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18/02/2009 - 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.

Links

Translation of court of appeal's verdict - Translation of the court of appeal's verdict, courtesy of Next-Up
Bouygues Telecom website - Bouygues Telecom website
BioInitiative group website - BioInitiative group website


Also in the news

Constitutional Court in Belgium confirms a statutory limit of 3 V/m

The Constitutional Court in Belgium swept aside arguments that "only the federal authority had the power to legislate on standards aimed ultimately at protecting human health.", judging that that "the Regions have the authority to prevent and to combat different types of environmental pollution, and that this authority confers the right to take measures to prevent and to limit risks (...), including limiting people's exposure to the risks from these types of radiation."

In its decision published this Thursday the Constitutional Court confirmed a statutory limit of 3 V/m (lower than the federal standard of 20.6 V/m, which is again lower than the ICNIRP standard of 61 V/m), due to come into force in the Brussels Region on 15th March next.

The Court went even further and judges that on the basis of its redefined competence, "the federal authority no longer has the power to set statutory exposure levels. (...) The choice made by the regional legislature (...) to apply the principle of precaution falls within the right of this legislative body to make its own assessment and cannot be rejected simply because there are no stricter international standards in force."


Motorola close their RF research lab

Last Friday, the 13th February 2009, Motorola closed their RF research laboratory in Florida. Over the last couple of decades Motorola have been one of the biggest international figures in research into mobile phones, RF radiation and their effects.

Their influence was not just on publishing papers that showed a remarkably consistent lack of effect but also in their involvement within committees and scientific review bodies set up to assess RF science. It is the end of an era of the inappropriate involvement of a mobile phone manufacturer at the very forefront of mobile phone health effect research.

This story is covered in fine detail by Louis Slesin on his Microwave News website, entries dated the 9th and 13th of February 2009.


Two letters to Emilie van Deventer

We have chosen to publicise two open letters recently sent to Dr. Emilie van Deventer, head of the WHO-EMF project.

Henrik Eiriksson, administrator of Mast Victims, has again asked for the WHO protocol for accepting studies on base stations, as he had been told in person that the majority of the base station literature published so far does not meet the eligibility criteria that WHO sets. Despite the fact that 10 of the 14 published on the WHO EMF database show adverse health effects, these have not been considered with regards to the official WHO view on base stations and health. This is very surprising to many, as it is not clear which of the criteria the studies fail to reach, and Professor Michael Kundi went through 7 of the 10 studies at the RRT EMFs and health conference in September 2008 demonstrating objectively how it appeared that all met the WHO criteria on three of the four accounts: they are peer-reviewed, replicated by separate research groups and consistently find the same effects at approximately the same magnitude. The only criteria on which they fail (show a clear mechanistic cause and effect) is because there is no understood mechanism for them to demonstrate, and is therefore not a failing of the study protocol but of the lack of current understanding of the science. It is therefore inexplicable why they should not be included in a WHO review of mobile phone base stations and health.

Jean-Luc Guilmot, a Belgian engineer who we previously covered as having thoroughly researched this issue, has now updated his original analysis with a new analysis of the science contained within the WHO EMF database on base station health effects. He has sent the other letter to Emilie van Deventer with his updated analysis. This latest analysis has the full citations and a brief explanation of the findings in each study, demonstrating again the unbalanced proportion of the literature which clearly highlights a strong possibility that there may be adverse health effects from living near mobile phone base stations.


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