Information Note on the Court’s case-law 153
June 2012
Herrmann v. Germany [GC] - 9300/07
Judgment 26.6.2012 [GC]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Obligation of landowner opposed to hunting on ethical grounds to tolerate hunting on his land and to join a hunting association: violation
Facts – The applicant is the owner of two landholdings in Germany. Under the Federal Hunting Act he is therefore automatically a member of a hunting association and is obliged to tolerate hunting on his land. As he is opposed to hunting on ethical grounds, he lodged a request with the hunting authority seeking to terminate his membership of the hunting association. The request was refused. An identical request was subsequently rejected by the administrative courts. In December 2006 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant for adjudication, finding, in particular, that the legislation in question pursued legitimate aims and did not impose an excessive burden on landowners. It took the view that the impugned provisions were aimed at preserving game in a manner adapted to the rural environment and ensuring healthy and varied wildlife, and that compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims and did not infringe the applicant’s property rights or his right to freedom of conscience or freedom of association. The Constitutional Court added that, in so far as the legislation in question was binding on all landowners, the applicant’s right to equal treatment had not been breached either.
In a judgment of 20 January 2011 (see Information Note 137), a Chamber of the Court held, by four votes to three, that there had been no violation of Article 1 of Protocol No. 1, as the Government had struck a fair balance between the protection of the right of property and the requirements of the general interest.
Law – Article 1 of Protocol No. 1: The obligation for the applicant to tolerate hunting on his land interfered with the exercise of his right to the peaceful enjoyment of his property. The German hunting legislation could be said to constitute a means of controlling the use of property in accordance with the general interest within the meaning of Article 1 of Protocol No. 1.
In the cases of Chassagnou and Others v. France and Schneider v. Luxembourg*, the Court had held that imposing on a landowner opposed to the hunt on ethical grounds the obligation to tolerate hunting on his or her property was liable to upset the fair balance between protection of the right of property and the requirements of the general interest and to impose a disproportionate burden on the person concerned. Since the adoption of those two judgments, several European countries had amended their legislation or case-law to enable landowners to object to hunting on their land or to terminate their membership of a hunting association subject to certain conditions. It therefore remained to be determined whether the situation arising out of the provisions of the Federal Hunting Act as applied in the instant case differed significantly from the factual and legal situation in the above-mentioned cases. With regard to the objectives of the legislation concerned, the Court noted that the aims of the German Federal Hunting Act included the management of game stocks, which, in turn, was aimed at maintaining varied and healthy game populations. In that regard, it did not differ significantly from the former laws in France and Luxembourg, which had pursued comparable objectives. Although the German legislation imposed certain obligations on persons who engaged in hunting, the fact remained that hunting was primarily carried out by private individuals as a leisure activity, just as used to be the case in France and Luxembourg. As to the territorial scope of the legislation and the possibility of exemption from compulsory membership of a hunting association, the German hunting legislation applied nationwide, whereas the French law had been applicable only to certain départements. However, the German Länder could enact hunting laws that departed from the federal legislation, although they had not hitherto done so. Furthermore, all three laws provided, or had provided, for similar territorial exceptions for enclosed areas, nature reserves and game reserves. Certain differences between the laws, such as differential treatment under German law depending on the size of the plot of land, could not be considered decisive. As to the compensation awarded to landowners in return for the use of their land for hunting, the legislation in Germany and Luxembourg, unlike the French law, provided for members of the association to receive a proportionate share of the profits from the leasing of hunting rights. In Germany, compensation was granted only when explicitly requested. The Court considered that it did not sit comfortably with the notion of respect for an ethical objection to require the objector to apply to the authorities for compensation in respect of the very matter forming the basis for his or her objection. In any event, the German Federal Hunting Act left no room for the ethical convictions of landowners opposed to hunting to be taken into account.
In view of these considerations, the situation encountered in Germany was not substantially different from those examined by the Court in the cases ofChassagnou and Others and Schneider. Accordingly, the Court saw no reason to depart from its findings in those cases, namely that the obligation to tolerate hunting on their property imposed a disproportionate burden on landowners opposed to hunting for ethical reasons.
Conclusion: violation (fourteen votes to three).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
* Chassagnou and Others v. France [GC], 25088/94, 28331/95 and 28443/95, 29 April 1999,Information Note 5; Schneider v. Luxembourg, 2113/04, 10 July 2007.
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