Cases nos 25088/94, 28331/95 and 28443/95
96. The applicants submitted that they had suffered an infringement of their freedom of association on account of the fact that pursuant to the relevant provisions of the Loi Verdeille they had against their will been made automatic members of an approved municipal hunters’ association, which the Law did not permit them to leave. They relied on Article 11 of the Convention ...
A. Applicability of Article 11
97. The applicants maintained that ACCAs indubitably came within the scope of Article 11. They argued that a hunters’ association, even though approved by the authorities, remained a purely private-law body, as the Loi Verdeille itself expressly referred to the Law of 1 July 1901 on associations. An ACCA was presided over by a hunter who was elected by hunters. They were not vested with any public-authority prerogative outside the scope of the ordinary law, since the technique of official approval was not sufficient to transform a private-law association into a public administrative body.
98. The Government on the other hand, argued that ACCAs were public-law associations, vested by Parliament with public-authority prerogatives, and accordingly outside the scope of Article 11. An ACCA could only be set up, for example, with the prefect’s approval and did not have a free hand as regards the adoption of either its constitution or its internal rules, the essential parts of which were laid down by Articles R. 222-62 et seq. of the Countryside Code. In addition, the prefect had the power to supervise and impose sanctions on an ACCA, the power of prior approval of any amendment to the rules, and disciplinary powers.
The Government therefore maintained that ACCAs, even though set up in accordance with the Law of 1 July 1901, were public-law para‑administrative institutions whose internal governing bodies admittedly resembled those of associations, but whose constitution clearly distinguished them from ordinary associations, since they were subject to a mixed legal regime containing elements of both private and public law. The complaint of a violation of Article 11 was accordingly incompatible ratione materiae with the provisions of the Convention.
99. The Court notes that the question whether ACCAs are governed by private or public law is far from a settled issue in French law. The Bordeaux Administrative Court observed, for instance, in its judgment of 16 November 1989 (see paragraph 32 above): “Although, in order to achieve the objectives laid down by the [Loi Verdeille], [ACCAs] are vested with public-authority prerogatives, they nevertheless remain private-law bodies”, and went on to say: “The decisions they take …, particularly with regard to granting or withdrawing membership, are private-law acts which are not subject to review by the administrative courts”.
This was also the approach taken by the civil courts dealing with the case of Mrs Chassagnou and Others (see paragraphs 21 and 22 above). On the other hand, in finding against those applicants (Mr Dumont and Others and Mrs Montion) who appealed to the administrative courts against a refusal by the prefect to remove their land from an ACCA’s hunting grounds, the courts concerned invoked the public-authority prerogatives supposedly conferred on ACCAs (see paragraphs 27 and 32 above).
100. However, the question is not so much whether in French law ACCAs are private associations, public or para-public associations, or mixed associations, but whether they are associations for the purposes of Article 11 of the Convention.
If Contracting States were able, at their discretion, by classifying an association as “public” or “para-administrative”, to remove it from the scope of Article 11, that would give them such latitude that it might lead to results incompatible with the object and purpose of the Convention, which is to protect rights that are not theoretical or illusory but practical and effective (see the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33, and, more recently, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 18-19, § 33).
Freedom of thought and opinion and freedom of expression, guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee of being able to share one’s beliefs or ideas in community with others, particularly through associations of individuals having the same beliefs, ideas or interests.
The term “association” therefore possesses an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting-point.
101. It is true that the ACCAs owe their existence to the will of Parliament, but the Court notes that they are nevertheless associations set up in accordance with the Law of 1 July 1901, and are composed of hunters or the owners of land or hunting rights, and therefore of private individuals, all of whom, a priori, wish to pool their land for the purpose of hunting.
Similarly, the fact that the prefect supervises the way these associations operate is not sufficient to support the contention that they remain integrated within the structures of the State (see, mutatis mutandis, the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 26-27, § 64). Furthermore, it cannot be maintained that under the Loi Verdeille ACCAs enjoy prerogatives outside the orbit of the ordinary law, whether administrative, rule-making or disciplinary, or that they employ processes of a public authority, like professional associations.
102. The Court accordingly considers, like the Commission, that ACCAs are indeed “associations” for the purposes of Article 11.