partly concurring and partly DISSENTING OPINION OF JUDGE caflisch joined by JUDGE Panţîru

( Translation )

Like the majority of the Court, I consider that there have been violations of Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, and of Article 11, likewise read in conjunction with Article 14. On the other hand, I have difficulty finding a violation of Article 1 of Protocol No. 1 or Article 11 of the Convention taken separately.

Under Article 1 of Protocol No. 1, an interference with the use of property, which is in principle incompatible with the Convention, may nevertheless be justified if it is “necessary to control the use of property in accordance with the general interest”. There must also be a reasonable relationship of proportionality between the measure concerned and the objective pursued.

In the present case the legislation complained of has three objectives, namely, to regulate a leisure activity which, if left unregulated, would present a real danger, to democratise hunting and to set up a system for the rational and effective management of game stocks, thus also ensuring the protection of the environment.

The questions which arise next are whether the interference with property resulting from the Loi Verdeille is necessary to regulate hunting in accordance with the general interest and whether that interference is reasonably proportionate to the objectives listed above. Considering those questions is not necessarily a matter of determining whether the respondent State could have achieved its aim by different measures, by giving the authorities the exclusive power to issue hunting licences, for example, since the State enjoys a certain margin of appreciation.

In the case of Mellacher and Others v. Austria the Court held: “[T]he legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures” (see the judgment of 19 December 1989, Series A no. 169, pp. 25-27, §§ 45-47). The Court therefore respects the judgment of the national legislature “unless that judgment be manifestly without reasonable foundation”, that is where there is no “fair balance” between the general interest and the need to protect individual rights, i.e. where no reasonable relationship of proportionality exists between the means employed and the aim pursued (ibid., p. 27, § 48). It is true that the Mellacher judgment, which also bore on the interpretation of Article 1 of Protocol No. 1, dealt with a subject which was somewhat different from the one considered in the

present case, namely a reduction in rent effected by law to the detriment of landlords. However, the principles set out in Mellacher are formulated very broadly and therefore seem to be generally applicable.

Quite obviously the criteria used by the Court to determine whether, in a given case, a State has infringed the freedom guaranteed by Article 1 of Protocol No. 1 – through a “manifestly unreasonable” judgment on the part of the legislature and the lack of a “fair balance” and a “reasonable relationship of proportionality” – involve a considerable degree of subjectivity; it could hardly be otherwise. Thus one may take the view, unlike the majority of the Court, that there has been no breach of the Article in question, taken separately, because of the importance of the objective pursued by the Loi Verdeille, which goes beyond the mere regulation of a leisure activity, having economic and ecological aspects, because of the margin of appreciation left to the Government in the choice of means to attain that objective and because of the absence of any obvious disproportion between the objective concerned and the means adopted to attain it.

It remains to be seen whether there has been a violation of Article 1 of Protocol No. 1 taken together with Article 14 of the Convention, which prohibits discrimination. The Loi Verdeille distinguishes between large and small landowners. Large landowners are not obliged to surrender their rights to an approved municipal hunters ’ association (“ACCA”) and are entitled to control hunting on their property individually, whereas small landowners lose their exclusive right to hunt on their own land. In addition, for months at a time they have to tolerate other members of their ACCA hunting there, which considerably impairs their right of property and creates an undoubted danger.

According to the Court ’ s case-law (see the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, § 31, and the case-law cited therein; see also the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 186, § 39, and the case-law cited therein), treatment is discriminatory only where it does not pursue a “legitimate aim” and where there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised”, especially in situations where it is uncertain whether the discrimination is even useful. This seems to be the case here. The Government have not shown that the discrimination imposed is even useful for the purpose of achieving the aim pursued. On the contrary. The French parliament requires small landowners to make considerable sacrifices, which they can avoid only with great difficulty. On the other hand, it leaves it up to large landowners to preserve game stocks on their own land without restricting their property rights in any way (Article L. 222-14 of the Countryside Code); the duties it imposes on them are both undemanding and vague, a fact which, moreover, casts doubt on the effectiveness of the Law as a whole. What is more, it is hard to see how and why landholdings larger than 20 hectares in area could be effectively managed by their owners whereas the opposite is true of smaller areas. It is therefore difficult to argue that there is a reasonable relationship of proportionality in a situation where considerable sacrifices are imposed on some landowners but not on others, especially when the discriminatory system thus established is not, in the final analysis, as effective as desired. The system would perhaps work better if it were applicable to all owners, large and small, and if its geographical scope were more extensive. In the absence of a reasonable relationship of proportionality between the aim pursued and the discriminatory mechanism instituted by the Loi Verdeille, one should conclude, as the Court has done, that there has been a violation of Article 1 of Protocol No. 1 taken together with Article 14 of the Convention.

The issue of the violation of Article 11 of the Convention presents itself in a similar way. Restrictions on the right set forth in that provision, which also protects the negative freedom of association (see the Sigurður A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15 ‑ 17, §§ 35-37), are allowed by its second paragraph. The Government argued that although the obligation for some landowners to join ACCAs did indeed amount to an interference by the State with the freedom of association, the aim of this interference was the “protection of the rights and freedoms of others” (Article 11 § 2 of the Convention) and that it accordingly constituted a legitimate restriction.

The objectives of the system set up by the Loi Verdeille, which obliges small landowners to join ACCAs, are to democratise hunting, to regulate this activity and to improve the conservation of game stocks, and can be deemed to fall within the scope of the “protection of the rights and freedoms of others” mentioned in Article 11 § 2. Here again, it seems possible to describe the State ’ s interference as reasonably proportionate to the aim pursued, which amounts to a finding that there has been no violation of Article 11 taken separately.

Having reached that conclusion, however, it becomes necessary to point to the discriminatory nature of the Loi Verdeille, firstly in that it does not apply uniformly to all landholdings suitable for hunting, and secondly and mainly, in that it is not applicable to all landowners, since large owners remain exempt. The measures instituted by this Law might be justified, even from the angle of the requirement of non-discrimination, if the aim pursued by the Loi Verdeille were reasonably proportionate to its effect. But, as I tried to show in connection with Article 1 of Protocol No. 1, that effect is highly uncertain, precisely because of the discriminatory nature of the measures provided for by that Law.

I have thus reached the conclusion that Article 1 of Protocol No. 1 and Article 11 of the Convention have been breached, but only when read in conjunction with Article 14 of the Convention.