January 31, 2023
By Dr Elif Askin
The prohibition of discrimination in Article 14 of the European Convention on Human Rights (ECHR) has been criticised for being a ‘parasitic’ right of marginal impact and ‘a kind of a Cinderella provision that has not been given an opportunity to shine’. Over the past decade, however, the European Court of Human Rights (ECtHR or the Court) has started to engage more actively with discrimination claims brought before the Court. In general, the ECtHR has taken a more coherent approach to the interpretation of Article 14 ECHR than in its early jurisprudence. In many recent cases, the ECtHR has developed and further expanded the constituent parts of the right and the standard of review for establishing a discrimination under the Convention system. Nevertheless, gaps and inconsistencies in the juridical practice on Article 14 ECHR are still apparent.
On 13 July 2022, the ECtHR issued an 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 (P16-2021-002). In the advisory opinion, the Court elaborates on the legal test to be applied when assessing an alleged violation of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (protection of property), in the context of a legal provision on hunting in France. Relying on pertinent case law on Article 14 ECHR, the ECtHR provides detailed guidance to national courts on how to examine discrimination claims in line with the Convention system. This blogpost discusses the findings of the ECtHR by analysing how the Court interprets and applies the existing standards of Article 14 ECHR to the question at hand. As I will show below, the advisory opinion contains several loopholes that remain to be addressed and clarified by the Court in future cases relating to the prohibition of discrimination.
On 19 April 2021, the Conseil d’État asked the ECtHR to give an advisory opinion under Protocol No. 16. The request relates to a case pending before the French court in which the federation of owners of private forest land (forestiers privés de France) filed an application following an amendment to Article L. 422-18 of the French Environment Code introduced in 2019 (AO, § 12).
The dispute has arisen in the context of the ‘Loi Verdeille’, a French law of 1964 that introduces the establishment of hunting co-operatives known as the municipal hunters’associations (associations communale de chasse agréée (‘ACCAs’)) in the French municipalities. The ACCAs were enacted to curb ‘public hunting’ on land belonging to others, which was causing serious environmental damage, and to ensure the balanced management of hunting and game stocks by regulating this practice on French territory (AO, § 25-28).
Under that law, landowners are required to become members of the local ACCA and transfer their land and hunting rights to it in order to create hunting grounds governed by common rules in the French municipalities. The Environment Code regulates the conditions under which individual landowners and landowners’ associations can withdraw their hunting grounds from an ACCA to which they are affiliated.
First, Article L. 422-10 of the Environment Code stipulates that once an ACCA has been established in a municipality, landowners and landowners’ associations holding hunting rights over areas larger than the minimum area referred to in the legislation are entitled to object to the compulsory transfer of their land to the ACCA (AO, § 38). Second, Article L. 422-18 of the Environment Code, which has been challenged before the Conseil d’État, provides thatwhileindividual landowners are entitled to withdraw from an ACCA at any time if their land attains the minimum area, only those landowners’ associations which had a recognised existence prior to the date of creation of the АССА are entitled to withdraw from the ACCA if their land pooled together reaches the minimum area referred to in that provision. However, the same provision excludes this option of withdrawal for landowners’ associations set up after the creation of an ACCA, even if their combined land reaches the minimum area required by law. As a result, landowners’ associations formed after the establishment of an ACCA cannot regain exclusive hunting rights over their land that they lost when the land was transferred to the respective ACCA, whereas the right to withdraw is granted to associations that existed at the time of the creation of an ACCA (AO, § 37-47, 54).
Before the Conseil d’État, the applicant federation claimed that the temporal distinction introduced by Article L. 422-18 of the Environment Code between landowners’ associations formed prior to, or after the creation of, an ACCA is discriminatory and constitutes a violation of Article 14 ECHR and Article 1 of Protocol No. 1. The applicant argued that the public interest objective pursued by the creation of the ACCAs could have been achieved by other means, without the need for a differential treatment between landowners’ associations based on the possibility of opting out from their local ACCAs (AO, § 15).
The Conseil d’État requested an advisory opinion from the ECtHR on the following question:
The advisory opinion addresses the legal criteriaenabling domestic courts, in this case the Conseil d’État,to assess whether the differential treatment between various landowners’ associations resulting from Article L. 422-18 of the French Environment Code is compatible with Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (AO, § 56). In general, the Court’s findings are in line with its jurisprudence on Article 14 ECHR, particularly as far as the structure of the examination of the right is concerned. However, the advisory opinion provides domestic courts with a detailed and well-structured roadmap for examining the discrimination tests of Article 14 ECHR. The ECtHR gives a solid overview of the criteria applicable to these tests, as derived from its case law.
As in previous cases, the Court reiterates that the rough structure of examination is a two-step test of assessing whether there has been a violation of the prohibition of discrimination. The first step is to review, on the one hand, whether the difference in treatment falls within the scope of Article 14 ECHR in conjunction with Article 1 of Protocol No. 1 (protected grounds test), and, on the other hand, whether the treatment in question concerns persons in ‘analogous’ or ‘relatively similar’ situations (comparability test). The second step is then the examination of the justification for the differential treatment (justification test) (AO, § 57).
The prohibition of discrimination of Article 14 ECHR requires the differential treatment to be based on a protected ground against discrimination (see e.g. here). The ECtHR rightly points out that a difference in treatment based on a temporal distinction cannot a priori be excluded from the scope of Article 14 ECHR and Article 1 of Protocol No. 1 (AO, § 62). In this context, the Court invokes two potential grounds of discrimination enumerated in Article 14 ECHR, namely ‘other status’ and ‘property’, both of which could be applicable to the present case (AO, § 60-61). So far, both discrimination grounds have only played a marginal role in the Court’s case law on Article 14 ECHR.
This is the first time that the ECtHR addresses the question of whether a differential treatment based on a temporal criterion is covered by the ground of ‘other status’ within the meaning of Article 14 ECHR (AO, § 60). As in previous judgments, the ECtHR notes that this ground has a broad meaning and is not limited to personal characteristics (AO, § 60). Thus, the Court reaffirms that a differentiation which is not personal but merely factual and which leads to a differential treatment as in the present case may – at least potentially – fall within the scope of Article 14 ECHR. Unfortunately, that is all the Strasbourg Court has to say about this ground of discrimination, which is becoming increasingly important in relation to current discrimination cases.
Furthermore, it is also interesting to see how the ECtHR develops another potential ground of discrimination based on ‘property’ in this case. In the Court’s view, the temporal distinction between landowners’ associations in the French Environment Code indirectly refers to the size of landholding and thus to immovable property. The ground of property is therefore applicable to the present case (AO § 61).
My first critical point relates to the Court’s identification of the ground of discrimination in this case. According to the ECtHR, both grounds of discrimination could be applicable to the case at hand, but the legal reasoning to be expected from the ECtHR in the context of an advisory opinion is obviously missing here. It would certainly have been beneficial for future cases under Article 14 ECHR if the Court had elaborated on the application of the discrimination ground of other status to the differential treatment in question, rather than ‘indirectly’ constructing a discrimination ground on the basis of property. This is problematic because the differential treatment between the landowners’ associations introduced by the French Environment Code is based on a temporal distinction, namely the date on which these associations were formed in relation to date of the creation of an ACCA. Instead, the Court constructs the discrimination ground of property from the rationale underlying the creation of the ACCAs. While Article L. 422-18 of the French Environment Code inevitably raises questions relating to the enjoyment of property, the link with the differential treatment in question here is only ‘indirect’, as the Court itself admits (AO, § 57, 60).
In general, the applicability of a discrimination ground to a differential treatment raises the larger question of whether extending the scope of a protected ground is in fact preferable. As far as the Court’s finding on the ground of property is concerned, I think the better arguments speak against such an ‘indirect’ extension, not least in order to avoid the risk of a boundless application of the prohibition of discrimination. But this is of course a fundamental question that concerns not only the ground of property but also that of other status, the contours of which remain unclear. Unfortunately, the ECtHR missed the opportunity here to clarify the long-awaited definition of this ground of discrimination.
The comparability test under Article 14 ECHR requires an assessment of whether the differential treatment concerns persons in ‘analogous’ or ‘relatively similar situations’ (AO, § 64). As noted by the Court, Article L. 422-18 of the Environment Code distinguishes between two categories of persons and legal entities, namely landowners and landowners’ associations having a recognised existence prior to the date of creation of the АССА, and associations set up after that date (AO, § 63).
The advisory opinion provides an overview of the criteria developed in the Court’s case law for assessing the comparability of situations under Article 14 ECHR. According to the ECtHR, the factual and legal elements applicable to the comparability of a situation must be assessed on the basis of the subject-matter and purpose of the (legislative) measure which made the distinction. Furthermore, the assessment needs to take into account the context in which the measure is imposed. It should be based on objective elements that consider the comparable situation in its entirety rather than only its individual aspects (AO, § 67-69).
The ECtHR stresses that the existence of an analogous situation does not necessarily require that the persons or groups being compared are identical. In fact, the Court holds that the two categories of associations in the present case are in different situations. The Conseil d’État will therefore have to examine whether the two groups of associations ‘bear similarities which would outweigh their differences’ (AO, § 70).
Another critical point in this context is the Court’s remarks on the burden of proof in discrimination cases. The ECtHR emphasises that the applicant must demonstrate that he or she has been subjected to discriminatory treatment and is in a comparable situation to other persons but is treated differently. The applicant should gather the relevant factual and legal information and make it available to the domestic court (AO, § 66). The burden of proof is therefore on the applicant, also because of the wide margin of appreciation that States have in discrimination cases involving economic and social policy, as I will show below. This rule remains problematic, particularly with regard to its practical implications. Most discrimination cases are complex and pose a challenge for applicants to prove that they belong to a comparator group but are treated differently.
A differential treatment is discriminatory and in breach of Article 14 ECHR if there is no ‘objective and reasonable justification’ for it (AO, § 72). In accordance with the Court’s case law on Article 14 ECHR, the justification test requires that the treatment in question pursues a ‘legitimate aim’ and has ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (AO, § 72).
Considering the justification test in detail, the ECtHR holds that the standard of justification will vary depending on the ground and context of the alleged discrimination. An important aspect is the margin of appreciation of national authorities in assessing the justification of a differential treatment. The Court notes that France has a wide margin of appreciation concerning the question at hand and recognises that this is closely linked to the nature of the discrimination ground on which the differential treatment is based (AO, § 100). According to the ECtHR, the discrimination ground of property justifies a wider margin of appreciation of States due to the involvement of economic and social policies at the national level than a differential treatment based on discrimination grounds like racial or ethnic origin, which the ECtHR deems to be unacceptable (AO, § 100, see also Chabauty v. France, § 50).
The Court thus assumes that certain types of differential treatment are prima facie discriminatory, but this is obviously not the case here. In its assessment, the Court appears to link the ground of discrimination to the margin of appreciation of States when assessing the justification for the differential treatment. Such treatments, arising from social and economic policies of States (based on protected grounds of property or other status), grant national authorities a wide margin of appreciation and, in turn, seem to restrict the extent of the scope of the Court’s scrutiny in examining the alleged discrimination. This would imply that a violation of Article 14 ECHR can be found as a result of certain grounds of discrimination (e.g., race or ethnic origin), but not for grounds relating to social and economic policy. Consequently, certain forms of differential treatments, such as those based on property, would be automatically excluded from the scope of Article 14 ECHR. It can be left open at this point whether the Court has deliberately engaged in such a vicious circle. Rather, it seems to me that the Court derived its reasonings here from the case of Chabauty v. France, which also concerned hunting issues in France and where the difference in treatment was based on the discrimination ground of property. As mentioned above, the present question could arguably be examined under the discrimination ground of other status rather than property. However, it is doubtful whether the ECtHR would have ruled differently when considering the justification for the differential treatment.
The Court leaves it to the Conseil d’État to determine whether the differential treatment of the landowners’ associations is in accordance with Article 14 ECHR and Article 1 of Protocol No. 1. In general, the advisory opinion provides a roadmap for the assessment of the discrimination test and is a useful compilation of the legal standards that the ECtHR has developed over the years in relation to Article 14 ECHR. Nevertheless, the advisory opinion also reveals that loopholes still exist within the framework of Article 14 ECHR. These concern not only the definition of the discrimination grounds of Article 14 ECHR and the rules on the burden of proof, but also the role of States’ margin of appreciation in discrimination cases. The advisory opinion reveals once again that the clarification of the issue of the States’ margin of appreciation is critical for establishing a violation of Article 14 ECHR. It remains to be seen how this will evolve in the Court’s practice in the future.