Mobile Phone Antennas: Italian Children Invoke the Precautionary Principle

Mobile phone antennas: Italian children invoke the precautionary principle

by Hugo Mattei, Edoardo Valentino et Maud Coudrais, reporterre.net, 11 July 2020  - translation

Dessin : © Etienne Gendrin/Reporterre

On Monday 13 July, the court in Turin will consider the appeal of children who denounce the installation of base stations near their school during confinement. If it finds in their favor, the precautionary principle could become in Europe a real instrument for the protection of public health, explain the authors of this forum.

Hugo Mattei is a professor of civil law, author of several publications on common goods and legal ecology, and co-signatory of the appeal with Edoardo Valentino, a lawyer at the Turin Bar. Maud Coudrais is a Doctor of Law, member of the Paris Bar. The authors would like to thank Philippe Billet, Associate Professor of Public Law at the Jean-Moulin Law Faculty of Lyon 3 and Director of the Environmental Law Institute of Lyon.

Since the beginning of the Covid-19 epidemic in various European countries, including France, telecommunication relay antennas have been the target of activists suspecting them of promoting the spread of the virus. In fact, it is rather the opposite that has happened. The Covid-19 epidemic clearly favored the spread of relay antennas.

In France, Ordinance No. 2020-320 of March 25, 2020 relating to the adaptation of deadlines and procedures applicable to the installation or modification of an electronic communications installation has virtually eliminated any control over the installation of relay antennas, in the name of "continuity of service and network operation". This extreme liberalization is presented as temporary, supposedly limited to the period of health emergency. However, the text already provides for the possibility of regularization of the installed structures.

In Italy, the texts have not been amended. But the same logic has prevailed in practice, as in Frossasco, a small Piedmontese commune of about 3,000 inhabitants.

In May 2019, a 25-metre-high mast to house the antennas was installed in the immediate vicinity of an elementary school attended by 300 children. The project is financed by the TOPIX consortium, composed of the Piedmont Region, the Valle d'Aosta Region, the City of Turin, the Polytechnic University of Turin, Facebook, Google, and Cisco, Netflix and Vodaphone. During confinement, the inhabitants noted that workers were carrying out the installation work in secret, without any information and impact study.

Taking legal action on behalf of future generations

On 11 June, an application for summary proceedings was lodged with the Turin Civil Court requesting the immediate shutdown of all installations, a rare occurrence in Italy, unlike in France. Another peculiarity of this case is that the lawsuit is brought by minor children, through their legal representatives, and by a cooperative society ("Rodotà Committee") acting as a "lawyer for future generations".

This foundation remains highly original even though, in 1993, a Filipino lawyer led the way in invoking before the Supreme Court of the Philippines the ruling on over-exploitation of forests on behalf of future generations, thus setting a real precedent in the now famous case of 30 July 1993, Oposa v. Factoran. The Supreme Court of the Philippines had, for the first time, legally enshrined the legal responsibility of each generation to ensure for the next generation a healthy and balanced environment in harmony with nature.

In the present case, the action is directed against the consortium and the municipalities of Frossasco and Turin. In other words, David against Goliath. In particular, the right to health, recognized by the Italian Constitution, and the precautionary principle, guaranteed by the Treaty on the Functioning of the European Union (Article 191), are invoked.

The precautionary principle was first enshrined in law in 1992 with the Rio Declaration, which states that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation".

In France, the precautionary principle was enshrined in 1995 by the "Barnier" Act, then incorporated in the Environment Code (art. L. 110-1) and, in slightly different terms, in the Environmental Charter of 1 March 2005, which is attached to the Constitution (art. 5). This principle therefore has supranational and constitutional value and is binding on both the legislative and executive branches.

In France, the precautionary principle has remained theoretical

In the area of relay antennas, France has been experiencing an abundance of disputes for more than twenty years. The Conseil d'État, the highest administrative court, has recognized that the installation of mobile phone base stations is subject to the precautionary principle, under Article 5 of the Environmental Charter, which has constitutional value. However, this recognition has always remained theoretical, since no installation has to date been censured on the basis of an alleged health risk. While the administrative judge has agreed to take into account the existence of scientific work in this regard, he has always considered that compliance with the World Health Organization's emission standards was sufficient to guarantee the safety of the emissions from the disputed installations, "in the light of the current state of scientific knowledge".

This position of French administrative justice amounts to emptying the precautionary principle of its very meaning. Indeed, this principle in itself implies that doubt benefits precaution, and not laissez-faire. Consequently, the very existence of a controversy about the possible health risks of electromagnetic waves should oblige States to take protective measures. In France, there is little more than the "Abeille" law of 9 February 2015 on exposure to electromagnetic waves, which sets some limits on the establishment and emissions next to sensitive establishments (nurseries, etc.), but the ordinances adopted during the health crisis have somewhat relaxed the procedures for setting up these facilities, leaving little room for public intervention.

The interest of the Turin appeal lies in the fact that the Italian judges have already recognized in previous decisions the very principle of the dangerousness of electromagnetic waves to health, which may suggest that the Turin court could uphold the appeal. In the case of Frossasco, no prior study has been carried out to measure the impact on the health of the local residents, especially in view of their very young age.

In fact, French law itself has implicitly recognized the potential danger of electromagnetic waves to health. In several Assembly decisions in 2011, the French Council of State referred to a "special electronic communications policy entrusted to the State [...] to ensure [...] a high and uniform level of health protection against the effects of waves emitted by electrical communication networks".

The hearing in Turin is set for 13 July 2020. It remains to be seen, therefore, whether the Italian courts will dare to give effectiveness to the precautionary principle, an essential instrument used by the law to protect public health and future generations.

Original article:
https://reporterre.net/Antennes-telephoniques-des-enfants-italiens-invoquent-le-principe-de-precaution