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Lawyers report on mobile phones and Health

 

Lawyers from legal firm "Robin des Toits" have published minutes from a meeting early in 2011 concerning mobile telephony and possible health effects. The minutes of the meeting are as follows:

Minutes of January 25, 2011, concerning the establishment of a European Coordination of Lawyers in the field of mobile telephony and health.

Present:

- Michèle Rivasi, MEP, Chair of the meeting,
- Gyde Knebush, Flemish MP (Green Party)
- Richard Forget, lawyer Robin des Toits (France)
- Me Emmanuelle Guyon, lawyer "Robin des Toits" (France)
- Mr. Philippe Vanlangendonck, lawyer (Belgium)
- Mr. Oliver Ertl, lawyer (Austria)
- Mr Vittorio Marinelli, lawyer (Italy)
- Me Giuseppina Maurizi, lawyer (Italy)
- Mr. Michael Bell, lawyer EM Radiation Research Trust (UK)
- Brenda Short, Legal advisor (UK)
- Kerstin Stenberg, representative International EMF Alliance (Sweden)
- Jean-Luc Guilmot, President Teslabel (Belgium)
- Etienne Cendrier spokesman for Robin des Toits (France)

The meeting is chaired by Michèle Rivasi, who states the goals of the "Coordination" ; to repeat when possible the same type of lawsuits and try and obtain phone masts dismantling and force both manufacturers and the European Commission to revise the standards for public exposure based on France example.

Richard FORGET lawyer of "Robin des Toits", says he obtained phone mast dismantling based on nuisance and the precautionary principle. The Court of Appeal of Versailles recognized the existence of a scientific controversy and agreed with the complainants, stating that if the risk were to happen we would face a health catastrophe. It also legitimized the concerns of antennas neighbours that no one can guarantee against the occurrence of the risks.

Etienne CENDRIER states that the Versailles decision provoked the "Grenelle des Ondes and "Robin des Toits" took this opportunity to propose to experiment a threshold of population exposure to 0.6 Volts/meter, as recommended by international independent scientists. Robin des Toits defined 0.6 V/m as the mobile technology "social acceptability level". The experiment first results are expected before summer 2011.

Oliver ERTL, explains that in Austria all the lawsuits were lost. All the court cases were based on the demonstration of rsk and have not succeeded, judges based on the ICNIRP (Commission International Protection against Non-Ionizing Radiation) and highly controversial because several members are linked to the Wireless Industry.

He also mentions the cost of legal proceedings in Austria, which are very expensives, and the public service character assigned to mobile telephony which prevents local residents to oppose to the installation of phone masts. He has great hopes on the revision of standards and is awaiting results from the French example.

Mr Michael Bell laments the lack of openness of the judiciary British which bases its decisions on the Health Protection Agency which believes in ICNIRP. He is close to Sir William Stewart, author of two official reports advocating the application of ALARA (As Low As Reasonably Achievable) for public exposure to EMF. Brenda Short details the evolution of jurisprudence in the United Kingdom (see below).

Kerstin STERNBERG indicates that Swedish authorities also rely on the standards and the opinion of ICNIRP. She says there is a good technology acceptance by the public. The phone masts, as in Austria, are also associated with public service which prevents residents to oppose new implantations. According to her, no trial has been won on health grounds. Swedish experts are, for some of them members of ICNIRP.

Jean-Luc Guilmot reported several recent studies indisputable but not replicated, which should lead to a revision of standards. It describes the activism that led to a fake reduction of exposure level in Brussels.

Maître Philippe Vanlangendonck wants to study the legal ways to sue WHO (World Health Organization) and ICNIRP because of their scientifically biased advice and the existence of vested interests.

Michèle RIVASI states that to appeal to the European Court of Justice, all national courts must have been tried. She relies on the report of the Council of Europe to undermine ICNIRP, requesting the invalidation of their advice because of existing conflicts of interest. She hopes that the Committee responds to the independent scientists.

Gyde Knebusch indicates that a lawsuit was won in Flanders on recognition of a health risk.

Lawyer Vittorio GIUSEPPINA and Lawyer Maurizi MARINELLI believe that judicial proceedings must prove the existence of risk. The procedures are very complex in Italy because of the coexistence of local and national rights.

Michèle RIVASI announces a conference in June 2011 bringing together NGOs, Representatives of insurance companies, and MEPs. She also mentions the possibility of using the Citizens' Initiative that requires one million signatures in the eight countries of the Union.

In conclusion: there is a debate among lawyers on the nature of suitable procedures, whether it is sufficient to base it on the Precautionary Principle or whether to establish health risks. Experience so far shows that the procedures based on Precaution and supported by a well structured activism are more liable to achieve results and significant openings as is the case in France.

NB: Since this meeting, several members of lawyers Coordination have been contacted by both colleagues and individuals. Industry representatives were concerned about the "judiciary climate".


Brenda Short from the UK: I am legal advisor to Powerwatch, an NGO involved in the EMF debate. In the UK, planning is a devolved matters. However, law relating to mobile phone masts is similar in all 4 UK countries: England, Wales, Scotland and Northern Ireland (although more masts need full planning permission in Scotland).

National Planning Policy in England for all electronic communications, including mobile phone masts, is set out in Planning Policy Guidance Note 8 (PPG8). Local planning authorities (LPA), normally determine planning applications in accordance with their local development framework (a local plan drawn up the local authority) and consider national planning policies including PPG 8. The Govt. issued guidance on planning permission and mobile phone masts.

The Govt. also issued "Code of Best Practice on Mobile Phone Network Development" drawn up jointly by industry and local and central government. Depending on the circumstances of the mobile phone mast, it may need full planning permission or prior approval or prior notice. Masts over a certain height, either stand alone or on buildings, require full planning permission. Masts sited on buildings are less likely to need full planning permission. Site finder is a voluntary scheme whereby some of the operators give map locations of phone masts

There has been little success with court action by local residents/campaigners.

I have been a member of the UK SAGE group which was set up in 2004 to consider possible precautionary measures in relation to Extremely Low Frequency Electric and Magnetic Fields (EMFs) (mainly ELF EMF from powerlines, RF not considered). Following publication of the 1st SAGE report in 2007, I wrote a 105 page legal paper considering whether existing legislation (both national law and EU derived legislation) could be applied to any potential pollution from EMFs. It also considered other legislation in relation to powerlines / EMFs and a how a precautionary approach could be adopted.

Although the paper referred to ELF EMFs, much of the paper is relevant to RF EMFS as well. eg. Should EMFs come under pollution control, EIA or other environmental legislation? I highlight the problem from the accumulation of pollution from more than one source (both EMFs from more than one source and other pollution).

I refer to the law relating to the precautionary approach including EU law which provides for member states to adopt a precautionary approach in environmental matters. It was decided by the English Court of Appeal in R v Secretary of State for Trade and Industry ex parte Duddridge (1995) that, the UK Government was not obliged to adopt a precautionary principle for national policies under Article 130r (now Article 174) of the EU Treaty unless required by an EU directive, The case was not referred to the European Court of Justice for a preliminary ruling.

In comparison, under the EU Habitats Directive, a project or plan is not allowed to proceed unless the absence of harm can be proved. A plan or project likely to have significant effect on the site is only to be authorised if it is ascertained that it will not adversely affect the integrity of the site, i.e. where no reasonable scientific doubt remains as to the absence of such effects.

My legal paper included some references to mobile phone masts court cases, including one heard by the Court of Appeal in Northern Ireland, HM (a minor), Re Application for Judicial Review [2007] NICA. The court considered whether a child's human rights under Article 240 and 841 of European Convention of Human Rights were breached by Department of Environment for Northern Ireland by allowing a mobile phone mast with several antennae to be sited near her home. The court dismissed the case, stating "But there is nothing in the jurisprudence of ECtHR which suggests that something imperceptible, intangible and having no effect on the senses can potentially infringe article 8". I believe this case was wrongly decided as RF fields can be physically detected and measured with specialist equipment. I brought with me to the meeting a meter which measures both watts per square metre and volts per metre and is capable of measuring RF radiation from a phone mast.

I also mentioned that in the UK, the Govt. is planning to roll out a programme of Smart Meters using wireless technology.

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