This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.
On 26 June 2012 the Grand Chamber delivered its judgment in the case of Herrmann v. Germany. It found a violation of Article 1 of Protocol No. 1 concerning the involuntary membership of a hunting organisation of a small landowner who was opposed to hunting. The judgment has been commented upon in Germany—where practical consequences and the argument that Strasbourg should not have dealt with this issue in the first place are stressed—as well as elsewhere. My aim is to add something by discussing the importance the Court attached to precedent. The Grand Chamber made it appear inevitable to repeat its earlier conclusion in the case of Chassagnou and Others v. France, that was later confirmed in Schneider v. Luxembourg. But could it really do nothing but ‘follow precedent’ or did it, after all, have a choice? Either way, by entirely focussing on prior case law, what considerations did the Grand Chamber leave out?
A short introduction to the facts: In 1993, Günther Herrmann inherited two landholdings of less than 75 hectares each. This made him a de jure member of a hunting organisation—something he only became aware of in 2003. At that time he filed a request to terminate his membership because he was opposed to hunting on ethical grounds. The case eventually made it to the Bundesverfassungsgericht, which declined to consider the applicant’s complaint. It held that the fact that Herrmann had to allow hunting on his land defined and limited the exercise of his property right in a proportionate manner. The Bundesjagdgesetz aimed at the management and preservation of game stocks, and compulsory membership of a hunting organisation for small landholders was an appropriate and necessary means of achieving this aim.
In the Chamber judgment of 20 January 2011 the Court, by a majority, held that there had not been a violation of Article 1 P1, Article 1 P1 in conjunction with Article 14, and Article 9 ECHR. With regard to Article 1 P1, it concluded that ‘having regard to the wide margin of appreciation (…) in this area’, the Government struck a fair balance between the interests at stake.
The Chamber distinguished the case from Chassagnou a.O. because the German law applied nationwide, the owners of plots of over 75 hectares also had the duty to either hunt themselves or tolerate hunting, and the applicant had a claim to a share of the profit corresponding to the size of his property. The Grand Chamber, however, now took a different approach. Putting to the fore the importance of following legal precedent for reasons of legal certainty etc., it holds that it
‘cannot but reaffirm the principles set out in the Chassagnou a.O. and Schneider judgments, notably that the imposing on a landowner opposed to the hunt on ethical grounds the obligation to tolerate hunting on his or her property is liable to upset the fair balance between protection of the right of property and the requirements of the general interest and to impose on the person concerned a disproportionate burden incompatible with Article 1 of Protocol No. 1’ (para. 80).
Starting from this consideration, the reasoning thereafter is mainly focused on showing why notwithstanding certain factual differences, the ‘general rule’ distilled from the earlier cases cannot be departed from. By fourteen votes to three, the Grand Chamber holds that there had been a violation of Article 1 P1.
I am not convinced that the importance of precedent made that the Court could not but rule in favour of Mr Herrmann. Rather than focusing on the general rule, a closer look at the different cases shows that the arguments that in Chassagnou a.O. weighed most heavily towards the conclusion that no fair balance had been struck, are the ones in fact missing in Herrmann. The German law did indeed also allow for some exceptions. However, as also the dissenting Judges (Björgvinsson, Vučinić, and Nußberger) note, contrary to the French Loi Verdeille, the German law did not exclude all large private estates (more than 20, but in some places 60 hectares) and State land, but only 0.01% of all land. These minor exclusions could be well explained and hence the German regime showed evidence of the necessity of the interference more than its French counterpart. Moreover, unlike in Chassagnou a.O. the hunting regime contained democratic elements and the applicant did have an opportunity to obtain compensation for the interference with his property rights.
In Schneider, on the other hand, the law was also applied nationwide, landowners were entitled to compensation, and still the Court found that Article 1 P1 was violated. As can be read in the Chamber judgment however, there were still some reasons to distinguish Herrmann from Schneider with respect to the rationality behind the hunting regime and the exceptions made. The question can moreover be asked whether the Chamber in Schneider correctly carried through the Chassagnou a.O. reasoning, or whether it somewhat over-enthusiastically applied the strict approach the Grand Chamber had laid out in the French case. Does the fact that there was a form of compensation really not matter in a property rights case, because receiving money for hunting or damage is not compatible with being opposed to hunting?
The judgment in Chassagnou a.O. can be understood quite narrowly, holding that merely if there is a somewhat arbitrary and truly individual burden that is not compensated for, the interests of the State in ensuring a proper functioning of a hunting regime can be outweighed by individual concerns. The Court however chose to be guided by the extensive interpretation laid down in the Chamber judgment in Schneider. Focusing on the communalities rather than the particularities of the three cases it provided for a more or less insurmountable barrier also for non-discriminatory hunting regimes that, even for good (practical) reasons, do not allow a single landowner to exclude his land because he is morally opposed to hunting.
In my opinion, in Herrmann the Grand Chamber did have a choice. It might have good reasons for doing what it did, but unfortunately its being occupied with precedent and the similarities of the three cases prevents us from knowing what these are.
Important is, lastly, that the Court’s preoccupation did not leave any room for considering the margin of appreciation that applied in this area. The dissenters argue that hunting is not a human rights issue per se. Is following the line set out in prior cases as important when a case concerns the ‘micromanagement of problems which do not need a solution at European level’ and the regime was upheld even by the highest national court? I do not think the Court should not have dealt with this issue in the first place. Yet recognizing that the way Germany organised hunting could fall within its margin of appreciation, was the least it could have done.