CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;OPINIONS;ENG — 13 juillet 2022

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P16-2021-002 13.7.2022 [GC] Legal summary A rticle   14 Discrimination (Article   1 of Protocol No.   1) 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 Background and questions – The question put to the Court arose in the context of proceedings pending before the Conseil d’État , to which an application had been made by a federation of owners of private forest land following a 2019 legislative amendment. For those landowners who formed associations after the date on which an approved municipal hunters’ association (ACCA) was created in their municipality, the amendment in question makes it impossible to recover exclusive hunting rights over their land, which they had lost when the land was transferred to the ACCAs, but their property rights are otherwise unaffected. The ACCAs were created by a 1964 law known as the “Loi Verdeille” with a view to curbing the practice of so-called “public” hunting ( chasse banale ), carried out on land belonging to others by virtue of assumed authorisation; this practice had resulted in a decline in the population figures for certain animal species, extensive damage to crops and ecosystems and an increase in the number of hunting accidents. In the applicant federation’s submission, the temporal distinction between landowners’ groups which had been formed prior to or after the creation of the corresponding ACCA was disproportionate and in breach of Article   14 of the Convention taken together with Article   1 of Protocol No.   1. The federation contended that the aim put forward by the legislature to justify the difference in treatment, namely that of preventing destabilisation of the existing ACCAs, could have been attained by other means. Against that background, the Conseil d’État asked the Court for an advisory opinion on the following question: “What are the relevant criteria for assessing whether a legally established difference in treatment ... 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?” Opinion – 1. Preliminary considerations – (a)     The Conseil d’État would have to examine two questions before replying to the question whether or not the difference in treatment in issue was compatible with Article   14 taken in conjunction with Article   1 of Protocol No.   1 – The temporal criterion in the present case referred indirectly to the criterion of the size of the landholding, in other words that of immovable “property”, which was a ground of discrimination expressly prohibited by Article   14. Had the landowners who had formed associations after the creation of the ACCA in their municipality been owners, 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. The Court had already found that Article   14, in conjunction with Article   1 of Protocol No.   1, was applicable to differences in treatment based on that ground ( Chabauty v.   France [GC] and Chassagnou and Others v.   France   [GC]). Accordingly, a difference in treatment based on the date of the establishment of a legal entity (whether earlier or subsequent to the creation an ACCA) could not in principle be excluded from the scope of Article   14 taken in conjunction with Article   1 of Protocol No.   1. (b)     Criteria for determining whether the difference in treatment concerned persons in analogous or relatively similar situations – In the proceedings before the Conseil d’État the applicant federation had not substantiated the reasons why it considered that the alleged difference in treatment concerned analogous or relevantly similar situations. A national court could require the person alleging that he or she had been subjected to discriminatory treatment contrary to Article   14 to demonstrate that, having regard to the particular nature of his or her complaint, he or she had been in an analogous or relevantly similar situation to other persons who had been treated more favourably. It was for that person to gather, in so far as possible, appropriate information concerning both his or her personal situation and the legal regime applicable to the situation in issue. Those elements had to be assessed in the light of the subject matter and purpose of the measure which made the distinction in question and the context in which it had been imposed. Such an assessment had to be based on elements of an objective and verifiable nature. It was necessary to consider situations in their totality and to avoid singling out marginal aspects, which would lead to an artificial analysis. Given that the existence of an “analogous situation” did not require that the comparator groups be identical, it was appropriate to establish whether the two categories identified in the present case, although in apparently different situations, did not, with regard to the complaint raised, bear similarities which would outweigh their differences, such as, for example, the fact that the landowners who were members of both the ACCAs and the landowners’ associations and were themselves hunters pooled their landholdings for the benefit of an association, thus enabling the other members of that association to hunt on their land. Lastly, concerning the weight to be attached to the aim pursued by the legislature when it enacted a measure giving rise to a difference in treatment, 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, that provision could be deprived of its substance, in that it would then suffice for a State to introduce 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 those situations were compatible with the Convention. Nonetheless, the criterion of the legislature’s aim remained fully pertinent at the stage of analysing whether there was a “legitimate and reasonable” justification for the difference in treatment. 2. Relevant criteria for assessing the justification of the difference in treatment – (a)     Whether one or more “legitimate aims” were pursued – It was in the light of all the above elements of national law that it was appropriate to identify the aims pursued by the contested difference in treatment which could be regarded as “legitimate” under Article   14, bearing in mind that that Article   did not contain an exhaustive list of aims to be recognised as “legitimate”. The notion of “general interest” within the meaning of the second paragraph of Article   1 of Protocol No.   1 was necessarily extensive. The right to hunt on one’s own land, or on land belonging to others, was not as such protected by any provision of the Convention or the Protocols thereto. In contrast, environmental protection, in the wide sense, and, in that context, the more specific protection of the countryside and forests, endangered species, biological resources, heritage or public health, were, for their part, included among the aims regarded to date as relating to the “general interest” for the purposes of the Convention. Although none of the Articles of the Convention was specifically designed to provide general protection of the environment, the responsibility of the public authorities in that 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 were not entirely ineffective. The Court had previously dealt with the question of the ACCAs by recognising and specifying the general interest in grouping together hunting grounds within them ( Chassagnou and Others , Chabauty, Baudinière and Vauzelle v.   France (dec.), and ASPAS and Lasgrezas v.   France ). (b)     Whether there was a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” – (i)     Compliance with the requirement of lawfulness enshrined in Article   1 of Protocol No.   1 – When the 2019 Law entered into force, the judicial proceedings in the present case had not yet begun. The only question which could therefore arise was whether the entry into force of the Law, assuming that it had rendered ineffective a final judicial decision in a previous dispute in which the outcome had been favourable to the applicant federation’s interests, breached the requirement of lawfulness enshrined in Article   1 of Protocol No.   1, and the principle of the rule of law inherent in all of the Articles of the Convention. The Court had never found a violation of any of the rights guaranteed by the Convention or the Protocols thereto when it had examined parliamentary legislative intervention affecting a future dispute which had not yet been submitted to the courts when the law in question had been enacted, or legislative intervention performed “on clear and compelling public-interest grounds” either to fill a legal vacuum or to establish and reaffirm Parliament’s original intention. Laws with retrospective effect which had been found to constitute legislative interference with the administration of justice had still been held to conform with the lawfulness requirement of Article   1 of Protocol No.   1. Measures to control the use of property which had been implemented to regulate retrospectively rights arising from existing laws had been held to be compatible with the requirement of lawfulness provided that the enactment of the legislative amendment in question had not been specifically aimed at influencing the outcome of the proceedings in a given case . (ii)     Criterion of “manifestly without reasonable foundation” – The 2019 law could be termed a means of controlling the use of property in accordance with the general interest ( Herrmann v.   German [GC] and Chassagnou and Others ). It was consequently 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 could be analysed. States had the right to control the use of property in accordance with the general interest by enacting such “laws” as they deemed necessary. The Court would respect the legislature’s judgment as to what was in the “public” or “general” interest unless that judgment was manifestly without reasonable foundation. The Court had already found that obliging only small landowners to pool their hunting grounds with the aim of promoting better management of game stocks was not in itself disproportionate. It had held that the provisions of the 1964 law were “the expression of a legitimate institutional wish” to avoid the proliferation of hunting entities and to ensure strict supervision of a leisure activity which could pose a danger to property and people and had a significant environmental impact. It had found “nothing unreasonable” in the Government’s assertion that the multiplication of such entities was likely to increase the risk of accidents inherent in that activity and concluded that the authorities could legitimately deem it necessary to place, in so far as possible, the organisation of hunting within the regulated framework of the existing ACCAs. (iii)     Nature of the criterion for the distinction established by law and its impact on the margin of appreciation enjoyed by the national authorities – The national authorities’ margin of appreciation in the present case was wide, for two reasons. The first related to the subject matter and the background to the measure introducing the difference in treatment. The Convention did not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals was treated differently from others, provided that the interference with the rights of the legally defined category or group as a whole could be justified under the Convention. The second related to the fact that the difference in treatment complained of in the proceedings before the Conseil d’État was based on the temporal criterion, which referred indirectly to the criterion of the size of the landholding, in other words on that of immovable “property”, and which had previously been found to justify a considerably wider margin of appreciation than if the distinction in question had 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. (iv)     Choice of the means employed to achieve the aim(s) sought to be realised and appropriateness of the means used in relation to the aim(s) sought – The question of whether or not the temporal criterion adopted by the legislature corresponded to the general-interest aim(s) pursued by the law was an essential element in the proportionality analysis. Measures of economic and social policy often involved the introduction and application of criteria based on making distinctions between categories or groups of individuals. The creation of a new scheme sometimes necessitated the introduction in domestic law of cut-off points which applied to large groups of people ( Maggio and Others v.   Italy ). 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. Under French law, the creation of an association was a rapid and relatively inexpensive matter, thus rendering plausible the risk that, following the development in the Conseil d’État ’s case-law, a multiplicity of associations 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 could be viewed as corresponding to the legislature’s wish to preserve the existing ACCAs. Alternative measures, less severe in their consequences for landowners who were subject to the compulsory transfer of hunting rights, could reasonably have been implemented by the authorities in pursuit of the public-interest aim sought. In any event, the possible existence of alternative solutions did not in itself render the means employed by the national legislature unjustified. Provided that it remained within the bounds of its margin of appreciation, and therefore that the measures chosen corresponded to the legitimate aims pursued by the law, it was not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislature’s discretion should have been exercised in another way. (v)     Impact of the means employed – The question arose whether the temporal distinction had imposed an individual and excessive burden on landowners’ associations set up after the ACCA. The Conseil d’État would have to take into account whether the effects of the measure at issue could be counterbalanced or at least mitigated by certain rights or advantages reserved for the members of associations formed after the corresponding ACCA, for example the fact that they continued to benefit from the advantages of their continued membership of the ACCA system, even if they were not entitled to withdraw from it. In Chabauty , the Court had found 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. Those arguments could continue to be relevant in assessing the proportionality of the difference in treatment introduced in 2019. In the absence of sufficient compensation to cover the – permanent or temporary – loss of a “tool of one’s trade” from which the owner concerned derived his or her livelihood or to enable it to be recreated following interference amounting to deprivation of possessions, the Court had frequently held that owners affected by such a measure had borne “an individual and excessive burden”, contrary to Article   1 of Protocol No.   1. In contrast, with regard to measures relating to “control of the use of property”, 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 had not prevented the Court from concluding that the fair balance required by Article   1 of Protocol No.   1 had not been upset. Under Article   1 of Protocol No.   1, the national authorities enjoyed 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, from among the different types of loss that such a measure could entail, those which could give rise to an entitlement to compensation. Conclusion : It was, inter alia , in the light of the above considerations that the Conseil d’État would have to determine whether or not the difference in treatment introduced by the legislative provision being challenged in the proceedings before it satisfied the requirement of proportionality and, accordingly, whether such a difference in treatment could be considered compatible with Article   14 taken in conjunction with Article   1 of Protocol No.   1. (See also Chassagnou and Others v.   France [GC], 25088/94 et al., 29   April 1999, Legal Summary ; Maggio and Others v.   Italie , 46286/09 et al., 31   May 2011, Legal Summary ; Herrmann v.   Germany [GC], 9300/07, 26   June 2012, Legal Summary ; Chabauty v.   France [GC], 57412/08, 4   October 2012, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes To access legal summaries in English or French click   here . 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