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«Residents living next to a phone mast vs. the mobile phone company Bouygues Telecom French Republic In the Name of the French People Versailles ...»

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Translation HC

Residents living next to a phone mast vs.

the mobile phone company

Bouygues Telecom

French Republic

In the Name of the French People



Court of Appeal


4 February 2009

Facts and Proceedings

By the ministerial decree of 8 December 1994 the company Bouygues Telecom obtained

authorisation to install in the country a radioelectric network open to the public, with a view to

establishing a means of personal communication in accordance with the standard DCS 1800, now designated "GSM".

This decree was subsequently modified by other administrative decisions which, while upholding the permanence of the network and allied services, and the obligation to carry emergency calls without charge, have notably increased the coverage obligations by compelling the company Bouygues Telecom to assure the coverage by 1 July 2000 of the geographical areas that include at least 90% of the mainland population.

By the decree of 3 December 2002 the company Bouygues Telecom was authorised to install a radioelectric network open to the public with a view to establishing a means of personal communication in accordance with the standard UMTS.

In order for its network to cover part of the commune of Tassin la Demi-Lune and the commune of Charbonnières (in the Rhone département) the company Bouygues Telecom installed on land within the commune of Tassin la Demi-Lune on a plot numbered xxx on the local map belonging to Xxxx, a mobile phone base station consisting of a concrete pylon in the form of a tree, 19m high, as a support for antennas and technical apparatus.

Mr and Mrs Xxxx have lived since June 2003 in Tassin la Demi-Lune at Xxxx with their two children, their house being situated on plot number xxx on the local map, surrounded by the land of lots number xxx.

Mr and Mrs Xxxx have lived since September 1997 with their six children, their house being situated on plot number xxx on the local map.

Mr and Mrs Xxxx live with their three children on plot number xxx opposite that of the Xxxx family.

In view of the height of the pylon, the company Bouygues Telecom submitted to the Town Hall of Tassin la Demi-Lune a declaration of works not requiring a building permit, in accordance with article R 422-2 (e) of the town planning regulations.

By a decree of 13 December 1994 the mayor of the commune authorised the realisation of the works specified in the declaration; the work of installation was carried out at the end of 2005 and at present the site covers an area of 2km².

Having in the first instance submitted to the administrative court in Lyon two requests intended to obtain on one hand, the suspension of the decree of 13 December 1994 authorising the erection of the mobile phone station, and on the other, the cancellation pure and simple of this decree, Mr and Mrs Xxxx, who live close to the base station, and with whom Mr and Mrs Xxxx and Mr and Mrs Xxxx allied themselves, on 18 January 2007 brought an action against the company Bouygues Telecom with a view to having the company Bouygues Telecom sentenced to remove the installation which is the subject of this litigation, with a penalty of 500€ per day of delay, and to having it sentenced to pay damages for the exceptional nuisance to one's neighbour and the depreciation of their house.

In its judgement of 18 September 2008, the Crown Court of Nanterre sentenced the company

Bouygues Telecom, with immediate effect, to:

- Remove the transmission station, subject to a penalty of 100€ per day of delay following a period of four months counting from the day following the announcement of the verdict;

- To pay the sum of 3000€ each to Mr and Mrs Xxxx, to Mr and Mrs Xxxx and to Mr and Mrs Xxxx, as damages for their exposure to a health risk.

It dismissed the plaintiffs' request regarding the depreciation of their house and the visual nuisance and sentenced the company Bouygues Telecom to pay the sum of 3000€ [to the plaintiffs] in accordance with article 700 of the civil code, and to pay costs.

The court considered, with regard to the health risk, that:

- While the scientific discussion remains inconclusive, the company Bouygues Telecom has not demonstrated in the present case either the absence of risk nor the respect of any principle of precaution, since, apart from two administrative approvals that are not sufficient to do this, none of the documents provided relate specifically to the installation in question;

- To expose one's neighbour against his will to a risk that is certain and not hypothetical, as claimed by the defence, constitutes a nuisance to one's neighbour, its exceptional quality residing in the fact that it has a bearing on human health;

- The removal of the risk in this case can only be obtained by the removal of the installation.

It noted with regard to the visual nuisance that this is not established, even less so its exceptional character, thus the request of the couples Xxxx on this matter should be dismissed, and that there were no grounds for accepting the plaintiffs' claims with regard to the depreciation of their houses.

The company Bouygues Telecom lodged an appeal against this judgement.

On the authority of the notice issued on 21 November to summon the couples Xxxx, Xxxx and Xxxx to appear before the court on 7 January 2009, the company Bouygues Telecom complains that the sentence passed is based on an error of fact, in that it states that a definite risk to health exists, whereas scientific studies do not confirm the hypothesis of a risk for people living near base stations, and that scientists, when they invoke the principle of precaution, note the absence of risk where base stations are concerned.

The company notes that the studies taken into account by the first judges can be and have been contested and are in any case irrelevant, insofar as they refer to the use of mobile phones and not to base stations, which are at issue in the present case.

It observes that in judging that it has not produced any "specific" document demonstrating the absence of risk, while the plaintiffs have not complained of any pathology, the court has shifted the burden of proof onto the defendants.

It maintains that the risk invoked by the plaintiffs cannot be construed as harm that can be compensated on the basis of the theory of exceptional nuisance to one's neighbour, insofar as this risk is in the present instance only hypothetical.

It points out that the uncertainty as to whether the risk will materialise concerns not only the harm itself but also the link of cause and effect between this potential harm and their activity.

In consequence they request the appeal court to annul the previous judgement and, reconsidering the case, to release them from the sentence pronounced against them, to dismiss all the claims of the couples Xxxx, Xxxx and Xxxx; and to sentence them to pay 1000€ each to the company in application of the article 700 of the civil code, and to pay costs.

* * * * * The respondents Mr and Mrs Xxxx, Mr and Mrs Xxxx and Mr and Mrs Xxxx are in favour of confirmation of the judgement passed insofar as it has ordered that the installations be dismantled, requesting in addition that the penalty for delay be raised to 500€ per day and that the company Bouygues Telecom be sentenced to pay, on the basis of exceptional nuisance to one's neighbour, in compensation for the harm already caused linked to exposure to a health risk the sum of 10,000€ each to Mr and Mrs Xxxx, to Mr and Mrs Xxxx and to Mr and Mrs Xxxx, and moreover to pay to the respondents as a group a sum of 7500€ in accordance with article 700 of the civil code.

They point out that the acknowledgement of the responsibility of the one who causes exceptional trouble to his neighbour is not based on the proof of wrongdoing but on the existence of a nuisance as experienced by the plaintiff.

In the present case they emphasise the fact that as a result of the installation very near their house they and their children are exposed to a health risk that creates a disturbance that should be rectified by the removal of the danger and compensation for the harm caused.

They draw attention to the fact that the scientific controversy surrounding the effects of electromagnetic radiation linked to mobile phones, which are far from being proved harmless, increases the intense feelings of anxiety created by the proximity of the phone mast which emits a beam in their direction, since the risk affects health, and that many national and international scientific studies known to the respondents show that the pathologies associated with exposure to electromagnetic radiation of the mobile phone type can be very serious, for example various types of cancer.

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.

They conclude from this that simply respecting the official limits does not remove the risk, in particular that caused by the non-thermic effects of electromagnetic fields.

They do not accept that the distinction between the radio waves from mobile phones and that emitted by relay stations is relevant and emphasise that it is a known fact that the latter emit extremely low frequency (ELF) microwaves, which means that they should be placed in category 2B of the WHO classification that recognises potential harmfulness, since this category "may be carcinogenic in man".

They have noted, in addition to the warnings contained in various appeals from doctors emphasising the urgency of fixing new standards, the fact that various member states of the European Union have adopted limits below those in force in France or even below the emission levels imposed by charter in certain cities such as Paris or Besançon, levels very much lower than those specified in the decree of 2002.

They point out that the situation imposed on them by the close presence of the phone mast constitutes a violation of the individual's right "to live in an environment that is balanced and respectful of health" and that the right to take preventative action in situations involving private individuals, which is not disputed in the law relating to the environment, in the social law recognising the right of a salary earner to a pension, and on the issue of unfair competition, must "make it possible to sanction behaviour in terms of the risks of harm in the future to which others are subjected."

In addition they emphasise that imposing a waiting period until the risk is realised would result in the prolongation of an exceptional and illegal risk and would make the victim suffer the eventual result.

Further they point out that even if the outcome of the risk is still a matter of conjecture, the certainty that it exists, as revealed by the controversy among scientists, is enough to cause significant psychological distress to the victim.

They request compensation for harm linked to exposure to a health risk, the psychological distress which is of a kind to affect their personal situation, and the harm to the value of their capital arising from the depreciation of their property resulting from the actual presence of the phone mast on a property adjacent to theirs and affecting particularly the Xxxx couple, which has resulted in the depreciation of the value of their house.

Reasons for the Judgement:

Considering that the appeal lodged on 19 November 2008 by the company Bouygues Telecom was duly registered under the number 08-8775 preceding the authorisation to issue a summons which resulted in the delivery and deposition of a notice to attend on 27 November 2008 registered under the number 08-9058;

That since they concern the self-same matter there is cause to order that the dossiers listed under the numbers 08-9058 and 08-8775 be treated as one;

Considering that it is not contested that the installation in question operates within the limits specified by the decree of 3 May 2002, and that the reading taken on 1 June 2006 by Dr Pierre Le Ruz at the request of Mr and Mrs Xxxx shows that the effective electrical fields (RMS) measured in volts per metre (V/m) between the hours of 7 and 7.45pm were from 0.3 V/m to 1.8 V/m;

That it is also established that the respondents who live closest to the antenna installed in the commune of Tassin la Demi-Lune are not exposed to a risk linked to the thermic effects of electromagnetic radiation;

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;

Considering that in the present case the original plaintiffs draw attention in particular to a health risk caused by exposure to the non-thermic effects of electromagnetic radiation and notably to the exposure to radio waves of extremely low frequency (ELF), produced discontinuously in brief impulses (pulsed);

Considering that, according to the judgement of 11 June 2004 pronounced by the Council of State, it appears from a report submitted to the government in 2001 that in the current state of scientific knowledge it is not established that electromagnetic radiation has non-thermic effects that are dangerous for public health;

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