Avis consultatif relatif à la différence de traitement entre les associations de propriétaires « ayant une existence reconnue à la date de la création d’une association communale de chasse agrée » et les associations de propriétaires créées ultérieurement

• Opinion Number: P16-2021-002

GRAND CHAMBER

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

requested by
the French Conseil d’État

(Request no. P16-2021-002)

STRASBOURG

13 July 2022

This opinion is final. It may be subject to editorial revision.

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Robert Spano, President,

Síofra O’Leary,

Georges Ravarani,

Marko Bošnjak,

Gabriele Kucsko-Stadlmayer,

Yonko Grozev,

Pere Pastor Vilanova,

Pauliine Koskelo,

Lәtif Hüseynov,

Jovan Ilievski,

Jolien Schukking,

Lado Chanturia,

Erik Wennerström,

Raffaele Sabato,

Saadet Yüksel,

Anja Seibert-Fohr,

Mattias Guyomar, judges,

and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 30 March and 22 June 2022,

Delivers the following opinion, which was adopted on the last-mentioned date:

PROCEDURE

1. By a decision of 15 April 2021, sent by a letter of the same date, the French Conseil d’État requested the European Court of Human Rights (“the Court”), under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the question set out at paragraph 9 below.

2. On 31 May 2021 the panel of five judges of the Grand Chamber of the Court, composed in accordance with Article 2 § 3 of Protocol No. 16 and Rule 93 § 1 of the Rules of Court (“the Rules”), decided to accept the request.

3. The composition of the Grand Chamber was determined on 2 June 2021 in accordance with Rules 24 § 2 (g) and 94 § 1.

4. By letters of 14 June 2021 the Deputy Grand Chamber Registrar informed the parties (Forestiers Privés de France and the Ministry for Ecological Transition and Solidarity) and the third parties to the domestic proceedings (the Fédération nationale des chasseurs (the National Hunters’ Federation, hereafter the FNC) and the Association nationale des fédérations départementales et interdépartementales des chasseurs à associations communales et intercommunales de chasse agréées, hereafter the ANF‑ACCA-AICA) that the President of the Grand Chamber was inviting them to submit to the Court written observations on the request for an advisory opinion by 6 July 2021 (Article 3 of Protocol No. 16 and Rule 94 §§ 3 and 4). Within that time-limit, written observations were submitted jointly by the FNC and the ANF-ACCA-AICA. Following acceptance of a request for an extension to the time initially allowed, Forestiers Privés de France submitted written observations on 3 September 2021. After an exchange of these observations between the parties and the third parties to the domestic proceedings, the FNC and the ANF-ACCA-AICA submitted joint observations in reply on 14 October 2021.

5. On 30 August 2021 the French Government (“the Government”) submitted written observations under Article 3 of Protocol No. 16. The Commissioner for Human Rights of the Council of Europe did not avail herself of that right.

6. Copies of the observations received were transmitted to the Conseil d’État, which made no comments on them (Rule 94 § 6).

7. By a letter of 16 August 2021, the Conseil d’État informed the Court that the 6th section of the Judicial Division of the Conseil d’État, on a request by the Poitiers Administrative Court in the case of Association de chasse des propriétaires libres (no. 452327), had transmitted to the Constitutional Council, by a decision of 4 August 2021, a request for a preliminary ruling on constitutionality raising a question similar to that which had given rise to the present request for an advisory opinion. Following receipt of that information, examination of the Conseil d’État’s request for an advisory opinion was suspended and was subsequently resumed on 4 November 2021, the date on which the Constitutional Council issued its decision on the request for a preliminary ruling on constitutionality submitted to it (see paragraph 24 below).

8. After the close of the written procedure, the President of the Grand Chamber decided that no oral hearing should be held (Rule 94 § 6).

THE QUESTION ASKED

9. The question put to the Court by the Conseil d’État in Article 2 of the operative provisions of its decision of 15 April 2021 was worded as follows:

“What are the relevant criteria for assessing whether a legally established difference in treatment, as described in point 13 of the present decision, 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?”

10. Point 13 of the decision of 15 April 2021 (to which the question asked by the Conseil d’État refers) is worded as follows:

“It follows from Article L. 422-18 of the Environment Code as worded subsequent to the Law of 24 July 2019 that, in addition to landowners or holders of hunting rights over land in a single block of land attaining or greater than the minimum surface area resulting from Article L. 422-13 of this Code, only those landowners’ associations which had a recognised existence prior to the date of creation of the АССА are entitled to withdraw from it, provided that they pool plots of land with a total area meeting the condition laid down in Article L. 422-13; comparable associations created after that date are deprived of that right, even where they bring together plots of land with a total area meeting the condition laid down in Article L. 422-13.”

11. Point no. 16 of the Conseil d’État’s decision of 15 April 2021 clarifies the “question of principle” which, in its view, arises under Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1:

“16. The present dispute thus raises a question as to which criteria should be used in assessing a difference of treatment that is established by law, such as that set out in point 13 ..., in order to assess, in particular, whether the general-interest ground intended to ensure better regulation of hunting can justify reserving the possibility of withdrawal from an approved municipal hunters’ association, as regards...