October 22, 2012
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.
Only a few months ago I took the opportunity to discuss Herrmann v. Germany. In that case the Grand Chamber 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. Together with the three dissenters I was somewhat critical of the Court’s unwillingness to take into account the rationale behind and the particularities of the German hunting system. Its following of the precedent set in Chassagnou and Others v. France left no room for any margin of appreciation in Herrmann. Two weeks ago the Grand Chamber has once more shed its light on the issue of involuntary membership of a hunting organisation. In Chabauty v. France it becomes clear that this kind of interference with a landowner’s property rights is disproportionate per se only if someone is opposed to hunting on ethical grounds, i.e., if it is a matter of convictions. This explains the Court’s straightforward approach in Herrmann, but nevertheless still brings up something to discuss.
Mr Camille Chabauty had inherited two plots of land of less than 20 hectares that were for that reason included in the hunting grounds of the association communale de chasse agréée (ACCA). Some ten years ago Chabauty wanted to have his lands removed from the ACCA’s hunting grounds, first ‘as a matter of personal conviction’, but later because of the ECtHR’s rulings that according to him held that there was no objective or reasonable justification for obliging landowners, by means of compulsory transfer, to join an ACCA against their wishes. (It later turned out that he wanted to derive benefit from his land by leasing it for hunting.) The Conseil d’Etat eventually found that there had not been a violation of the Convention, as the difference made between small and large landowners was in the general interest and as small landowners remained free to use their land for a purpose in keeping with their conscience.
After the Chassagnou and Others judgment, the French Loi Verdeille had been amended and since 2000 there was a possibility for those opposed to hunting on ethical grounds to object to automatic membership of an ACCA. And indeed, as the Grand Chamber makes clear in Chabauty, allowing for an exception for those whose personal convictions run counter to having their land included in the grounds of a hunting organisation sufficed to make the French system comply with the Chassagnou and Others judgment. The Court emphasises that the violations it found in earlier cases were a direct result of the fact that the landowners in those cases were opposed to hunting on ethical grounds, and, ‘as the applicant [here] is not opposed to hunting on ethical grounds, no violation […] can be inferred in the present case from Chassagnou and Others’. Determining whether the mere fact that if not for ethical reasons only owners of land of more than 20 hectares can avoid the ACCA membership constituted a source of discrimination in breach of the Convention, the Court is willing to grant a wide margin of appreciation. It has no trouble in finding that the general distinction between small and large landowners was in the general interest and ‘compensated for’ by the fact that members were allowed to hunt on all of the ACCA’s grounds.
The Court admits that in Chassagnou and Others it had expressed some doubts as regards the rationale behind the French hunting system as only 29 out of 93 départments in France had compulsory ACCA membership. It was exactly this doubt with regard to the necessity or non-discriminatory character of the French system that—being absent in Germany—made me wonder in my previous post why the Court did not see any room for ruling differently in Herrmann. Now we know that the Court does not care much about the set-up of compulsory hunting rights systems and leaves this to the Member States—with the one exception being that there should be a possibility for those opposed to hunting on ethical grounds to avoid membership. Now that even the French system is in itself ‘Convention proof’, Germany for sure need not worry about further ‘Strasbourg micromanagement’ in this area.
A question I am left with is whether in the earlier ‘hunting rights cases’ it was smart of the Court to deal with the issue first and foremost under Article 1 of Protocol No. 1. The problematic matter in these cases was not so much whether the (small) interference with landowners’ property was rightly compensated for, but rather whether someone whose convictions make him opposed to hunting, could be obliged to be a member of a hunting organisation. This means that the Court could have also dealt with this issue under Article 9 (freedom of conscience) or 11 (freedom of association) of the Convention. (It did take these articles into account in Chassagnou and Others and less so in Schneider v. Luxembourg, but Herrmann was presented as a mere property issue). Emphasising the article 9 and article 11 aspects of the issue would have made clear from the start that it is a matter of convictions. Moreover, it would not have left any doubt as to whether the Court in general—outside the ‘opposition on ethical grounds issue’—is willing to leave States a wide margin of appreciation in organising the management of their game stocks.