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COUNCIL OF EUROPE ---------------- --------------- CONSEIL DE L’EUROPE Strasbourg, 23 April 1968 CE/Nat (68) 31 COE053425 EUROPEAN COMMITTEE FOR THE CONSERVATION OF NATURE AND NATURAL RESOURCES Working Party on Flora, Fauna and Landscapes EUROPEAN DIPLOMA Legal protection of the Nature Reserve of the Wollmatinger RIed A. Introduction by the Secretariat B. Opinion of the Directorate of Legal Affairs C. Two memoranda from the German delegation 9693 0 3 .3/58.1 A. INTRODUCTION The manifest European interest of the nature reserve of the Wollmatinger Ried has been recognised by the European Committee and by the Working Party on flora, fauna and landscapes. After considering the report submitted after his on-the-spot appraisal by Mr. Herberigs (CE/Nat (68) 18), the Working Party decided to recommend that the European Committee award the diploma for the nature reserve (CE/Nat (68)-22, point 4(c)(i)). As regards the legal position of the Wollmatinger Reid, this document contains: A. The opinion given by the Legal Directorate of the Council of Europe regarding the degree of protection of the reserve; B. Two tekts submitted by the German authorities: (1) -A report on the legal regulations governing the wild-fowling preserves on the Untersee and on the Rhine near Constance, and the possibilities of abolishing this wild-fowling; (2) A list of principles drawn up by the local administrative authorities for nature conservation and landscape preservation in the Lake Constance area and its surroundings. B. OPINION OF THE COUNCIL OF EUROPE DIRECTORATE OF LEGAL AFFAIRS Prom a legal point of view there does not seem to be any. major objection to the granting of the European Diploma to the nature reserve of the Wollmatinger Ried. The shooting rights are apparently well-defined and limited The taking of water and the disposal of waster or sewage is a matter for the appreciation of the European Committee. The camping site is only a tiny part of the reserve but do the campers' activities adversely affect the natural amenities As to paragraph 10* of Mr. Herberigs1 report* pleasure boating* it is not clear whether Mr. Herberigs considers the damage so great that the Diploma should not be awarded until the position is regulated by law. It does not appear wise to insist on guarantees that the situation will not change (see conclusions of the report). The position is that the Diploma would be withdrawn if the protection were reduced. C. TWO MEMORANDA PROM THE GERMAN DELEGATION 1. "The legal bases and the wild-fowling preserves on the Untersee (Lower Lake) and on the Rhine near Constance and the possibilities of abolishing wild- fowling there11 Report by Dr. Bernhard Everke, Gerichtsreferendar* 2 November 1966 Legal situation of wild-fowling preserves on the Untersee (Lower Lake) and on the Rhine near Constance - possibilities of abolishing wild-fowling there- I. Report on' the facts On the Untersee (Lower Lake) and on the Rhine near Constance, fishermen and wild-fowlers from the neighbouring municipalities shoot wild-fowl every year during the period from 15 September or 26 October to l4 February.. First* for game shooting over part of the area* the city of Constance issues a licence* the "Konstanzer Wasserjagdkarte" (wild- fowling permit in the Constance area)* which gives the holder the right to shoot wild-fowl: (a) on the Rhine between the month of the Grenzbach and the lower part of the Lohnerhof, and between the Kuhhorn am Fall and the mouth of the Baumlegraben (zone A)j (b) on the islands and along the edge of the fields at the end of the Wollmatinger Ried from Gottlieben to the mouth of the Mtihlegraben (zone B). Secondly, the administrative departments (Landratsamt of Constance) issue a licence, a wild— fowling permit, which authorises wild-fowling in an area called the municipal wild- fowling preserve, which comprises the "surface of the Untersee" (Lower Lake) and the Rhine from a line passing from the Kuhhorn am Fall to the Baumlegraben on the right bank of the Rhine to the point where the south-western extremity of the island of Reichenau (Buchhorn or Klempern) and the church tower of Berlingen are opposite each other in a straight line (paragraph 1 of the Order on wild-fowling (VZO) of 21 June 195^. About 130 wild-fowling permits are issued on the Swiss side and about thirty on the German side. The birds are mainly moorhens and coots. Until recently a beat, known as the battle of the coots, was held on the first day of the shooting season; nowadays it is held on the third day, The city of Constance seeks to exclude zones A and B from the common wild-fowling preserves, on the ground that zone B is in a stretch of land comprising an island which is part of Constance and cannot be the subject of an international agreement. Game-hunting rights within the two zones regarded as the game-hunting preserves of Constance are based on "an ancient right guaranteed by a written deed". On the other hand, the Swiss who practice wild—fowling and the Ministry of Food, Agriculture and Forests of Baden-Wurtemberg consider that the regulations governing the common shooting preserves also apply in zone B. The Baden-Wurtemberg Ministry urged "the Municipality and the Landratsamt of Constance to deliver shooting permits for wild—fowling over Constance preserves only for zone A, but to prohibit game-shooting over the island of Langenrain" (hunting and shooting regulations II, page 57). II. Assessment (A) Legal bases and the wild-fowling preserves in the"Untersee and on the Rhine near Constance (1) The Constance wild—fowling preserves (a) Origin of wild— fowling rights (aa) Zone A ; By contract concluded on 12 November 1576 between the- Grand Chapter of Constance, Lord of the Village of Wollmatingen, which at that time was part of the island of Reichenau, and the city of Constance, higher jurisdiction and lower jurisdiction including shooting rights "over the Rhin- from the city to the Khhhorn downstream" (cf. paragraph 11 of the contract) were transferred to the city of Constance. The territory on the other bank is demarcated in detail under paragraph 1 of the contract, dating back to 1763, between the "Oberamt Reichenau" and the' city of Constance concerning game-shooting rights over land and water. According to that contract, the area downstream of the said Lohnerhof as far as the municipal boundaries (BSum le or - Trankegraben) were to form part of the Constance wild- fowling' preserve. Since that date there is no authentic reference to this preserve, either in the Treaty of 20 - 31 October 1854- or in the Order on fishing of 16 November 1861. Nevertheless, the city of Constance includes this area on its map of the Constance game preserves, enacts its own game-shooting regulations and applies to the Constance game preserves the Order on wild- fowling of 1954- (paragraph 4-, page 5 of the regulations governing the Constance wild-fowling preserve).• (bb) Zone B: In the agreement between "Oberamt Reichenau'" and .the city of Constance, concluded in 1763 (Appendix 4-),. the game preserve B, i.e. the islands situated at the extremity of the Wollmatinger Ried and the edges of the fields of Gottlieben an far as the Schopfel Road (Allée de Reichenau} near the Chapel of the child Jesus (Kindlebild-Kapelle), 'was ceded to the City of Constance. The two preserves ((A) and (B)) were therefore created as a result of the transfer of the monopoly of game-shooting rights. Whilst game-shooting rights had until then been included among the general personal right granted to inhabitants of the area, they had almost completely been withdrawn from the peasants from the Eranconian period to the beginning of the 16th century. Thus came into being the monopoly of game-shooting rightswhich was independent.of land ownership; from that time onwards, the monopoly belonged to religious foundations .and.princes and was transferable. For the temporal and spiritual rulers this monopoly was a profitable prerogative which at the same time meant that wild-fowling was effectively controlled (cf. Mittèis, Privatrecht, pp. 85 et seq,; Mitteis, Rechtsgeschichte, ppV T67 et seq.; Brtinneck, Jagdrecht, p. 1506 et seqq.). •At the time when the Constance wild-fowling preserves came into being (i.e. during the period of the monopolies).game-shooting rights were therefore granted by the "Oberamt Reichenau" to the city of Constance. It appears from the documents referred to above.that the., exercise of game-shooting rights was granted to the burghers (as regards the ancient customary distinction between game-shooting rights ("droit de chasse") and the right to engage in wild-fowling"("droit à 1 ’exercise' de la chasse"), cf. also Bluntschli, vol. 5, pp. 587 et seq.). The contracts do not define the legal form of the authorisation to shoot wild-fowl given by the city of Constance to fishermen. However, as it was a question of part of.the.small. .. preserve, and probably of a transfer free of charge, the form may -be assumed to have been either what was - termed "game-shooting'by favour" ("chasse de grâce") or "free game-shooting right" ("droit d e .chasse,à.tir - . libre"). The latter is the more likely, because the game-shooting rights were open not only to a few individual burghers, but to all the burghers (all wild-fbwlers) resident in the city of Constance (as regards the "droit de chasse à tir libre", cf. BrUnneck, pp. 1508 et seq.). The right to engage in wild-fowling granted to the burghers of Constance was not awarded directly by the spiritual holder of the shooting monopoly but indirectly through the partner (the city).