Frankrijk: Hof in Versailles handhaaft uitspraak rechter Nanterre: Engelse samenvatting

donderdag, 19 februari 2009 - Categorie: Juridische Informatie

Van onze collega's van Powerwatch een samenvatting van de opzienbarende uitspraak van het Hof van Beroep in Versailles, waar wij eerder over berichtten Juridische%20Informatie/3303 .
Vooral de motivatie van de rechtbank is buitengewoon interessant. Zij schept een juridisch precedent en zal zwaarwegende consequenties hebben voor alle providers in Europa:


French court of appeal upholds removal of a base station on health grounds

The Versailles Court of Appeal has upheld a decision by the Crown Court of Nanterre to force mobile telephony company Bouygues Telecom to remove a mobile phone base station as it constitutes an ''exceptional nuisance''.

The initial ruling sentenced Bouygues Telecom to pay the sum of 3000 EUR to each of the three couples submitting their case, 100 EUR per day the installation remained erected and to pay all legal costs. After the appeal, a further 6000 EUR fine was imposed on the telecoms company, the per day cost was increased to 500 EUR (but not retroactively) and all further legal costs were also to be paid.

This is a landmark ruling where the health concerns were considered insufficiently understood to the degree where the presence of the base station constituted an environmental nuisance to the couples bringing forward their case, where their safety and health could not be scientifically ensured on the existing literature.

The court of appeal raised some very strong points allowing for the potential for legislation in the future, such as the following (emphasis ours):

* Considering that, an exceptional nuisance to one's neighbour having been alleged, the compliance with official standards, the legality of the activity, and its usefulness to the public are not in themselves grounds for denying the existence of a nuisance;

* that the lack of knowledge about these non-thermic effects makes it impossible to identify the impact on health or to determine new values that would guarantee a reduction or even an elimination of this risk to health, which has yet to be proven;

* On the basis of numerous scientific reports published since the statutory limits for exposure to electromagnetic radiation were set by the decree no. 2002-775 of 3 May 2002, in accordance with the proposal made in 1998 by the International Commission for Non-Ionising Radiation Protection (ICNIRP) and confirmed by the recommendation of the Council of the European Union 1999/519/EC of 12 July 1999, they state in opposition to the claims of Bouygues Telecom that these limits are now considered obsolete, having been established with regard only to the obvious effects, thus excluding the application of the principle of precaution, which by definition becomes relevant when the scientific verdict is uncertain.

* That a recent report entitled Bio-Initiative was presented on 31 August 2007 by people whose university credentials and body of work accomplished show them to be worthy of respect, and provide grounds for setting aside the criticism made by the company Bouygues Telecom based on the absence of any mandate issued by a national or international body and of any statement that did not distinguish between electrical installations and mobile phones;

* That this Bio-Initiative report (a report which the European Parliament, on reading it, said had challenged their thinking), without providing a definitive answer on the point, concluded that the limits of ELF exposure set by ICNIRP in particular are inadequate to protect people, and that although the health impact of electromagnetic fields is still not fully understood, there is now enough scientific knowledge to take measures for risk management;

* Considering also that while certain studies coming from doctors can be criticised, if not ignored, due to a lack of rigour in their research or the taking of measurements, all the publications, even those produced by the company Bouygues Telecom in support of their appeal, make it clear that, because of the fragmentary state of knowledge, there is a need to pursue research on the possible harmfulness of an exposure which, in the case of radio waves emitted by antennas and relay stations, is continuous and inescapable;

* That no factor provides grounds for categorically denying the existence of an impact on public health from exposing people to ELF radio waves and electromagnetic fields;

In principle, this legal case may set a strong legal precedent, both in the admissability of the BioInitiative report as evidence that ICNIRP is insufficient to protect the health of the public, and the view that with the state of science in a position of such uncertainty, the onus of proof is on the operator to provide sufficient evidence that the existence of the base station will not present a risk to health to those living nearby.

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