13, § 59, 26 November 2019; O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, § 109, 7 June 2018; Kristiana Ltd. v. Lithuania, no. 36184/13, §§ 104-105, 6 February 2018; Matczyński v. Poland, no. 32794/07, §§ 104-106, 15 December 2015; Lazaridi v. Greece, no. 31282/04, § 34, 13 July 2006; and Ansay and Others v. Turkey (dec.), no. 49908/99, 2 March 2006). The Court has had occasion to emphasise that, while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such (see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003‑VI), the responsibility of the public authorities in this area should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective (see Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007-V (extracts); see also S.C. Fiercolect Impex S.R.L. v. Romania, no. 26429/07, § 65, 13 December 2016; Nane and Others v. Turkey, no. 41192/04, § 24, 24 November 2009; and Bahia Nova S.A. v. Spain (dec.), no. 50924/99, 12 December 2000).
81. More comparably to the present opinion, the Court reiterates that in the Chassagnou and Others judgment (cited above, § 92), it confirmed, with regard to the necessity, relied on by the Government, of regrouping hunting grounds within the ACCAs, that “it [was] undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks” (ibid., § 79). It reaffirmed this assessment in the Chabauty judgment (cited above, § 54), stating that “there are understandable reasons for pooling the smallest hunting areas in order to create larger hunting grounds governed by common game stock management rules, as this contributes to managing the pressure on game stocks and organising hunting in a sustainable manner”. In the decision in Baudinière and Vauzelle v. France ((dec.), nos. 25708/03 and 25719/03, 6 December 2007), the Court stated that “[i]n thus seeking to control the impact of hunting on the ecological balance, the [French legislation] is aimed at the protection of the natural environment, an aim which, as the Court has held on numerous occasions, is indisputably in the general interest”.
82. In the case of A.S.P.A.S. and Lasgrezas v. France (no. 29953/08, § 39, 22 September 2011), the Court concluded that it “share[d] the Government’s analysis when they argued that too short a period [before being able to exercise the right to withdraw land from the ACCA’s hunting grounds], could jeopardise the action of the ACCAs … responsible for managing increases in game stocks and wildlife and for ensuring sound technical organisation of hunting”. In the Court’s view, in order to be effective, the ACCAs’ missions “require a certain foreseeability over time of the territory of the hunting grounds” and “excessively frequent changes to the perimeter of that territory, as and when landowners objected, could have detrimental consequences for the safety of hunters and third parties” (ibid., § 39).
83. Assuming that the requesting court were to consider, in the light of the foregoing, that the arrangements for withdrawal from the ACCAs introduced through the legislative provision enacted in 2019 which has given rise to the contested difference in treatment do pursue one or more “legitimate” aims, it would have to be determined if the means used by the authorities to achieve them are consistent with these aims, so that there exists a reasonable relationship of proportionality between them.
2. Whether there is a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”
84. As the Court has held on many occasions, through their democratic legitimation the national authorities are in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018). As required by the principle of subsidiarity, it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law in a manner that gives full effect to the Convention. The Court deems it useful to reiterate, in the context of a request for an advisory opinion under Protocol No. 16, that if the domestic courts respect the principles and criteria laid down by the Court’s case-law, carefully examine the facts and apply the relevant human-rights standards consistently with the Convention and its case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, mutatis mutandis, M.A. v. Denmark [GC], no. 6697/18, § 149, 9 July 2021).
85. Without prejudice to the outcome of the discussions before the Conseil d’État, on whether, in enacting the Law of 24 July 2019, the means employed by the legislature were proportionate to the general-interest aims pursued by the law, the Court will set out below the criteria which it considers relevant in this area.
– compliance with the requirement of lawfulness enshrined in Article 1 of Protocol No. 1
86. The Court reiterates that any interference with the rights protected by Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, must meet the requirement of lawfulness (see, among other authorities, Vistiņš and Perepjolkins, cited above, § 95). This requirement presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, among other authorities, Lekić, cited above, § 95, and Vistiņš and Perepjolkins, cited above, §§ 96-97). It is accordingly for the Conseil d’État to assess, in the first place, whether section 13(1-16) of the Law of 24 July 2019 (see paragraph 52 above) constitutes, through its accessibility, clarity and the foreseeability of its effects, a basis capable of satisfying the requirement of lawfulness inherent throughout Article 1 of Protocol No. 1 as a whole.
87. A separate, albeit closely related, question concerns the effects of the Law of 24 July 2019 on the judicial proceedings pending before the requesting court, and relates, in particular, to whether or not that Law may constitute unjustified interference by the legislature in the administration of justice, with the aim of influencing the judicial determination of the ongoing dispute. In this connection, the Court notes that, in its observations before the Conseil d’État, the applicant federation alleged that the decision issued by the latter court in 2018 in a previous case brought by the Association Saint-Hubert (see paragraph 48 above), a decision which had been favourable to its own interests, had remained without effect: the regulatory authority, called upon by the Conseil d’État to amend Article R. 422-53 of the Environment Code, had initially failed to comply with it, and Parliament subsequently frustrated its effects, by expressly inserting in the legislative part of the Environment Code another provision which rendered invalid the amendment to the regulatory part of the same Code requested by the Conseil d’État.
88. As the Court has had occasion to emphasise, the principle of lawfulness also entails, under Article 1 of Protocol No. 1, a duty on the part of the State or other public authority to comply with judicial orders or decisions against it (see Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, § 56, ECHR 2000-VI).
89. Under Article 6 of the Convention, the Court has repeatedly ruled in the context of civil disputes that although, in theory, the legislature is not precluded from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 of the Convention preclude any interference by the legislature – other than on compelling grounds of general interest – with the administration of justice designed to influence the judicial determination of a dispute (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 9 others, § 57, ECHR 1999-VII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006-V; and, more recently, Dimopulos v. Turkey, no. 37766/05, § 45, 2 April 2019; and Hussein and Others v. Belgium, no. 45187/12, § 60, 16 March 2021).
90. It should be noted that when the Law of 24 July entered into force, the judicial proceedings which have given rise to the present request for an advisory opinion had not yet begun (see paragraphs 14 and 50-52 above). The question which could therefore arise is whether the entry into force of the Law of 24 July 2019, assuming that it rendered ineffective a final judicial decision in a previous dispute in which the outcome had been favourable to the applicant federation’s interests (see paragraphs 48 and 87 above), breached the requirement of lawfulness enshrined in Article 1 of Protocol No. 1, and, more generally, the principle of the rule of law inherent in all of the articles of the Convention (see Lekić, cited above, § 94, and Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).
91. To date, the Court has not found a violation of any of the rights guaranteed by the Convention or the Additional Protocols thereto when it examined, for example, parliamentary legislative intervention affecting a future dispute which had not yet been submitted to the courts when the law in question was enacted (see Organisation nationale des syndicats d’infirmiers libéraux (O.N.S.I.L.) v. France (dec.), no. 39971/98, ECHR 2000-IX), or legislative intervention which “was made on clear and compelling public-interest grounds”, either to fill a legal vacuum (see OGIS-Institut Stanislas and Others v. France, nos. 42219/98 and 54563/00, 27 May 2004, § 72) or to establish and reaffirm its original intention (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, Reports of Judgments and Decisions 1997-VII, § 81).
92. Moreover, examined from the perspective of Article 1 of Protocol No. 1, laws with retrospective effect which were found to constitute legislative interference with the administration of justice still conformed with the lawfulness requirement of Article 1 of Protocol No. 1 (see Maggio, cited above, § 60; Arras and Others v. Italy, no. 17972/07, § 81, 14 February 2012; and Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, nos. 48357/07 and 3 others, § 104, 24 June 2014). Measures to control the use of property which have been implemented to regulate retrospectively rights arising from existing laws have been held by the Court to be compatible with the requirement of lawfulness set out in Article 1 of Protocol No. 1, provided that the enactment of the legislative amendment in question was not specifically aimed at influencing the outcome of the proceedings in a given case (see Saliba v. Malta, no. 4251/02, §§ 39-40, 8 November 2005).
– the criterion of “manifestly without reasonable foundation”
93. It must be noted that for those landowners who formed associations after the date on which the ACCA was created in their municipality, the Law of 24 July 2019 (section 13(1-16) of which is contested in the proceedings before the Conseil d’État), entails the impossibility of recovering the exclusive hunting rights over their land, which they had lost when the latter were transferred to the ACCAs, but their property rights are otherwise unaffected. As in previous cases concerning statutory mechanisms for the compulsory transfer of land to a hunting association and involving the obligation for landowners to tolerate hunting on their land, this legislation could be termed a means of controlling the use of property in accordance with the general interest (compare with Herrmann v. Germany [GC], no. 9300/07, § 73, 26 June 2012; Chassagnou and Others, cited above, § 74; and Schneider v. Luxembourg, no. 2113/04, § 44, 10 July 2007). It is in the light of the second paragraph of Article 1 of Protocol No. 1 that the resulting interference with the property rights of the landowners concerned (that is, those who formed an association after the date on which the ACCA was created in their municipality) could, accordingly, be analysed.
94. This provision of the Convention specifically recognises that States have the right to control the use of property in accordance with the general interest by enacting such “laws” as they deem necessary. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see, inter alia, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003‑VIII; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006‑VI; and Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 92, 25 October 2011). On this point, the Court has on many occasions declared that it will respect the legislature’s judgment as to what is in the “public” or “general” interest unless that judgment is manifestly without reasonable foundation (see, inter alia, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010; Stec, cited above, § 52; and, for a more recent example, J.D. and A v. the United Kingdom, nos. 2949/17 and 34614/17, § 87, 24 October 2019).
95. With the exception of a few cases in which the Court’s findings of a violation under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14, were based to a decisive degree on the fact that the applicants (who were opposed to hunting on ethical grounds) had been affected in matters of conscience by the obligation imposed on them to tolerate hunting on their land (see Chassagnou and Others, § 85; Herrmann, §§ 93-94; and Schneider, § 51, all cited above), the Court has generally found no violation of Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14, where it has been required to assess measures which amount to “control of the use of property” within the meaning of the second paragraph of Article 1 of Protocol No. 1. This has been the case in the areas of economic and social policy (see Fábián, cited above, § 84; Stec and Others, cited above, §§ 50-67; and Burden v. the United Kingdom [GC], no. 13378/05, §§ 58-66, ECHR 2008), urban planning and regional development (see Chapman v. the United Kingdom [GC], no. 27238/95, § 120, ECHR 2001-I; and Mellacher and Others v. Austria, § 55, 19 December 1989, series A no. 169), the protection of public health and food safety (see Chagnon and Fournier v. France, nos. 44174/06 and 44190/06, §§ 58-59, 15 July 2010, and S.A. Bio d’Ardennes v. Belgium, no. 44457/11, §§ 57-58, 12 November 2019) or environmental protection (see, inter alia, Depalle v. France [GC], no. 34044/02, §§ 92-93, ECHR 2010, and Hamer, cited above, §§ 88-89).
96. More comparably to the present opinion, the Court has considered, for example, that the legislature’s decision to make the hunting of wild mammals with hounds a criminal offence, notwithstanding a centuries-old tradition of hunting with dogs in rural communities, had to be respected, given that this decision was not manifestly arbitrary or unreasonable (see Friend and Others v. the United Kingdom (dec.), no. 16072/06 and 27809/08, 24 November 2009). In reaching that conclusion, the Court emphasised that the decision on whether or not it was in the public interest to ban hunting with dogs was pre-eminently one for the House of Commons to make, and it noted that extensive parliamentary and public debate had taken place on this matter. In the case of Alatulkkila and Others v. Finland (no. 33538/96, 28 July 2005), which concerned a statutory prohibition on all fishing of certain species of fish in river areas owned by the applicants, the Court held that it had not been unreasonable for the public authorities to distinguish between restrictions on the enjoyment of property which were linked to the livelihood of fishermen and those effects which were not so connected, such as loss of leisure or sporting possibilities (ibid., § 67).
97. In the specific context of the organisation and practice of hunting in France, the Court has already examined, under Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention, legislative measures entailing the loss of exclusive hunting rights affecting certain landowners as a result of the system introduced by the Loi Verdeille. In its view, obliging only small landowners to pool their hunting grounds with the aim of promoting better management of game stocks was not in itself disproportionate (see Chabauty, cited above, §§ 56-57). The Court held that the statutory provisions in question were “the expression of a legitimate institutional wish” to avoid the multiplication of hunting entities and to supervise strictly a leisure activity which could pose a danger to property and people and had a significant environmental impact (see Baudinière and Vauzelle v. France ((dec.), nos. 25708/03 and 25719/03, 6 December 2007). It found “nothing unreasonable” in the Government’s assertion that the multiplication of such entities was likely to increase the risk of accidents inherent in this activity and concluded that the authorities could legitimately deem it necessary to place, in so far as possible, the organisation of hunting in the regulated framework of the existing ACCAs (ibid.).
– the nature of the criterion for the distinction established by law and its impact on the margin of appreciation enjoyed by the national authorities
98. The scope of the national authorities’ margin of appreciation is a decisive element when assessing whether there was “a reasonable relationship of proportionality between the means employed and the aim sought to be realised”. It will vary according to the circumstances, the subject matter and the background (see, among many other authorities, Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011), but also, with regard to complaints under Article 14 taken in conjunction with Article 1 of Protocol No. 1, according to the nature of the status upon which the differential treatment established by law is based (see, inter alia, Molla Sali, § 134, and Fabris, §§ 56-59, both cited above). In the factual context of the present request for an advisory opinion, the national authorities’ margin of appreciation is wide, for two main reasons.
99. The first, as the Court has stated above, relates to the subject matter and the background to the measure introducing the difference in treatment in question (see paragraphs 93-97 above). In this connection, it must be noted that the Convention does not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva v. Latvia [GC], no. 55707/00, § 83, ECHR 2009, and Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006-IV).
100. The second reason which, in the factual context of the present request for an advisory opinion, justifies granting a wide margin of appreciation to the national authorities relates to the nature of the ground underpinning the difference in treatment being challenged in the proceedings before the Conseil d’État. This difference in treatment is based on a temporal criterion provided for by the legislature in section 13(1-16) of the Law of 24 July 2019, namely the date on which a landowners’ association was formed, before or after the ACCA. As the Court has already pointed out (see paragraph 61 above), this criterion, which does not feature among the characteristics protected by Article 14 of the Convention, refers, indirectly, to the criterion of the size of the plot of land, in other words to that of immovable “property”. In the Chabauty case, however, the Court already held that the very nature of this property justified a considerably wider margin of appreciation than if the distinction in question resulted from a ground regarded by the Court as unacceptable as a matter of principle, such as racial or ethnic origin, or as unacceptable in the absence of very weighty reasons, such as gender or sexual orientation (ibid., § 50).
– the choice of the means employed to achieve the aim(s) sought and the appropriateness of the means used in relation to the aim(s) sought to be pursued
101. The question of whether or not the temporal criterion adopted by the legislature in section 13(1-16) of the Law of 24 July 2019, namely “the date on which a landowners’ association was set up” corresponds to the general-interest aim(s) pursued by the law is an essential element in the proportionality analysis.
102. In this connection, the Court has had occasion to stress that measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals (see J.D. and A. v. the United Kingdom, § 81, and Maggio and Others, §§ 73-74, both cited above). This is clear in particular from its findings in the above-cited case of Maggio and Others, which also concerned a difference in treatment between different categories of persons, arising from the introduction of a cut-off date adopted by the legislature to identify the rights applicable to specific categories of insured persons. The Court emphasised that, although such temporal restrictions may to a certain extent appear arbitrary for the individuals affected, the differences in treatment to which they give rise are an inevitable consequence of introducing new regulations to replace previous schemes. It considered that the creation of a new pension scheme sometimes necessitated the introduction of cut-off points which apply to large groups of people. In the Court’s opinion, such cut-off dates were not in themselves incompatible with Article 14 of the Convention taken together with Article 1 of Protocol No. 1 and it was for the State to show that they were reasonably and objectively justified (see also Twizell and Others v. the United Kingdom, no. 25379/02, §§ 24 et seq., 20 May 2008).
103. The Court notes, in the light of the observations of the parties and of the Government (see paragraphs 4 and 5 above), that under French law the creation of an association on the basis of the Law of 1 July 1901 is a rapid and relatively inexpensive matter, which renders plausible the risk referred to by the Government that, following the development in the Conseil d’État’s case-law (see paragraph 48 above), a multiplicity of associative structures bringing together small landowners could have been formed with the primary aim of enabling their members to withdraw their land from the existing ACCAs. Were that the case, the temporal distinction adopted by the legislature between the different landowners’ associations depending on the date of their creation could be considered as corresponding to the legislature’s wish to preserve the existing ACCAs.
104. The question of whether alternative measures, less severe in their consequences for landowners who were subject to the compulsory transfer of hunting rights, could reasonably have been implemented in pursuit of the public-interest aim sought, can also be taken into account in the analysis of proportionality. On this point, the Court notes, in the parties’ observations before the Conseil d’État and before the Court (see paragraphs 4, 5 and 15 above), that other means could have been envisaged by the authorities for the purpose of attaining the public-interest aim in question, such as by raising the threshold from which an individual or a group could withdraw from an existing ACCA, or ensuring a fairer distribution, among all landowners irrespective of the size of their plot, of the burden of ensuring that a certain hunting territory was available to hunters through the ACCAs (see paragraphs 4 and 48 above).
105. In any event, as the Court has had occasion to reiterate, the possible existence of alternative solutions does not in itself render the means employed by the national legislature unjustified. Provided that it remains within the bounds of its margin of appreciation, and therefore that the measures chosen correspond to the legitimate aims pursued by the law, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way (see James and Others, cited above, § 51; J.A. Pye (Oxford) Ltd v. the United Kingdom, no. 44302/02, § 45, 15 November 2005; and Koufaki and Adedy v. Greece (dec.), § 48).
– the impact of the means employed
106. In the context of the proportionality analysis, the question arises whether the effects of the temporal distinction introduced by the legislature in 2019 between the different landowners’ associations imposed on those which were set up after the ACCA an individual and excessive burden (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Béláné Nagy v. Hungary [GC], no. 53080/13, § 115, 13 December 2016). One element to be taken into account by the requesting court when examining this question is whether the effects of the measure at issue can be counterbalanced or at least mitigated by certain rights or advantages reserved for the members of associations formed after the corresponding ACCA, for example, as argued by the Government (see paragraph 5 above), the fact that they continue to benefit from the advantages of their continued membership of the ACCA system, even if they are not entitled to withdraw from it.
107. In this connection, the Court points out that in the Chabauty case (cited above, § 55), it found that there had been no violation of Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, after noting the existence of certain rights and advantages for small landowners whose land had been included, against their wishes, in the hunting grounds of the ACCA to which they were affiliated. As consideration for the transfer of their hunting rights to the ACCA, these landowners, who were at a disadvantage compared to the owners of larger plots (who were not obliged to transfer their hunting rights) obtained automatic membership of the relevant ACCA, which allowed them not only to hunt on the whole of the association’s hunting grounds but also to benefit from other advantages of membership, such as assistance with the destruction of vermin and control of species likely to cause damage, matters which fell within the remit of the ACCA across the whole of the pooled hunting grounds (ibid., § 55). These arguments could continue to be relevant in assessing the proportionality of the difference in treatment introduced in 2019 by the legislature between different associations of landowners.
108. The issue of whether a measure which restricts the use of property also entailed the – permanent or temporary – loss of a possible “tool of one’s trade” from which the owner concerned derived his or her livelihood could be taken into account when deciding whether the fair balance required by Article 1 of Protocol No. 1 has been upset (see, inter alia, Alatulkkila and Others, cited above, § 67, and, mutatis mutandis, Petyo Petkov v. Bulgaria, no. 32130/03, §§ 102-104, 7 January 2010). In such circumstances, in the absence of sufficient compensation to cover the loss of the “tool of one’s trade” in question or to enable it to be recreated following interference amounting to a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1, the Court has frequently held that the owner affected by the impugned measure had borne “an individual and excessive burden”, contrary to Article 1 of Protocol No. 1 (see Valle Pierimpiè Società Agricola S.P.A. v. Italy, no. 46154/11, § 63, 23 September 2014; Di Marco v. Italy, no. 32521/05, §§ 65-67, 26 April 2011; Petyo Petkov, cited above, §§ 109-110; and Lallement v. France, no. 46044/99, §§ 23-24, 11 April 2002).
109. In contrast, with regard to measures related to “control of the use of property”, under the second paragraph of Article 1 of Protocol No. 1, a lack of legislative provisions for compensation to make good the losses caused to the owners concerned or individual decisions refusing to compensate them for part of the losses sustained have not prevented the Court from concluding that the fair balance required by Article 1 of Protocol No. 1 was not upset (see, inter alia, the decision in Friend and Others, cited above, on the absence of legislative provisions granting compensation for losses caused by legislative bans on the use of dogs in hunting wild mammals; the S.A. Bio d’Ardennes judgment, cited above, §§ 47-49 and 51, concerning a refusal to pay compensation following a decision to slaughter a large number of cattle infected with brucellosis; and the Alatulkkila and Others judgment, cited above, § 67, in which the inconvenience arising from the loss of sporting and leisure activities following a statutory prohibition on all fishing of certain species of fish in specified water areas did not create entitlement to any compensation, unlike the restrictions on the enjoyment of their possessions affecting the livelihood of professional fishermen, where an entitlement to compensation did exist).
110. Under this provision of Protocol No. 1 to the Convention, the national authorities enjoy a wide margin of appreciation, not only in determining the measure of control that should be imposed to meet a public-interest imperative but also in selecting, among the different types of loss that such a measure may entail, those which may give rise to an entitlement to compensation (see Alatulkkila and Others, cited above, § 67; see also, mutatis mutandis, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 79, ECHR 2007‑III, and Friend and Others, decision cited above, § 57).
3. Conclusion
111. It is, inter alia, in the light of these elements that the Conseil d’État will have to determine whether or not the difference in treatment introduced by the legislative provision being challenged in the proceedings before it satisfies the requirement of proportionality and, accordingly, whether or not this difference in treatment can be considered compatible with Article 14 taken in conjunction with Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Delivers the following opinion:
1. With regard to the difference in treatment which arises from Article L. 422-18 (3) of the Environment Code between associations “having a recognised existence on the date of the creation of the ACCA” and associations formed after that date, it is primarily for the requesting court to assess whether such a difference in treatment can fall within the scope of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and, if so, whether it concerns persons in analogous or relevantly similar situations, for the purposes of Article 14 taken in conjunction with Article 1 of Protocol No. 1;
2. If the reply to each of these preliminary questions is in the affirmative, it is for the requesting court, in order to determine whether the difference in treatment at issue is “legitimate and reasonable” and, accordingly, compatible with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, to ensure: firstly, that in making a distinction between the categories of owners of land or hunting rights on the basis of the date on which their association was set up, the legislature was pursuing one or more “legitimate aims”; secondly, that the law satisfies the requirement of lawfulness enshrined in Article 1 of Protocol No. 1; and, thirdly, that there is a “reasonable relationship of proportionality” between the means employed and the legitimate aim(s) sought to be realised.
In this respect, its assessment should be carried out in the light of the criterion “manifestly without reasonable foundation” as regards control of the use of property, within the meaning of the second paragraph of Article 1 of Protocol No. 1;
In assessing the proportionality of the measure establishing the contested difference in treatment, the requesting court should take into account, inter alia, the nature of the criterion of differentiation introduced by the law and its impact on the national authorities’ margin of appreciation; the choice of means employed to achieve the aim(s) pursued; the appropriateness of the means employed in relation to the aim(s) sought to be realised; and the impact of the means employed.
Done in English and in French, and delivered in writing on 13 July 2022, pursuant to Rule 94 §§ 9 and 10 of the Rules of Court.
Johan Callewaert Robert Spano
Deputy to the Registrar President
__________
[1] The 5th paragraph was added by Law no. 2000-698 of 26 July 2000 (published in the Official Gazette on 27 July 2000), for the purposes of executing the Chassagnou and Others v. France [GC] judgment of 29 April 1999 (nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III).
Leave a Reply