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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Friends of Antique Cultural Treasures Ltd, R (on the application of) v The Secretary of State for the Department of Environment, Food & Rural Affairs  EWCA Civ 649 (18 May 2020)
Cite as:  Env LR 3,  WLR(D) 296,  EWCA Civ 649,  1 WLR 3876
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
Mr Justice Jay
Strand, London, WC2A 2LL
B e f o r e :
(Master of the Rolls)
LORD JUSTICE SINGH
LORD JUSTICE GREEN
| The Queen on the application of The Friends of Antique Cultural Treasures Limited
|- and -
|The Secretary of State for the Department of Environment, Food & Rural Affairs
Sir James Eadie QC, Hanif Mussa & Daniel Cashman (instructed by Government Legal Department) for the Respondent
Hearing dates: Monday 24th & Tuesday 25th February 2020
Crown Copyright ©
Sir Terence Etherton MR, Lord Justice Singh & Lord Justice Green :
B. The Proceedings before the High Court
C. The Facts
"The provisions of the present Convention shall in no way affect the right of Parties to adopt … stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II, and III, or the complete prohibition thereof."
- EU Competence on Environmental Policy
"When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence."
"The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the treaties. They shall be notified to the Commission."
- The EU Regulations on trade in ivory
"…specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility, or musical instruments, more than 50 years before the entry into force of this Regulation and that have been, to the satisfaction of the management authority of the Member State concerned, acquired in such conditions. Such specimens shall be considered as worked only if they are clearly in one of the aforementioned categories and require no further carving, crafting, or manufacture to effect their purpose."
"The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited."
"In accordance with the requirements of other Community legislation on the conservation of wild fauna and flora, exemption from the prohibitions referred to in paragraph 1 may be granted by issuance of a certificate to that effect by a management authority of the Member State in which the specimens are located, on a case-by-case basis where the specimens …:
(b) are worked specimens that were acquired more than 50 years previously."
"Without prejudice to stricter measures which the Member States may adopt or maintain, permits and certificates issued by the competent authorities of the Member States in accordance with this Regulation shall be valid throughout the Community."
- Recent Guidance
"3. RECOMMENDS that all Parties and non-Parties in whose jurisdiction there is a legal domestic market for ivory that is contributing to poaching or illegal trade, take all necessary legislative, regulatory and enforcement measures to close their domestic markets for commercial trade in raw and worked ivory as a matter of urgency;"
4. RECOGNIZES that narrow exemptions to this closure for some items may be warranted; any exemptions should not contribute to poaching or illegal trade."
"Suspending the re-export of raw ivory from the EU will ensure that tusks of legal origin are not mixed with illegal ivory and help destination countries implement their actions to reduce the demand for ivory, which constitute an important step in addressing illegal trade in ivory and the current elephant poaching surge.
The Commission recommend that, in the current circumstances, in the light of the precautionary principle, and unless conclusive scientific evidence to the contrary comes to light, Member States should consider that there are serious factors relating to the conservation of elephant species that militate against the issuance of re-export certificates for raw ivory."
"In all cases, it is imperative that EU Member States exercise a high level of scrutiny in relation to applications for re-export of worked ivory, to make sure that they only deliver the relevant documents when the conditions set out under EU law are met which guarantee that the ivory is of legal origin. With a view to avoiding that ivory items which do not fulfil the required conditions are exported, it is recommended that the conditions for issuing such re-export certificates are strictly interpreted."
"…that Member States monitor their domestic markets of antique ivory, including carrying out regular checks to see if traders have evidence of the age and/or origin of antique ivory for sale, and consider making it mandatory for traders to declare the age and origin of antique ivory items for sale, both on websites and in physical stalls/shops."
- The DEFRA Consultation
"Ensure that the UK plays a leading role in ending the illegal trade in ivory. A total ban of UK sales of ivory that contribute directly or indirectly to elephant poaching would send the clearest possible signal that the UK does not tolerate the poaching of elephants for their ivory and demonstrates that we are world leaders in the fight against the ivory trade. Renewed UK leadership in this area will help encourage other countries to close their markets, reduce demand and stop poaching."
"- Allowing the continued sale of musical instruments which contain ivory.
- Allowing the continued sale of items which contain a small percentage of ivory, and where the ivory is integral to the item - a "de minimis" exemption.
- Allowing the continued sale of items which are of significant artistic, cultural and historic value.
- Allowing the continued sale of ivory to museums, and between museums."
"Option 0: Represents the "do nothing" option of retaining the status quo. Currently, the international trade in ivory is controlled by rules set by the Convention on the International Trade in Endangered Species (CITES). These rules are implemented in the UK through EU Wildlife Trade Regulations.
Option 1: Proposal for a total ban on ivory sales in the UK, and proposal to prohibit the import and export of ivory for sale to and from the UK, including intra -EU trade to and from the UK, with strictly limited and, carefully targeted exemptions."
"a) Businesses selling worked ivory products will need to familiarise themselves with the new arrangements, and specifically the precise nature of the exemptions
b) For dealers that hold stock of items containing worked ivory. These businesses have incurred the cost of inventory in items that could no longer be sold and would no longer be of value. This would be a one-off cost, that the business cannot recover
c) For dealers that could no longer deal in items containing worked ivory, there would be lost profit from those sales (not covered above). This would be an annual on-going cost.
d) For auction houses that sell items containing worked ivory on others' account, there would be lost profits that would have been earned from commission revenue and buyer's premium. This would be an annual on-going impact."
"Impacts on individuals and households. The Department's assessment of the loss of wealth to individuals with items containing ivory (page 27) does not appear to be proportionate to the scale of this impact, with an estimated "over two million items made of ivory or with an ivory component… in British homes" (paragraph 124). The Department's assessment of these impacts is, therefore, not fit for purpose, and should be strengthened significantly.
Enforcement costs. The IA would also benefit from further assessment of the costs associated with ensuring compliance with the exemptions, and any wider enforcement costs. For example, it would appear proportionate for the Department to provide an estimate of the cost of setting up and administering the system referred to on page 26.
Benefits. The Department describes anticipated benefits of the proposal at pages 16- 17. These include "…UK citizens whose welfare will be enhanced from the knowledge that the UK is playing its part to bring an end to the illegal trade in ivory…" and "A strong reputational benefit to the UK in showing international leadership…". The IA's assessment of benefits would benefit significantly from discussing in more detail the likely effectiveness of the proposal in reducing trade in new ivory, in the light of previous experiences.
Consultation responses. The Department states that the "…overwhelming majority of respondents supported the implementation of a ban." (page 4). The IA would benefit significantly from including a summary of responses from businesses negatively affected by the proposal, such as antique dealers and auction houses, and how the Department has considered these in its IA.
Familiarisation costs. The Department states that "the time required for familiarisation will be 30 minutes per business" (page 20). As a one-off cost, even a significant increase in the assumed time spent on familiarisation would not affect the rounded EANDCB (the equivalent annual net direct cost to business). However, considering the potential complexity to be interpreted by businesses, particularly concerning the 'carefully targeted exemptions' within the legislation, the IA would benefit from providing evidence to support this assumption.
Small and micro-business assessment (SaMBA). The Department explains that survey evidence suggest that all antique dealers are small or micro businesses and that two large auction houses account for 53 per cent of the auction market. The Department addresses why an exemption would not be justified. The SaMBA would benefit from discussing possible mitigation measures, e.g. production of guidance material.
Exemptions. The Department states that it "… would not expect a large volume of (ivory) items to be sold by business to museums, so this exemption is unlikely to reduce the cost to business significantly." The IA would benefit from providing some indicative estimates of the scale of the impact of this and other exemptions, or at least a justification for this assumption.
Post implementation review (PIR). The Department should set out its plans to review/evaluate the ban, particularly how any unintended consequences would be investigated."
- The trading restrictions in the Act
- The justifications advanced by the Respondent for the trading bans
(i) Suppression of demand through a ban on domestic trade: To reduce further or eliminate any opportunity there may be for illegal ivory, including recently poached ivory, to be traded through markets for ivory items, including antique ivory items, in the UK.
(ii) Suppression of demand through a ban on international trade: To reduce further or eliminate the contribution made by ivory items from the UK, including antique ivory items, in supporting or sustaining demand for ivory items in other consumer markets, which may also support the illegal trade in ivory including the poaching of elephants.
(iii) Persuading third states to impose stringent bans through international leadership: To demonstrate that the UK is willing to close down the commercial trade in items which may be valued for their ivory content, including antique ivory items, and so setting an example of leadership and contributing to achieving this change.
(iv) Supporting third countries that have imposed stringent bans through the giving of advice and support: To support those countries which have already taken action, in particular by closing their domestic markets for ivory items to the greatest extent so as to reduce demand for ivory items in those markets and associated markets and reduce incentives to obtain illegal ivory, including recently poached ivory.
- The Woodnewton Report
"6.1 Section 5 considered the economic impact on the values of holdings of works of art or antiques that contain ivory that would be banned by the Ivory Act. This is the most significant area of economic impact and the one covered to least effect in the Government's Impact Assessment. To understand the overall economic impact, we need to combine this with other effects.
6.2 Some of these cannot be estimated on the evidence we have. We know that some businesses will close and others will relocate; that some staff will be made redundant; and that some businesses will suffer a reduction in turnover and profit; and that some professionals such as restorers or academics will experience a reduction in demand for their services or struggle to continue with their work. But we cannot quantify any of these effects.
6.3 We know that businesses will have compliance costs, notably to familiarise themselves with the provisions of the Act themselves, and to explain these to potential customers. There will also be a 'chilling effect' whereby potential customers of items that would be exempt might decide to play safe and not purchase them. Again, these are impossible to quantify on the data we have.
6.4 We know that some dealers and collectors have suffered a loss through selling items at a lower price than would have prevailed had the ban not been announced. The survey evidence, adjusted for potential overstatement, is that this is £1,957,986 for those taking part. We would also expect that, where owners have sold off their holding, they are less likely to take part in this survey compared to those who still have substantial holdings and therefore have more of a stake in the issue. This sum is therefore likely to be a considerable understatement of the true loss. Applying the multiplier derived from the survey's reach for dealers as a whole of 12%, this leads us to conclude that the overall loss would be £16,316,550.
6.5 The Government's Impact Assessment proposed totals for the loss of profits arising from reduced turnover as £72.4 million over ten years. This is based on a lower figure for the number of dealers than we have relied upon in our analysis (2,482 compared to 4,000) and we think it is an underestimate of the true costs. We have not undertaken a separate computation, and have instead used the Government's figure, adjusted proportionately to match our assessment of the total number of dealers of 4,000. This gives a total loss of profits from reduced turnover over ten years of £116.7 million.
6.6 This gives a total for the economic impact that we are able to quantify as follows:
Loss already realised from sales £16M
Loss on holdings of musical instruments £1M
Loss on current holdings of other items containing ivory £256M [i.e. £32M + £233M]
Profits forgone over ten years £117M
Total quantifiable economic loss £390M"
"The focus of an Impact Assessment process is on the impact on business. Consistent with that principle, the Impact Assessment did not quantify the impact on individuals in monetary terms. […] The Impact Assessment did not monetise the costs to individuals / private collectors, and such costs are not included in the EANDCB estimate."
"…a significant proportion of respondents to the survey were 'private collectors', and they would be more accurately classified as individuals rather than businesses; however, the Woodnewton Report appears to assume (without supporting evidence) that these individuals are actively trading ivory items for profit."
D. Relevant Treaty Provisions
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States."
"Article 17 - Right to property
"Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
"Article 16 - Freedom to conduct a business
"The freedom to conduct a business in accordance with Union law and national laws and practices is recognised."
"Article 52 - Scope and interpretation of rights and principles
Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties."
E. The approach adopted by the Judge
i) The justifications for the Act were set out in the IA.
ii) There were four justifications advanced for the restrictions (see paragraph  above). The first two concerned the conclusion that the prohibition upon both intra-UK trade and international trade would, because of a suppression of trade into, in from and through the UK, quantitatively contribute to the dampening of demand for ivory. The third and fourth concerned the conclusion that the enactment of these same trading prohibitions would exert a positive political and diplomatic effect upon other states which the Government wished to encourage also to adopt additional stringent measures to suppress demand.
iii) Those justifications would be subject to "close scrutiny".
iv) Aspects of the reasoning were inadequate; the assessment of the adverse impact upon collectors and dealers of antique ivory in the IA was "deficient" and the adverse effects upon "private rights" was much greater than Defra contended. Little or no deference should therefore be paid to the evaluative assessment of Defra in relation to these particular justifications.
v) There was no evidence to support the conclusion that the first causal justification (for an intra-UK ban) would exert any material impact upon dampening of demand.
vi) There was "some", relatively modest, evidence to support the conclusion that the second causal justification (for an international trade ban) would exert an impact upon international demand for ivory. This meant that the use by Parliament of the precautionary principle was properly engaged.
vii) There was important evidence that the third and fourth justifications (based upon political and diplomatic considerations) were effective and the judge would accord considerable weight and deference to Defra and Parliament upon these matters.
viii) In the light of his findings about the adequacy of the evidence supporting the trading prohibitions the Judge held that the trading bans were "not inappropriate".
ix) Bearing in mind the appropriate margin of appreciation or discretion to be accorded to Parliament there were no equally effective, less restrictive, measures that Parliament could have adopted to achieve the objectives sought for the Act.
x) The Act did not entail an expropriation of property rights but did interfere with the rights of owners of ivory affected by the prohibitions. The principles of respect for property under the Charter and the Convention were thus engaged. This had the effect of requiring the court to adopt a closer scrutiny of the justifications advanced for the restrictions given that they interfered with fundamental rights. Nonetheless, applying that close scrutiny the trading bans were still not disproportionate.
xi) It followed that the Act was lawful and did not violate Articles 34-36 TFEU, the Charter, or the Convention.
F. The Grounds of Challenge
G. The evidence – justifications for the trading bans
- Suppression of the domestic trade (First justification)
"31. The antique trade relies on the seller correctly and honestly assessing the ivory to be pre-1947 and worked. It is disproportionately costly for the trade to use scientific testing such as carbon dating as a means of establishing an item to be worked pre-1947. The cost of testing (£400 or more) is more than the value of many items on sale and re-quires extracting a sample from the item which can also irreparably damage small or fine items due to the size of the sample needed. Carbon dating is also far less accurate with regard to items created after 1945, due to the atmospheric impacts of the atomic bombs dropped at Hiroshima and Nagasaki."
32. Recent research highlights the fault lines in the domestic ivory trade. For example, in field research by Traffic, casual ivory market traders had limited awareness of legal requirements regarding ivory. Whilst all traders understood that there was a cut-off year for what was considered "antique" (ivory acquired and worked before 1947), some did not know which year this applied to (p.19). The University of Portsmouth interviewed dealers who "stated that they either know of dealers or auctioneers who would sell post-1947 ivoryhttp://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/2951.html&query=(ivory)+AND+(%22mr+justice+jay%22) - disp195 or that they had witnessed illegal ivory being sold in the UK" (p.53). Similar issues were highlighted by Two Million Tusks, who found that many auction houses were unable to comply with the legal requirement to demonstrate proof of age for all ivory pieces dated pre-1947.
Increase illicit trade and poaching
56. Legal ivory trade can increase the illicit trade and poaching because:
a) There is confusion whether antiques contain illegal ivory or not. Banning trade will increase the stigma of buying ivory reducing demand in both the legal and illegal markets. Also, those who buy ivory as an investment will cease to do so if they have concerns around whether they can find a market outlet for it.
b) There is suggestive evidence that legal ivory is used by smugglers to mask the illicit ivory trade (see paragraph 30). Smugglers use legal permits to launder the product of elephant poaching by increasing the quantity over what was originally certified in permits to trade ivory or by using these permits several times. As the legal market shrinks and permits become more exceptional, laundering illegal ivory becomes more difficult and expensive.
c) As the amount of legal ivory diminishes and becomes more easily identifiable monitoring and enforcing becomes easier."
"Illegal transhipments through UK airports and ports by unscrupulous individuals is as unlawful at present as it will be when the Act comes to force. The problem here is that these individuals will remain unscrupulous and unrepentant, and they can operate with a degree of impunity within those countries which lie at the source of the problem. I consider that another factor bearing on the UK market is that in the main cultural attitudes in the UK are such that there is little or no appetite for ivory which is other than of some antiquity."
- Suppression of the export trade (Second justification)
- International moral leadership/provision of assistance and advice to third states (Third and Fourth justifications)
"Commonwealth, states and territories, through the Council of Australian Governments, develop and implement a national domestic trade ban on elephant ivory and rhinoceros horn. The domestic trade ban should be consistent with those implemented in other like-minded international jurisdictions."
The report referred to the approach of the UK which had been identified by a significant number of stakeholders as "a model of best practice". The committee recorded strong support for the United Kingdom government's proposed ban and legislation.
"In the New Year , the Government will act on our plans for a British ban on domestic ivory sales …. My aim is to make 2018 the year of UK leadership in defeating the ivory trade: wherever I go as Foreign Secretary and whenever I meet the representatives of a relevant country, I will repeat our message. I did just that when I saw the Japanese foreign minister, Taro Kono, here in London earlier this month. Japan has a large domestic ivory market and its government could play a key role in stamping out elephant poaching. I've instructed our diplomats in embassies across the world to have frank conversations with our friends and allies."
"The decisive battle against the ivory trade will be won in China and the rest of the Far East, through changing attitudes. The growing readiness of the Chinese authorities to give a lead and clamp down on ivory dealers is of huge importance. In the rest of the world, we have to do everything we can to help with that.
… We British have been at the forefront of this fight. But now, in the absence of government action to close our ivory market, we are in danger of lagging behind. The UK is, embarrassingly, among the largest remaining ivory markets in the world. We still allow domestic trade in ivory with a certificate, as well as the trading and exporting of ivory said to originate before 1947, without any official certification."
- Conclusion on evidence
H. Less restrictive but equally effective methods
(i) The decision maker has a margin of appreciation or discretion which is highly fact and context specific: Lumsdon paragraphs  and . The evaluation will take account of all relevant circumstances including the conditions prevailing in the relevant market, the circumstances leading up to adoption of the challenged measure, and the reasons given why less restrictive measures were rejected.
(ii) A measure will be disproportionate if "it is clear that the desired level of protection could be attained equally well by measures which were less restrictive": Lumsdon paragraph ; EU Lotto paragraph .
(iii) The burden of proof lies with the decision maker. It is not however to be applied mechanically. There is no duty on the decision maker to prove positively that no other measure could be as effective: Lumsdon paragraph ; Scotch Whisky paragraph ; BAT (ibid) paragraph .
(iv) The decision maker is not required "… to consider every possible alternative, including those that were never suggested by consultees": TfL paragraph ; EU Lotto paragraph .
(v) The mere assertion that some other measure is equivalent and less intrusive is not sufficient: BAT (ibid) at paragraph ; and equally the fact that some other measure can be envisaged is not enough: BAT (ibid) paragraphs  – .
(vi) It is relevant that a measure is "general, simple, easily understood and readily managed and supervised": BAT paragraph .
"… A system of age verification would not, for example, reduce to the same extent as the Act the contribution made by ivory items from the UK in sustaining demand for ivory items (including antique items) in other consumer markets and it would not provide a basis for encouraging other countries to close down their domestic ivory markets.
As to a certification scheme for pre-1947 ivory: while it might (other things being equal) help to reduce the risk of laundering of modern ivory, it would be a similar exemption to that already in place under the EU Regulations. It would not, therefore, go much further to reduce the market and the ivory being sold and exported internationally. It would not achieve the wider aims of the Act."
"187. … It would be very difficult to create what in effect would be a "blacklist" of countries to which ivory could not be exported, these being the very countries which the UK seeks to support in their difficult endeavour to stamp out this trade. This situation is very different from the legislative scheme governing aspects of asylum and the application of the Refugee Convention where lists of this sort exist in order to facilitate the compliance by the UK with its international obligations. Furthermore, the charge of hypocrisy, whether it [sic: or] not it would be entirely justified, would obviously be made. I do not see the need to compound the diplomatic sensitivities in this area."
"189. I consider that the difficulty with the Claimant's submissions on this issue is that Mr Pullen has clearly explained the logical, policy … and evidentiary basis for each exemption judged individually and on its own merits, and that as a matter of principle it cannot be heard to say that the interests of consistency alone demand that Defra and Parliament should have gone further and have created the additional broad exemption which is sought. Of course, while it could be argued that the de minimis exemption should have been set at 20% rather than 10%, and that even an item with 10% ivory could well have more ivory by weight than a piece of netsuke, none of that weakens Mr Pullen's overarching contention that each exemption must be narrowly drawn and compellingly justified. The fact remains that netsuke is 100% ivory whatever its size and weight.
190. …the philosophy of the Act is to apply narrow and limited exemptions to the ban, which is not fulfilled by the Claimant's proposal."
I. Other criticisms relating to the application of the proportionality test
- Wrongful use of the precautionary principle/reliance upon inadequate evidence
"…a correct application of the precautionary principle presupposes, first, identification of the potentially negative consequences for the environment of the waste concerned, and, second, a comprehensive assessment of the risk to the environment based on the most reliable scientific data available and the most recent results of international research…"
"58. … it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to the environment persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective."
- Failure to take account of the failings in the IA and the according of too much deference to Parliament
"29. …. the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's convention rights have been violated. ….
30. …[T]he court's approach to an issue of proportionality under the convention must go beyond that traditionally adopted to judicial review in a domestic setting…There is no shift to a merits review, but the intensity of review is greater than was previously appropriate…. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time…. Proportionality must be judged objectively, by the court."
- Violation of the principle of respect for property/absence of a right to compensation
"193. The Claimant would say that this a classic case of a sledgehammer to crack a nut. The real problem lies in parts of Africa and the Far East. Any benefits flowing from the Act are unquantifiable and conjectural, whereas the immediate harm to the financial and personal interests of those dealing in quantities of antique ivory are significant, immediate and obvious. The salvation of the elephant may be extremely important, but this does not justify the sacrifice of private rights and the solution is the taking of protective measures which are more stringent, more coherent and better-focused. Overall, the collateral damage from seeking to achieve this proper purpose is unacceptable."
"To demonstrate what it is required to demonstrate in order to enable a state to avail itself of the derogation from article 30 for which article 36 provides, it is necessary to adduce factual evidence (1) to identify the various mischiefs which the challenged restrictive measures were intended to prevent, (2) to show that those mischiefs could not have equally effectively been cured by other measures less restrictive of trade, and (3) to show that the measures were not disproportionately severe having regard to the gravity of the mischiefs against which they were directed. This last mentioned consideration involves the concept in Community law (derived principally from German law) called "proportionality". In plain English it means "You must not use a steam hammer to crack a nut, if a nutcracker would do."
"56. … In a deprivation case the availability of compensation is a relevant consideration. In Case A/301-A Holy Monasteries v. Greece, the European Court said:
'In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 only in exceptional circumstances.'
57. Such a rule is readily understandable where the State is itself assuming ownership of property belonging to another, or where property is being transferred from one citizen to another. It appears to us to have very much less force where, in a case such as the present, the object of the measure is to restrain the use of property in the public interest. …"
"85. In conclusion, notwithstanding the legitimate aims of the Loi Verdeille when it was adopted, the Court considers that the result of the compulsory-transfer system which it lays down has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1. There has therefore been a violation of that provision."