ITEMID: 001-58288
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF CHASSAGNOU AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Violation of Art. 14+P1-1;Violation of Art. 11;Violation of Art. 14+11;Not necessary to examine Art. 9;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Luzius Wildhaber
TEXT: 10
11. Until the French Revolution of 1789 the right to hunt was a privilege of the nobility. Only nobles could take game, which was regarded as the lord’s property.
During the Revolution there were two schools of thought on the question. The first approach, supported by Mirabeau, was to make the right to hunt the prerogative of the landowner alone; the second, which was advocated by Robespierre, was to give all citizens unconditional freedom to hunt everywhere. The first approach carried the day, as in the night of 4 August 1789 the privilege of hunting was abolished “subject to the sole reservation that landowners alone may hunt” and a decree of 11 August 1789 laid down the principle that “Every landowner has the right to destroy or cause to be destroyed, on his property only, any species of game”.
Subsequently the Law of 3 May 1844, a large part of which is still in force, regulated the right to hunt by introducing hunting licences and laying down fixed hunting seasons. Section 1 of that Law, which was later codified as Article 365 of the Countryside Code and then Article L. 222-1, provided: “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.”
However, it was made clear by case-law that this consent could be tacit and that it was possible to hunt on another’s land provided that the owner of the hunting rights had not expressly manifested his opposition by means of measures such as signing a lease, swearing in a gamekeeper or putting up “private hunting” notices.
12. Although, in an attempt to organise hunting, associations of hunters were set up spontaneously in the regions north of the Loire where large estates of agricultural land or woodland predominated, the theory of tacit consent derived from case-law led throughout the south of France, where sub-division of landholdings has created a pattern of much smaller properties, to an almost unlimited freedom to hunt, known as “chasse banale” (public hunting). With the exception of a few private hunting grounds, hunters could thus hunt wherever they pleased and no one was responsible for the proper management of game stocks; as a result game species in certain regions were decimated.
13. It was in those circumstances that Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, was enacted (see paragraphs 41 et seq. below). This provided for the creation of approved municipal hunters’ associations (Associations communales de chasse agréées – “ACCAs”) and approved inter-municipality hunters’ associations (Associations inter-communales de chasse agréées – “AICAs”). Section 1 (which subsequently became Article L. 222-2 of the Countryside Code, see paragraph 41 below) states that their object is “to encourage, on their hunting grounds, an increase in game stocks, the destruction of vermin and the prevention of poaching, to instruct their members in how to hunt without interfering with property rights or crops and in general to improve the technical organisation of hunting so that the sport can be practised in a more satisfactory manner”. To that end, the law requires the owners of landholdings smaller in area than a certain threshold, which varies from one département to another, to become members of any ACCA set up in their municipality and to transfer to it the hunting rights over their land in order to create municipal hunting grounds.
14. The Loi Verdeille applies in départements of metropolitan France other than Bas-Rhin, Haut-Rhin and Moselle, where there is a special regime inherited from German law (see paragraph 40 below). The creation of an ACCA is compulsory in départements on a list drawn up by the Minister responsible for hunting, which designates 29 of the 93 metropolitan départements concerned, including Creuse, where Mr Dumont, Mr A. Galland, Mr P. Galland, Mr E. Petit, Mr M. Petit and Mr Pinon live (see paragraph 23 below) and Gironde, where Mrs Montion lives (see paragraph 28 below). In the municipalities of the remainder of these 93 départements ACCAs may be set up by the prefect 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. On 28 February 1996 ACCAs were thus set up in 851 municipalities in 39 different départements, including 53 of the 555 municipalities in Dordogne, where Mrs Chassagnou, Mr R. Petit and Mrs Lasgrezas live (see paragraph 16 below).
15. The right to hunt belongs to the owner on his land (see paragraph 36 below), but the creation of an ACCA results in the pooling of hunting grounds within the municipality, so that the members of the association can hunt throughout the area thus formed (see paragraphs 41 and 50 below). Under certain conditions the owners of landholdings attaining in a single block a specified minimum area (60 hectares in Creuse and 20 hectares in Gironde and Dordogne) may object to inclusion of their land in the ACCA’s hunting grounds or request its removal from them (see paragraphs 47-49 below).
16. Mrs Chassagnou, Mr R. Petit and Mrs Lasgrezas were born in 1924, 1936 and 1927 respectively. All three are farmers and live in the département of Dordogne, Mrs Chassagnou at Tourtoirac and the other two at Sainte-Eulalie-d’Ans.
They own landholdings there smaller than 20 hectares in a single block which are included in the hunting grounds of the ACCAs of Tourtoirac and Chourgnac-d’Ans.
17. In 1985, as members of the Anti-Hunting Movement (“the ROC”), and later of the Association for the Protection of Wildlife (“the ASPAS”), an approved association of recognised public usefulness with regard to the protection of nature, the applicants placed notices at the boundaries of their property bearing the words “Hunting prohibited” and “Sanctuary”. The ACCAs of Tourtoirac and Chourgnac-d’Ans then applied for an injunction requiring the removal of these notices. The judge competent to hear urgent applications granted the injunction sought by a decision of 26 September 1985, which was upheld on 18 June 1987 by the Bordeaux Court of Appeal.
18. On 20 August 1987 the prefect of Dordogne rejected an application from Mr R. Petit, Mrs Chassagnou and Mrs Lasgrezas for the removal of their land from the hunting grounds of the Tourtoirac and Chourgnac-d’Ans ACCAs.
They then applied for judicial review of that decision to the Bordeaux Administrative Court, which found against them in a judgment of 26 May 1988.
19. On 30 July 1987 the applicants had brought civil proceedings against the ACCAs of Tourtoirac and Chourgnac-d’Ans in the Périgueux tribunal de grande instance.
Essentially, they argued that sections 3 and 4 of the Loi Verdeille were incompatible with Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 1, firstly in that they provided that all unenclosed plots of land smaller than 20 hectares in area and situated more than 150 metres from any dwelling were to be included in an ACCA’s hunting grounds by means of the transfer of hunting rights to the association from the landowners or holders of the rights, such transfer being deemed to have been effected automatically and without valuable consideration even without the latter’s consent, and secondly in that a non-hunting landowner automatically became a member of the association. They asked the court to rule on that account that they were third parties in relation to the ACCAs concerned, that their land could no longer be included in the ACCAs’ hunting grounds and that the ACCAs could not rely on the transfer of their hunting rights. Lastly, they asked the court to declare that they had the right to put up on their property notices enjoining respect for their rights.
20. On 13 December 1988 the Périgueux tribunal de grande instance gave judgment in the following terms:
“[As regards the argument concerning Article 1 of Protocol No. 1:]
Admittedly, the Law entails enforced deprivation of the right to hunt, which is one of the elements of the right of property, and obliges the owners of land subject to the ACCAs’ control to accept the presence on the land of third parties, namely hunters.
Moreover, the Loi Verdeille appears to lay down special rules derogating from the principle laid down in Article 365 of the Countryside Code that ‘No one shall have the right to hunt on land belonging to another without the owner’s consent ...’.
...
[Protocol No. 1] does not exclude restrictions on the right of property ... since Article 1, after stating the principle ‘No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’, goes on to say: ‘The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
Most of the terms employed reflect the very broad nature of the restrictions which may be imposed on the right of property by signatory States in their domestic legislation.
The Loi Verdeille, whose stated aim ... is to encourage, inter alia, an increase in game stocks, the destruction of vermin and the prevention of poaching, satisfies the ‘general interest’ criterion laid down in Article 1 of [Protocol No. 1]. Similarly, in attempting to ‘improve the technical organisation of hunting’ Parliament intended to permit democratic participation in hunting and to prevent landowners from reserving exclusive hunting rights over their land, thus restricting the right to use property, meaning in this case the right to hunt, in accordance with the ‘general interest’ referred to in [Protocol No. 1].
Consequently, with regard to the right of property, the provisions of sections 3 and 4 of the [Loi Verdeille] do not appear to be contrary to the Convention ...
[As regards the arguments concerning Articles 11, 14, 9 and 10 of the Convention:]
By providing that owners of landholdings of less than 20 hectares in area shall ipso facto be members of an ACCA, section 4 of the Loi Verdeille imposes what amounts to compulsory membership of an association whose aims, as in the present case, are not, for reasons of personal ethics, shared by the members, and indeed are vehemently opposed by them.
Freedom of association must necessarily be interpreted as the ‘positive freedom’ for each individual to join an association of his or her choice, but it also means the negative right not to be compelled to join an association or trade union. To accept that Article 11 of [the Convention] guarantees only the ‘positive’ freedom of association would mean denying the very principle of that freedom, which is based on the free, voluntary choice of any person who wishes to join a group.
Accordingly, by compelling certain landowners to join an ACCA, sections 3 and 4 of the Loi Verdeille violate the very substance of freedom of association, which must be regarded as one aspect of the freedom of conscience, opinion and expression which is likewise guaranteed by [the Convention], and lead not to a restriction of the freedom of association but to the negation of it.
This infringement of the freedom of association appears all the more shocking because the right to object to the transfer of hunting rights is reserved by section 3 of the [Loi Verdeille] exclusively to the owners of properties exceeding 20 hectares in area in a single block.
Thus the Loi Verdeille establishes discrimination between landowners on the basis of the amount of land they own, which is wholly incompatible with Article 14 of [the Convention], whereas the right not to join an ACCA should be uniformly granted to all landowners, whatever the size of their holdings.
Nevertheless, it must be determined whether the interference with exercise of the freedom of association resulting from sections 3 and 4 of the Loi Verdeille can be justified under paragraph 2 of Article 11 of [the Convention].
As it is necessarily out of the question to regard the Loi Verdeille as ‘necessary in a democratic society’ in the interests of national security or public safety, for the prevention of disorder or crime, or for the protection of health or morals, it can be considered compatible with [the Convention] only if it is accepted that the interference with exercise of the freedom of association is justified ‘for the protection of the rights and freedoms of others’, the only restriction in the present case provided for by the above-mentioned Article 11.
It must therefore be determined whether the Loi Verdeille governing the organisation of ACCAs, whose object is ‘in general’ – or mainly, in the plaintiffs’ submission – ‘to improve the technical organisation of hunting so that the sport can be practised in a more satisfactory manner’, can prevail over the right not to join a hunters’ association.
It must be noted in the first place that the Loi Verdeille does not appear to be absolutely necessary, given that it is applied in full in only twenty-eight French départements out of seventy-one, that it affects only nine thousand municipalities in France, including seventy-seven in Dordogne and that it is not the only legislation concerning the protection of game and compensation for damage caused by it.
Secondly, the right to hunt is not considered one of the rights protected by [the Convention] (see, to that effect, Cass. Ch. Crim. 15.12.1987 – GP 1988, page 8).
Consequently, mere protection of the exercise of a sport cannot prevail over the fundamental freedom to join or not to join an association. By compelling landowners to become members of ACCAs despite the ethical stance and personal conscience of those members, as in the present case, the Loi Verdeille inflicts on the persons concerned wrongs that are disproportionate to the aim pursued, namely the self-seeking pursuit of a leisure activity and the organisation of that activity.
This Court therefore finds that sections 3 and 4 of the [Loi Verdeille] do not comply with the binding provisions of Articles 11, 9, 10 and 14 of [the Convention].
Consequently, the plaintiffs are now entitled to resign their membership of the ACCAs concerned and put up notices on their property bearing the text of their choice, in so far as this is consistent with public-order considerations and accepted moral standards.”
21. On 23 December 1988 the Tourtoirac and Chourgnac-d’Ans ACCAs appealed to the Bordeaux Court of Appeal.
On 18 April 1991 that court set aside all the provisions of the judgment of 13 December 1988, giving the following reasons:
“It is certain that in seeking to promote the rational exercise of the right to hunt through the pooling of individual rights over properties smaller than the minimum areas laid down in regulations the [Loi Verdeille] derogates to a considerable extent from the principle laid down by the provisions of Article 365 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’. By that means, however, the right to hunt, which is one element of the right of property, has been detached therefrom in order to ensure that it is exercised in accordance with the general interest, as defined in section 1, which provides that the object of [ACCAs], thus vested with public-authority prerogatives, shall be ‘to encourage, on their hunting grounds, an increase in game stocks, the destruction of vermin and the prevention of poaching, to instruct their members in how to hunt without interfering with property rights or crops and in general to improve the technical organisation of hunting so that the sport can be practised in a more satisfactory manner’.
In asserting that Parliament only took into consideration ‘the self-seeking pursuit of a leisure activity’, and that this did not justify depriving some people of their fundamental rights, the court below evidently disregarded the object of the provisions referred to above, which concern both protection of the environment and wildlife against unregulated hunting, damage of all kinds or anarchic management and the organisation and regulation of the sport itself. Hunting, on account of the very large number of people who take part in it and its corresponding economic importance, must be subject, like any other popular leisure activity, to the constraints inherent in the normal operation of a public service which has in addition been recognised as such by the Constitutional Council and the Conseil d’Etat (CE 7/7/1978 – CE 5/7/1985). As such public-interest restrictions on exercise of the right of property are expressly provided for by [the Convention] in Article 1 of Protocol No. 1, the respondents Chassagnou, Petit and Lasgrezas may not validly plead a breach of that provision. Similarly, the pooling of small properties to form hunting grounds of sufficient size, which are accordingly capable of affording as many people as possible access to leisure activities which would otherwise inevitably remain the prerogative of landowners fortunate enough to possess a large estate, deprives of all foundation the complaint that the [Loi Verdeille] discriminates on the ground of property, in breach of Article 14 of [the Convention].
Lastly, while transfer of rights over their land to an ACCA gives the landowners concerned the status of automatic members, who are thus empowered to participate in the management of the municipal hunting grounds and to defend their interests, these are the only effects of the provisions in issue. Unlike persons whose membership is conditional, inter alia, on the payment of subscriptions, automatic members are under no obligation. Still less is there any provision for coercive measures or penalties against them; they are free to hunt or not to hunt, to scrutinise the way the ACCA conducts its business and participate in its work or refrain from any involvement in it.
Whereas, moreover, the creation of ACCAs, and their scope, modus operandi and constitution are not only governed by legislation but also subject to prefectoral approval, and whereas on that account, and notwithstanding the associative form of these bodies, their public-interest role excludes any contractual relationship between their members, the automatic admission, free of charge, of landowners required to transfer their rights is only consideration for the partial alienation that they suffer, and constitutes in addition an undoubted attenuation of the measures restricting the right of property.
It would appear that the members of the ROC, who are well aware that the general interest imposes certain restrictions on exercise of the right of property and that the [Loi Verdeille] does not in any way erect obstacles to freedom of association, are in fact claiming a right not to hunt, which is neither secured by domestic law nor guaranteed, any more than the right to hunt itself, by international treaties.
...”
22. By a judgment of 16 March 1994 the Third Civil Division of the Court of Cassation dismissed an appeal on points of law by the applicants, giving the following reasons:
“The provisions of Article 1 of Protocol No. 1 ... recognise the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest, and the Court of Appeal held, firstly, that the provisions of the [Loi Verdeille] had to do with protection of the environment and wildlife from unregulated hunting and damage of all kinds or anarchic management as much as with the organisation and regulation of hunting itself, and secondly that the pooling of small landholdings into hunting grounds of sufficient size, which would accordingly be able to afford as many people as possible access to leisure activities that would otherwise be bound to remain the prerogative of large landowners, deprived of all foundation the complaint of discrimination based on property. The argument on that point is therefore unfounded.
...
Having noted that landowners who had transferred their rights to the association, who were automatic members, were under no obligation, that there was no provision for coercive measures or penalties against them, that these members could participate in the work of the association or refrain from doing so and that, as the public-service role of the association excluded any contractual relationship between its members, the automatic admission, free of charge, of landowners required by law to transfer their rights was only consideration for that transfer, the Court of Appeal, through those reasons alone provided the reasoning required by law for its decision on that subject.”
23. Mr Dumont, Mr A. Galland, Mr P. Galland and Mr E. Petit (who died in June 1995) were born in 1924, 1926, 1936 and 1910 respectively; Mr M. Petit and Mr Pinon were born in 1947. They are all farmers living at Genouillac in the département of Creuse. They own landholdings there smaller than 60 hectares in a single block which are included in the hunting grounds of the ACCAs of La Cellette and Genouillac and describe themselves as opposed to hunting on ethical grounds. They too are members of the ASPAS.
24. In August and September 1987 each of the applicants requested the prefect of Creuse to remove their land from the hunting grounds of the ACCAs in question. They then applied to the Limoges Administrative Court for judicial review of the implicit refusals constituted by the prefect’s failure to reply, relying on the provisions of the Convention and those of the International Covenant on Civil and Political Rights and the ILO Convention of 1948 on freedom of association.
25. On 28 June 1990 the Limoges Administrative Court dismissed the appeals in six identical judgments, giving the following reasons:
“As regards the complaint of an interference with the freedom of conscience
...
No provision of the Law of 10 July 1994 ... infringes the right of persons opposed to hunting to express that belief or to manifest it, even in public. The mere fact that an ACCA has been set up does not impose on them in that respect any constraint, obligation or prohibition ... The freedom of opinion and expression of persons opposed to hunting is necessarily limited by protection of the rights and freedoms of hunters and those who share their convictions.
As regards the complaint of an interference with the freedom of association
...
Under such provisions citizens cannot be obliged to join an association against their will. However, since, under the very terms of the provisions relied on, freedom of association may be subject to restrictions which are deemed necessary on general-interest grounds, a citizen may be legally required to join an association whose object is to serve the general interest. Rational exercise of the right to hunt, as organised by the Law of 10 July 1964 is a general-interest ground, notwithstanding the fact that, regard being had to the manner of its implementation, the Law is not in practice applied to the whole of the national territory. The interference thus imposed on individual freedom of association is not excessive in the light of this general interest.
As regards the complaint of a breach of equality before the law
...
In any event, the provisions of the Law ... do not introduce discrimination on the ground of property. Although it lays down a minimum qualifying area for objections and withdrawals, the Law’s wording and its drafting history show that these limits were laid down in order to ensure the rational organisation of hunting. Such a general interest justifies a difference in treatment between landowners depending on the area of land they possess without this different treatment constituting a breach of equality before the law.
As regards the complaint of an infringement of the right of property and the right of use
...
Although the provisions cited above protect the right of property and the right to use one’s possessions, they do not prevent restrictions being imposed thereon in the general interest. As this Court has already remarked, the organisation of hunting serves a general interest which justifies such restrictions. The landowners whose land is included in the ACCA’s hunting grounds receive consideration for the loss of their exclusive right of use in the form of their membership of the ACCA and the services it provides. The fact that [the applicants] stated that they were not interested by such forms of consideration is not capable of rendering them insufficient. Lastly, although [the applicants] maintained that the Law of 10 July 1964 did not ensure fair and prior compensation, contrary to provisions having the status of constitutional law, it is not for the administrative courts to rule on the constitutionality of legislation. Accordingly such a complaint may not be validly raised before the Administrative Court.”
26. Relying on Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 1, the applicants appealed to the Conseil d’Etat.
27. By six identical judgments of 10 March 1985 the Conseil d’Etat dismissed their appeals on the following grounds:
“...
No provision of the [Loi Verdeille] obliges a non-hunter to take part in or approve of hunting. Consequently, and in any case, the appellant is not entitled to maintain that the Limoges Administrative Court wrongly held that the provisions of the [Loi Verdeille] were not contrary to the provisions of Article 9 of [the Convention].
...
The [Loi Verdeille] introduced municipal hunters’ associations approved by prefects with the aim of improving the technical organisation of hunting. With a view to enabling these bodies to perform the public-service role entrusted to them, various public-authority prerogatives were conferred on them. Consequently, and in any case, the provisions mentioned cannot be validly relied on to contest the lawfulness of the impugned decision taken by the prefect of Creuse.
...
The fact that land belonging to the appellant was included in the hunting grounds of the [ACCA] and that owners of the hunting rights may come to hunt there has not deprived the appellant of his property but merely restricted his right to use it, in accordance with the rules laid down by the [Loi Verdeille], which are not disproportionate in relation to the general-interest objective pursued. The argument analysed above cannot therefore be upheld.
...
The fact that the [Loi Verdeille] lays down different rules, depending on whether the landholdings concerned are less than or greater than 20 hectares in area, is due to the fact that the situations are different, regard being had to the objectives pursued by that Law, in particular the management of game stocks. These rules do not impose any of the forms of discrimination proscribed ... by Article 14 of [the Convention]”
28. Mrs Montion was born in 1940 and works as a secretary. She lives at Sallebœuf in the département of Gironde.
29. The applicant and her husband, who died in February 1994, were the owners of a landholding of 16 hectares which formed part of the hunting grounds of the Sallebœuf ACCA.
As a member of the National Society for the Protection of Nature (“the SNPN”) and the ROC, Mr Montion unsuccessfully requested during the procedure to set up the ACCA that his land be designated an ACCA reserve. He then, with no more success, contested in the administrative courts the prefectoral decree of 7 December 1979 approving the association.
30. Determined thenceforth to include his property in the SNPN’s network of voluntary nature reserves, he requested the prefect of Gironde, in a letter of 15 June 1987, firstly to order the Sallebœuf ACCA to remove him from the list of its members, and secondly to remove his land from the list of properties forming the association’s hunting grounds. On 29 June 1987 he wrote to the chairman of the ACCA making the same request.
The prefect and the chairman of the ACCA refused in letters dated 25 June and 10 July 1987 respectively.
31. On 13 August 1987 Mr Montion and the SNPN asked the Bordeaux Administrative Court to set aside the decisions of 25 June and 10 July 1987 as being ultra vires. They essentially pleaded violation of Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 1.
32. By a judgment of 16 November 1989 the Bordeaux Administrative Court rejected these applications on the following grounds:
“As to the decision of 10 July 1987 by the chairman of [the ACCA]:
... [Mr Montion’s application to the chairman of the Sallebœuf ACCA] must be regarded as a challenge to membership of an association constituted in accordance with the 1901 Act. Although, in order to achieve the objectives laid down by the [Loi Verdeille], [ACCAs] are vested with public-authority prerogatives, they nevertheless remain private-law bodies. The decisions they take outside the context of the exercise of those prerogatives, particularly with regard to granting or withdrawing membership, are private-law acts which are not subject to review by the administrative courts. Consequently, the submissions in the application ... directed against the refusal to remove Mr Montion from the list of members of the Sallebœuf ACCA have been brought before a court which has no jurisdiction to take cognisance of them and must be rejected.
As to the decision of 25 June 1987 by the prefect of Gironde ...:
...
Under the terms of Article 14 of [the Convention]
The right to hunt or not to hunt is not one of the rights and freedoms whose enjoyment is protected by [the Convention]. Consequently, Mr Montion and [the SNPN] may not rely on the Convention in complaining of a breach of equality before the law. However, equality before the law is a general principle of law which the applicants may rely on.
Section 3 of the [Loi Verdeille] reserves to the owners of land attaining an area of at least 20 hectares in a single block the right to object to the inclusion of the land in question in the hunting grounds of an ACCA. That limit, which has not been shown to constitute discrimination on the ground of property, was laid down in order to ensure the rational organisation of hunting through the pooling of hunting grounds of sufficient size and in order thus to guarantee that as many people as possible might exercise the right to hunt. That being so, it cannot be considered to impair equality before the law.
While [the Convention] protects the right of property, it does not stand in the way of interferences with that right in accordance with the general interest. The organisation of hunting, on account of the very nature of that activity, the number of hunters and the social phenomenon it constitutes, is a matter of general interest which justifies an interference with the right of property. A landowner whose property is included in the ACCA’s hunting grounds receives consideration for the loss of his right to private use in the form of a right to use the land of the other landowners, not to mention the other services provided by the association, of which he automatically becomes a member. Furthermore, Mr Montion is not entitled to rely on his own refusal to accept this consideration in support of his assertion that he has not been fairly compensated for the loss of his right of use.
...
According to Article 9 of [the Convention]
The aim of these provisions is to protect rights and fundamental freedoms to which the right ‘not to hunt’ does not belong. In addition, they provide that the principles they set forth may be subject to restrictions inherent in the concurrent exercise of individual rights and freedoms. Indeed, the restrictions on these rights and freedoms are thus justified, in their principle and manner of application, in the light of the competing interests at issue. The organisation of hunting is made necessary, as pointed out above, by the need to protect public order, public safety and the right of everyone to hunt.
...
Under the terms of Article 11 of [the Convention]
Participation in [the ACCA], for a landowner whose property is included in its hunting grounds, is a right granted in consideration for the loss of the exclusive right to use his land and is intended to enable him to defend his interests within the association. In addition, he has the right to resign subject to the conditions laid down in section 8 of the [Loi Verdeille] and does not have to pay a subscription, transfer of his rights not being capable of being construed as a form of subscription, since advantages are provided to set this off. Consequently, the refusal to allow Mr Montion to resign from the Sallebœuf ACCA did not infringe the freedom of association.
...”
33. Relying on Articles 9, 11 and 14 of the Convention and Article 1 of Protocol No. 1, Mr Montion and the SNPN appealed to the Conseil d’Etat on 3 and 11 January 1990 respectively.
34. On 10 May 1995 the Conseil d’Etat dismissed the appeals by a judgment giving the same reasons as those it had given on 10 March of the same year in the cases of Mr Dumont, Mr A. Galland, Mr P. Galland, Mr E. Petit, Mr M. Petit and Mr Pinon (see paragraph 27 above).
35. Article L. 220-1 of the Countryside Code provides:
“The Government shall be responsible for supervising and regulating hunting in accordance with the general interest.”
36. Article L. 222-1 (former Article 365) of the Countryside Code provides:
“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.”
The “right to hunt” therefore belongs to the landowner. It is an exclusive right, although the law gives the lessee of an agricultural tenancy the right to hunt on the property (Article L. 415-7 of the Countryside Code).
The landowner may “let” his hunting rights but cannot sell them separately from the property concerned.
37. Article R. 228-1 of the Countryside Code provides:
“Anyone who hunts on land belonging to another without the consent of the owner of the land or the hunting rights shall be liable to the penalties laid down for Class 5 offences.”
38. Under Article R. 227-5 of the Countryside Code, the Minister responsible for hunting must draw up a list of the species of animals which may be designated vermin pursuant to Article L. 227-8. The list is drawn up after the National Hunting and Wildlife Council has been consulted on the basis of the potential harmful effect of the animals on human activities or biological equilibrium.
Article R. 227-6 provides that in each département the prefect must decide which species from those on the list provided for in Article 227-5 constitute vermin in that département, having regard to the local situation and on one of the following grounds: to protect public health and safety, to prevent significant damage to agriculture, forestry or aquaculture or to protect flora and fauna.
The prefect takes the relevant decision each year after consulting the Hunting and Wildlife Council for the département and the Hunters’ Federation. It is published before 1 December and comes into force on 1 January of the following year.
Under Article R. 227-7 of the Countryside Code, the landowner, person in possession or tenant farmer must either take steps to destroy vermin personally, or have such steps taken in his presence or delegate in writing the right to do so. No one delegating this right may receive payment for delegating it.
It has been established by case-law that the destruction of vermin is not hunting but an inherent part of the right of ownership or enjoyment of land (Paris Court of Appeal, 9 July 1970, D. 1971.16, note by M. B.)
39. In certain cases the law makes the “pooling” of hunting grounds compulsory.
40. In the départements of Bas-Rhin, Haut-Rhin and Moselle exercise of the right to hunt is governed by a local law of 7 February 1881. It is supervised by the municipality on behalf of landowners. The municipality lets hunting grounds for periods of nine years by public tender. The areas of land concerned may not be smaller than 200 hectares. The rent is either distributed among the various landowners in proportion to the cadastral area of their property or, where at least two-thirds of the owners, possessing at least two-thirds of the rented area, so decide, assigned to the municipality.
The owner of a piece of land larger than 25 hectares in a single block (5 hectares for lakes and ponds) may reserve his hunting rights, but where a qualified majority of the landowners have decided to assign the rent for hunting grounds to the municipality he must pay the municipality a contribution proportional to the size of the holding concerned. Several landowners may not pool their land to make up the statutory minimum areas. The law does not apply to plots of land enclosed by a fence preventing any communication with neighbouring land.
41. In the other départements the applicable rules are laid down by Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, which provides for the creation of approved municipal and inter-municipality hunters’ associations (“ACCAs” and “AICAs”).
ACCAs, which are subject to the ordinary law on associations (the Law of 1 July 1901) and the special provisions of the Loi Verdeille (codified as Articles L. 222-2 et seq. of the Countryside Code) and the regulatory provisions codified as Articles R. 222-1 et seq. of the Countryside Code, pool the hunting grounds within their municipalities. Their statutory object is to “encourage, on their hunting grounds, an increase in game stocks, the destruction of vermin and the prevention of poaching, to instruct their members in how to hunt without interfering with property rights or crops and in general to improve the technical organisation of hunting so that the sport can be practised in a more satisfactory manner” (Article L. 222.2 of the Countryside Code).
42. There may not be more than one ACCA in a municipality, but two or more ACCAs in the same département may set up an AICA (Articles L. 222-22 and R. 222-70 et seq. of the Countryside Code).
43. The creation of an ACCA is mandatory only in certain départements named on a list drawn up by the Minister responsible for hunting, on a proposal by the prefect of the relevant département, supported by the département council, and after prior consultation of the Chamber of Agriculture and the Hunters’ Federation in that département (Article L. 2226 of the Countryside Code). Twenty-nine of the 93 metropolitan départements other than Bas-Rhin, Haut-Rhin and Moselle are concerned, including Creuse and Gironde.
In the remainder of these 93 départements the prefect draws up a list of municipalities where an ACCA is to be set up. His 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. 222-7 of the Countryside Code). On 28 February 1996 ACCAs were thus set up in 851 municipalities in 39 different départements, including 53 of the 555 municipalities in Dordogne.
44. Altogether, ACCAs have been set up in approximately 10,000 municipalities out of some 36,000 in metropolitan France.
45. In the municipalities concerned the prefect must organise a public inquiry to determine “the properties in respect of which hunting rights are to be transferred to the municipal hunters’ association by the owners of such properties or such rights” (Articles L. 222-8, L. 222-9 and R. 222-17 et seq. of the Countryside Code).
Article L. 222-9 of the Countryside Code provides:
“Such transfers shall be automatically deemed to have been made for a renewable period of six years upon a request from the municipal association provided that, within three months from the date on which the notice of formation of the association is posted at the town hall and sent to each landowner or owner of hunting rights fulfilling the conditions laid down in Article L. 222-13 by recorded delivery letter with a prepaid acknowledgement of receipt form, the landowner or owner of hunting rights does not inform the mayor by recorded delivery letter with a prepaid acknowledgement of receipt form that he objects to such a transfer, and on what grounds.”
46. Article L. 222-10 of the Countryside Code provides:
“A municipal hunters’ association may hunt on lands other than those:
1. within a radius of 150 metres of any dwelling;
2. enclosed by a fence as defined in Article L. 224-3 of the Countryside Code [‘continuous and unbroken, forming an obstacle to any communication with neighbouring properties and incapable of being breached by game animals or by human beings’];
3. forming an uninterrupted area greater than the minimum area referred to in Article L. 222-13 and in relation to which the owners of the land or of the hunting rights have filed objections; or
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.”
47. The owners of land or hunting rights – or groups of owners – may object, where certain conditions are satisfied, to the inclusion of their hunting grounds in those of the ACCA. Article L. 222-13 of the Countryside Code provides:
“In order to be admissible, an objection ... by owners of land or hunting rights must relate to at least 20 hectares of land in a single block.
That minimum shall be lowered in respect of waterfowl shooting
1. to 3 hectares for undrained marshland;
2. to 1 hectare for isolated ponds;
3. to 50 ares for ponds where, on 1 September 1963, there were fixed installations, shelters or hides.
The minimum shall be lowered in respect of hunting for birds of the family Colombidae to 1 hectare for land where, on 1 September 1963, there were fixed structures used for that purpose.
The minimum shall be raised to 100 hectares for land in mountain areas above the tree-line.
Orders made for each département under the conditions laid down in Article L. 2226 may increase the minimum areas thus defined. These increases may not bring the new figure to more than twice the minimum laid down above.”
In départements where creation of an ACCA is mandatory the minimum areas may be tripled by a ministerial order (Conseil d’Etat, 15 October 1990, de Viry and Others, RFDA 6 (6), November-December 1990, p. 1100).
48. Article L. 222-14 of the Countryside Code adds:
“Any owner of land or hunting rights who has filed an objection shall pay all taxes and levies which may be due in relation to private hunting grounds, see to the keeping of the land, take steps to destroy vermin there and put up signs on the boundaries of the land indicating its status. If a landowner so requests, a hunters’ federation must act as warden in relation to the land.”
49. Where the owner of land or of hunting rights over land of an area greater than the minimum referred to in Article L. 222-13 of the Countryside Code wishes to leave an ACCA, he may do so only on expiry of one of the six-year periods and on two years’ notice. The ACCA is then entitled to ask him to pay a sum of compensation to be determined by the relevant court and corresponding to the value of any improvements the ACCA has made (Article L. 222-17 of the Countryside Code).
Where the owner of land smaller than the minimum area mentioned above subsequently acquires further pieces of contiguous land forming with the first piece of land a single block larger than the minimum, he is entitled to ask for the property thus formed to be removed from the ACCA’s hunting grounds (Article R. 222-54 of the Countryside Code). Owners of land and/or hunting rights may not combine with each other to obtain the right to withdraw from an ACCA (Conseil d’Etat, 7 July 1978, Sieur de Vauxmoret, Recueil Lebon, p. 295).
50. Articles L. 222-15 and L. 222-16 of the Countryside Code provide respectively:
“The transfer of hunting rights by a landowner or owner of hunting rights shall extinguish any other hunting rights unless the parties have agreed otherwise.”
“Transfer entitles the landowner to be compensated by the association if he suffers any loss of profits caused by deprivation of a previous source of income.
The amount of compensation shall be fixed by the competent court, as shall the sum owed by the association to an owner of hunting rights who has made improvements to the land over which he possesses the right to hunt.”
51. Article L. 222-19 provides:
“The constitution of each association shall provide that any person holding a valid hunting licence may join provided that he:
1. is domiciled in the municipality or has a residence there in respect of which, for the fourth year in succession at the time of his admission, without interruption, he appears on the list of persons liable to pay one of the four forms of direct taxation; or
2. owns land or hunting rights and has transferred his hunting rights; in this case, the spouse, ascendants and descendants of such person may also join; or
3. holds land under an agricultural tenancy where the owner of the land has transferred his hunting rights.
The constitution shall also lay down the minimum number of members required for the association to exist and the minimum percentage of such members who may be hunters not falling within any of the above categories.
A landowner who does not hunt shall be a member of the association automatically and free of charge and shall not be liable to contribute to making up any deficit which the association may have.”
52. Members of an ACCA are entitled to hunt throughout the association’s hunting grounds, in accordance with its internal rules (Article L. 222-20 of the Countryside Code).
53. An association is approved by order of the prefect after he has verified that it has complied with the procedural requirements and that its constitution and internal rules are compatible with the statutory rules (Articles L. 222-3 and R. 222-39 of the Countryside Code).
The prefect acts as a supervisory authority for the ACCAs. Any changes to the constitution, the internal rules or the hunting regulations must be submitted to him for his approval (Article R. 222-2 of the Countryside Code). Article R. 222-3 further provides that the prefect may issue an order for temporary measures, or even dissolve and replace the executive committee of an ACCA if it has breached any of its obligations under Articles R. 222-1 to R. 222-81.
54. Law no. 56-236 of 5 March 1956, codified first as Article 373-1 and then as Article L. 222-25 of the Countryside Code, introduced the mandatory creation of game reserves. The Minister responsible for hunting had power to draw up, on a proposal by the hunters’ federation of each département, the list of départements where municipal game reserves could be created.
On a proposal by the hunters’ federation of each département, and after prior consultation of the municipal council, the council of the département and the Chamber of Agriculture, a ministerial order could establish, for each of these départements, a list of the municipalities in which creation of a game reserve was compulsory, with an indication of the minimum areas of such reserves. Subject to the exceptions set out in the fifth sub-paragraph of Article 373-1 of the Countryside Code, hunting is prohibited inside these reserves.
55. The Loi Verdeille requires ACCAs and AICAs to create one or more municipal or inter-municipality game reserves. The area of these reserves must be at least one-tenth of the total area of the association’s hunting grounds. The list of the pieces of land forming the reserve, as identified in Land Registry records, must be approved by the prefect. They must be set up “in parts of the hunting grounds suited to the species of game to be protected and established in such a manner as to ensure respect for property, crops and various kinds of cultivated plants” (Articles L. 22221, R. 222-66 and R. 222-67 of the Countryside Code).
56. In the new version, as amended by Law no. 90-85 of 23 January 1990, Article L. 222-25 provides:
“The conditions for setting up and operating game reserves shall be laid down by a decree of the Conseil d’Etat. This shall determine in particular the conditions for deciding what measures should be adopted to prevent prejudice to human activities, encourage the protection of game and its habitats and maintain biological equilibrium.”
57. Decree no. 91-971 of 23 September 1991 (Official Gazette of 24 September 1991) introduced “game and wildlife reserves” and amended Articles R. 222-82 to R. 222-92 and R. 222-65 of the Countryside Code.
The new Article R. 222-65 states that ACCA reserves are subject to the provisions of Articles R. 222-82 to R. 222-92 of the Countryside Code.
Article 4 of the decree further states that game reserves approved by the State before its entry into force are now governed by Articles R. 222-85 to R. 222-92 of the Countryside Code.
58. Game and wildlife reserves are set up by the prefect (Article R. 222-82 of the Countryside Code) either of his own motion, “where it appears necessary to lend support to large-scale game protection and management projects carried out in the general interest” (Article R. 222-84 of the Countryside Code), or on an application by the owner of the hunting rights (Article R. 222-83 of the Countryside Code); if the prefect refuses, he must give reasons for his decision (ibid.).
A prefect may close down a game and wildlife reserve at any time, on general-interest grounds or on an application by the owner of the hunting rights, particularly at the end of each six-year period after the reserve’s creation. If he refuses such an application, he must give reasons for his decision (Article R. 222-85 of the Countryside Code).
59. All hunting is prohibited in a game and wildlife reserve. The order setting up the reserve may however provide for the possibility of implementing a hunting plan where that is necessary in order to maintain biological equilibrium and a balance between hunting, agriculture and forestry. In that case, implementation of the plan must then be authorised each year by the order assigning the quotas (Article R. 222-86 of the Countryside Code). Moreover, the capture of game species for scientific purposes or for the purpose of restocking may be authorised under the conditions laid down by ordinary law (Article 222-87 of the Countryside Code). Other activities likely to disturb game or threaten its habitat may be regulated or prohibited (Articles R. 222-89 to R. 222-91).
60. Article L. 242-1 of the Countryside Code provides:
“Parts of the territory of one or more municipalities may be designated as a nature reserve where conservation of flora and fauna, the soil, water, deposits of minerals or fossils and the natural environment in general is particularly important or where it is necessary to protect them from any form of artificial intervention which might damage them. Designation may affect maritime public property and French territorial waters.”
The most important factors to be taken into consideration for this purpose are: preservation of animal or plant species or habitats threatened with extinction in all or part of the national territory or possessing unusual features; re-establishment of animal or plant populations or their habitats; conservation of botanical gardens and arboreta which form reserves for rare and unusual plants or species threatened with extinction; preservation of biotopes and unusual geological, geomorphological or speleological formations; and preservation or establishment of intermediate destinations on the major migration routes of wild fauna.
61. A designation decision is made by decree, after all the local authorities concerned have been consulted. Where the landowner’s consent is withheld, the reserve is designated by a decree of the Conseil d’Etat (Article L. 242-2 of the Countryside Code). The designation procedure, which is set in motion by the Minister responsible for the protection of nature, is laid down in Articles R. 242-1 to R. 242-18 of the Countryside Code.
By 23 September 1998, 144 nature reserves had been set up under this procedure.
62. Article L. 242-11 of the Countryside Code provides:
“In order to protect species of wild flora and fauna of scientific and ecological interest occurring on private property, landowners may apply for any such property to be approved as a voluntary nature reserve by the administrative authorities, in consultation with the local authorities concerned.”
63. An application for approval must be sent to the prefect by the landowner, accompanied by a file containing, inter alia, the following documents (Article R. 242-26 of the Countryside Code): a letter setting out the aim and scope of the project, and the reasons for it; a report by a qualified person demonstrating a particular scientific and ecological interest which would be served by implementing the project; a list of acts or activities considered to endanger the preservation of the species of scientific and ecological interest and a list of the conservation measures, whether permanent or temporary, which the applicant wishes to have taken; and details of the arrangements the landowner intends to make for surveillance of the reserve and of the facilities and improvements required to protect it.
The prefect submits the file for opinion to the municipal council or councils concerned, to the approved municipal hunters’ association – or, where there is none, the Hunters’ Federation of the relevant département – if there has been a request for the prohibition or regulation of hunting inside the reserve, and to the Countryside Commission of the département, sitting as a nature-protection authority (Article 242-27 of the Countryside Code).
64. The decision is taken by the prefect. Where necessary, the decision signifying his approval specifies the boundaries of the reserve, the nature of the conservation measures to be implemented there and the landowner’s obligations as regards its surveillance and protection (Article R. 242-28 of the Countryside Code).
65. Approval is given for a period of six years, is renewable by tacit consent and may be revoked at the end of each six-year period if the landowner submits a request to that effect beforehand (Article R. 242-31 of the Countryside Code).
By 7 September 1988, 129 nature reserves had been set up under this procedure.
VIOLATED_ARTICLES: 11
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VIOLATED_PARAGRAPHS: P1-1