The state may limit the enjoyment of property in public interest. There are almost innumerable forms of limitation of property rights. For instance, the state may, for planning reasons or for safety reasons, limit the freedom to build houses and impose speed limits on driving.

In Chassagnou et al. v. France, all the applicants were owners of landholdings smaller than 20 hectares in area in the case of those who live in Dordogne and Gironde or 60 hectares in the case of those who live in Creuse. Pursuant to the Law of 10 July 1964, known as the ‘Loi Verdeille’, on the organisation of approved municipal or inter-municipality hunters’ associations (ACCAs and AICAs), all the applicants, who are opposed to hunting, had to become members of the ACCAs set up in their municipalities and to transfer their hunting rights over their land to these associations so that all hunters living in the relevant municipality could hunt there. They could not evade the obligation to join the association and transfer their hunting rights to the association unless the area of their land exceeded a given threshold, which varied from one département to another (20 hectares in Dordogne and Gironde and 60 hectares in Creuse). The applicants applied to the French courts to have their land removed from the hunting grounds of the ACCAs of their municipalities, but their applications were dismissed in both the civil and the administrative courts. The applicants complained that the compulsory inclusion of their land in the hunting grounds of the ACCAs in question and the obligation to join an association of whose aims they disapproved of, had violated, inter alia, their right of property.

Chassagnou et al. v. France

European Court of Human Rights

Applications Nos. 25088/94, 28331/95 and 28443/95

Judgement of 29 April 1999

Keywords: property - non-discrimination - thought, conscience and religion - assembly - public interest

[?]

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1, TAKEN SEPARATELY

[?]

A. Applicability of Article 1 of Protocol No. 1

71. Those appearing before the Court agreed that the compulsory transfer of hunting rights over land to an ACCA pursuant to the Loi Verdeille was to be analysed in the light of the second paragraph of Article 1 of Protocol No. 1, which reserved to States the right to enact such laws as they deemed necessary to control the use of property in accordance with the general interest. They disagreed on the other hand as to whether there had actually been an interference with the applicants’ right to use their property.

[?]

74. The Court notes that, although the applicants have not been deprived of their right to use their property, to lease it or to sell it, the compulsory transfer of the hunting rights over their land to an ACCA prevents them from making use of the right to hunt, which is directly linked to the right of property, as they see fit. In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants’ enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case.

B. Compliance with the conditions laid down in the second paragraph

75. It is well-established case-law that the second paragraph of Article 1 of Protocol No. 1 must be construed in the light of the principle laid down in the first sentence of the Article. Consequently, an interference must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see the Fredin v. Sweden no. 1 judgment of 18 February 1991, Series A no. 192, p. 17,§ 51).

1. Aim of the interference

76. The applicants disputed the legitimacy of the aim of the Loi Verdeille. They submitted that it had not been enacted in the general interest but only for the benefit of a specific category of people, namely hunters, since the law itself stated that the aim of the ACCAs was “to improve the technical organisation of hunting so that the sport [could] be practised in a more satisfactory manner”.

The law contemplated wild fauna only in the form of “game”, in other words those species which were traditionally hunted. As for the destruction of vermin, which the creation of the ACCAs was also supposed to promote, the applicants submitted that, even where an ACCA had been set up, the right to destroy vermin was the exclusive prerogative of landowners, persons in possession or tenant farmers and could only be delegated, if necessary, to an ACCA.

2. Proportionality of the interference [?]

82. The Court considers that none of the options mentioned by the Government would in practice have been capable of absolving the applicants from the statutory obligation to transfer hunting rights over their land to ACCAs. It notes in particular that the fence referred to in Article 224-3 must be continuous, unbroken and incapable of being breached by game animals or human beings, which presupposes that it must be of a certain height and strength. The applicants could not be required to incur considerable expense in order to avoid the obligation to transfer the hunting rights over their land to the ACCAs. Such a requirement seems all the more unreasonable because the financial viability of using the land in question, apart from Mrs Montion’s property, for agricultural purposes would to a large extent be jeopardised by the erection of such a fence.

As to the assertion that it was open to the applicants to ask for their land to be included in a game reserve or nature reserve, the Court notes that neither the ACCAs, nor the Minister nor the prefect are required to grant such requests from private individuals, as shown by the refusals of the applicants’ requests in the present case (see paragraphs 18, 24 and 24-30 above). Lastly, it can be seen from the provisions relating to nature reserves (see paragraphs 60 and 62 above) that the applicants could not claim to satisfy the specific conditions for designation.

With regard to the various forms of statutory consideration mentioned by the Government, the Court takes the view that these cannot be considered to represent fair compensation for loss of the right of use. It is clear that it was intended in the Loi Verdeille of 1964 for each landowner subject to compulsory transfer to be compensated for deprivation of the exclusive right to hunt on his land by the concomitant right to hunt throughout those parts of the municipality’s territory under ACCA control. However, that compensation is valuable only in so far as all the landowners concerned are hunters or accept hunting. But the 1964 Act does not contemplate any measure of compensation for landowners opposed to hunting, who, by definition, do not wish to derive any advantage or profit from a right to hunt which they refuse to exercise. Similarly, compensation for the loss of profits caused by deprivation of a previous source of income concerns only landowners who, before the creation of an ACCA in their municipality, derived income from exercise of their hunting rights, by renting them out for example; this did not apply to the applicants in the present case.

As they are all owners of properties smaller than the minimum areas required for a valid objection (see paragraph 47 above), the applicants could not therefore avoid the compulsory transfer of the hunting rights over their land to the ACCAs of their municipalities.

83. However, such compulsory transfer is an exception to the general principle laid down by Article 544 of the Civil Code, which provides that ownership means the right to enjoy and dispose of things in the most absolute manner, provided that one does not use them in a way prohibited by law. The compulsory transfer of the right to hunt, which in French law is one of the attributes of the right of property, also derogates from the principle laid down by Article L. 222-1 of the Countryside Code, according to which no one may hunt on land belonging to another without the owner’s consent. The Court further notes that under Article R. 228-1 breaches of that rule are punishable by the penalties laid down for Class 5 offences. Lastly, it should be noted that in French law (Article R. 227-7) landowners bear personal responsibility for the destruction of vermin, and that this responsibility, if necessary, may only be delegated in writing to an ACCA, or to any other person of the owner’s choice.

84. The Court further observes that, following the adoption in 1964 of the Loi Verdeille, which excluded from the outset the départements of Bas-Rhin, Haut-Rhin and Moselle, only 29 of the 93 départements concerned in metropolitan France have been made subject to the regime of compulsory creation of ACCAs, that ACCAs have been voluntarily set up in only 851 municipalities and that the Law applies only to landholdings less than 20 hectares in area, to the exclusion of both large private estates and State land (see paragraph 46 above).

85. In conclusion, notwithstanding the legitimate aims of the Loi Verdeille when it was adopted, the Court considers that the result of the compulsory-transfer system which it lays down has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1. There has therefore been a violation of that provision.

[?]

FOR THESE REASONS THE COURT

1. Holds by twelve votes to five that there has been a breach of Article 1 of Protocol No. 1 to the Convention [?];

[?]

Comment

The European Court of Human Rights deals in this case with the issue of limitations. This is an interesting example of a case in which limitation proved to be unjustified by creating a disproportionate burden on the individual. Until the end of the 1990s, it was assumed that only cases of deprivation would create a disproportionate burden on individuals (unless adequate compensation was paid). Moreover, the case is interesting since the conclusion that a violation had occurred led not only to award of pecuniary damage but also of non-pecuniary damage. One is inclined to assume that limitation of property rights, given the often monetary nature of property rights, would justify pecuniary damages only. Here we have an example, which shows that property has substantial non-pecuniary implications as well. Interesting as well is the extensive research into the history of the case. Hunting has deep roots in several European countries, including France. Apparently, the weight of history is seen as important in the examination of the question whether the interference with hunting was justified.

Here again is a case where the applicants, limited in number, represent in fact a much larger number of possibly hundreds or thousands of property owners who resent large scale hunting on their property by others, but have so far tolerated the game. Compliance of the state concerned may not only imply change in legislation, but also effective implementation and even in some cases compensation.

The Inter-American Convention does not contain a specific provision on the limitations of property rights, but indicates that the use and enjoyment of property rights may be subordinated to the interest of society. The  African Charter uses a different term, encroachment, which may be seen as a term comparable to interference.