Décision contentieuse

Conseil d'État requests an advisory opinion from the European Court of Human Rights for the first time

For the first time, the Conseil d'État requested an advisory opinion from the European Court of Human Rights (ECHR), pursuant to Protocol No. 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In this request, the Conseil d'État asks the ECHR about the relevant criteria for assessing the compatibility with the European Convention of a legislative provision relating to hunting, which limits the possibility for owners' associations to withdraw their land from the territory of an approved municipal hunting association (ACCA).

Protocol No. 16 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force on 1 August 2018, allows the highest courts of the signatory states to submit requests to the European Court of Human Rights for advisory opinions on questions of principle concerning the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

With today's decision, the Conseil d'État made use of this possibility for the first time and requested an advisory opinion from the Court. 

Only owners' associations that existed at the date of creation of an ACCA may subsequently withdraw from its territory

This request for an advisory opinion concerns the relevant criteria for assessing the compliance with Article 14 of the Convention (prohibition of discrimination) and Article 1 of the First Additional Protocol (right to respect for property) of Article L. 422-18 of the Environment Code, relating to withdrawal from the territory of an ACCA, in the version recently amended by Law No. 2019-773 of 24 July 2019.

Established by the Verdeille Act of 1964, the ACCAs in certain communes are obliged to group together all the land located within the commune's territory for the exercise of hunting rights. However, the law allows certain owners to request that their land not be included in the territory of the ACCA, either when it is created or by withdrawing it later. This option is subject to the condition that the land in question is of a certain size, to ensure good hunting and game management.

The withdrawal of land from the territory of the ACCA after its creation is permitted to an individual owner who owns a sufficiently large plot of land. On the other hand, since the law of 24 July 2019, this right of withdrawal is only open to an association of several owners pooling their territories when the existence of the association was recognised when the ACCA was created.

In order to judge the legality of a decree implementing the Act of 24 July 2019 that was challenged before it, the Conseil d'État had to determine whether this difference in treatment, depending on whether or not the association existed on the date the ACCA was created, respected the right to respect for property and the prohibition of discrimination guaranteed by the European Convention on Human Rights. It is with regard to this issue, which concerns French legislation but is also of interest to the other European States that have legislation on hunting similar to that of France, that it sought the advisory opinion of the European Court of Human Rights under Protocol No. 16.




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