Recent French case law on electromagnetic fields ("EMF") and base stations has been marked by uncertainty. Indeed, inconsistent decisions were handed down on the ground that the health risk was merely hypothetical.

Until 2009, dismantlement of base stations ordered on the basis of a potential health risk

A number of decisions ordered network operators to dismantle base stations on the basis of abnormal private nuisance or on the basis of the precautionary principle.1

On 4 February 2009, the Versailles Court of Appeal ("Cour d'appel") ordered the dismantlement of a base station in Tassin-la-Demi-Lune (Rhône) on the basis of a "potential health risk", which caused abnormal nuisance to the neighbours.2   The dismantlement was to occur within four months of the decision subject to a penalty of 500 Euros per day overdue.  The Court also ordered the network operator to pay 7,000 Euros to each of the three couples who had filed the lawsuit, as compensation for their exposure to a health risk.

The Court held that although the effect of electromagnetic fields on one's health had yet to be proven, there were no grounds to categorically deny the existence of an impact on public health following exposure to such base stations.  Furthermore, while the realisation of the risk remained hypothetical, it was clear from scientific publications and legislation in other European countries that the uncertainty over the harm from exposure to electromagnetic fields emitted by base stations remained and could be considered both serious and reasonable.  The claimants could not be guaranteed the absence of a health risk.  As a result, the Court held that the legitimate fear of those living in the vicinity of the base station can be considered an abnormal private nuisance as it concerns a matter of health.

In a summary judgment handed down on 11 August 2009, the Créteil Civil Court prohibited a network operator from installing a base station on the roof of a block of flats subject to a penalty of 5,000 Euros per day of non-compliance with the order.3   The Court held that on the basis of scientific publications, the installation of this base station and the subsequent exposure to EMF would have exposed those living in its vicinity to a potential health risk.  Therefore, it held that the network operator had not complied with the precautionary principle and had caused abnormal nuisance to the claimants.4

However, more recently, the Courts have dismissed claims to dismantle base stations.  Indeed, the precautionary principle no longer seems to justify dismantling, precisely because the health risk has not yet been proven.

Since 2009, Courts consider that a potential health risk is insufficient to justify the dismantlement of base stations

On 15 September 2009, the Lyon Civil Court dismissed a claim for a base station located in front of a maternity and primary school to be removed.  The claimants based their claim on the existence of abnormal private nuisance or alternatively on the ground of the precautionary principle.

Both grounds were dismissed by the Lyon Civil Court (decision upheld by the Lyon Court of Appeal on 3 February 2011).  Taking into consideration the fact that the base station had been installed more than ten years before, the Court held that the existence of a health risk is not proven.  As a result, the dismantlement could not be ordered on the basis of a hypothetical risk and, therefore, the base station could not be considered as an abnormal private nuisance.  Similarly, the dismantlement could not be ordered on the basis of the precautionary principle as scientific knowledge does not establish that there is an actual risk for those living close to a base station.  Consequently, the fear created by such a hypothetical risk cannot justify the dismantlement of the base station.

Since then, other Courts have followed the same reasoning.  On 22 April 2010, the Nevers Civil Court took a balanced and original approach in ruling against a network operator.  Parents of children attending a school located less than 50 metres away from a base station requested its dismantlement.  The Court decided on the same grounds as mentioned above: a hypothetical health risk is not enough to establish abnormal private nuisance.  However, such a risk is sufficient to justify the application of the precautionary principle in a manner proportionate to the cost of the dismantling and the health risk.  Therefore, the Court granted six months to the operator to (i) present a complete survey of the site, and (ii) suggest measures which could be taken to limit emissions towards the school and the neighbourhood to a level that would be acceptable for all.  Should a suitable plan not be found, the network operator faced the risk of having to dismantle the base station.

Conclusion

French case law has been quite uncertain on the matter of base stations.  Doubts as to the very existence of a health risk caused by electromagnetic fields emitted by base stations constituted the basis for ordering their dismantlement and then for refusing their dismantlement.

On 31 May 2011, the International Agency for Research on Cancer (IARC) classified, for the first time, radiofrequency electromagnetic fields as "possibly carcinogenic to humans".  This announcement, from a body of the World Health Organisation, has attracted considerable media attention.  It remains to be seen what effect, if any, it will have on future cases seeking the blocking or the dismantlement of mobile phone base stations.  In any case, uncertainty may not be solved until the French Supreme Court ("Cour de cassation") hands down a decision in this respect.