THE APPROPRIATENESS AND LEGAL FEASABILITY OF EU MEASURES TO REDUCE ELECTROMAGNETIC POLLUTION
The exposure of living organisms to electromagnetic fields (EMFs) is a naturally occurring phenomenon, but its steady exponential increasedue tothe everyday use of EMF-emitting products and servicesmakes it a problem.Precautions were first consideredin 1999, following the ICNIRP's[1] guidelines on exposure limits, which were incorporated into the 1999 Council recommendation. Since then,related technologieshavemade significant advances andnumerous scientific studiesadvocate measures but have failed to pinpoint the precise degree of health and environmental risks. The WHO therefore plans to carry out a risk assessment in 2016, based on recent and ongoing research.
The 1999 limits remainunchanged due to lack of consensus on EMF-related risks. Nevertheless, some states have adopted measures, such as setting precautionary limits below the official ceilings; replacing Wi-Fi with fibre optic cables in public buildings; banning mobile phones in schools; or issuing medical guidelines for diagnosing and treating EMF-related illnesses.These isolated measures reflect growing calls for national and EU measures, as exemplified by the European Parliament (2009) and the Council of Europe (2011) resolutions.
The precautionary principleis enshrined in Article 174 TFEU. It is internationally recognised in environmental law and increasingly cited by the WHO. It is the basis for adopting preventative measures, pending conclusive scientific data when there are reasonable grounds for concern about a product's potential environmental or health hazards. It is guided by comprehensive scientific assessment; an assessment of the consequences of inaction; and immediate stakeholder involvement based on theassessment results.This enables authorities to decide whether measures are needed. They mayimplement public information campaigns, research programmes or proportionate legislation if they think the risks could be high.The Court of Justice has specified that pending conclusive scientific data, the risks must be sufficiently documented on the basis of available data.
The grounds for its applicationat EU level to electromagnetic pollution and hypersensitivity are far morethan indications (see COM(2000) 1 final) or early warnings (Council of Europe) since there are court decisions recognising EMF-related permanent work disability as well as national legislation (Sweden).The Commission's 2002 report on the 1999 Council recommendation limited its scope to the environment becausethe EU's remit in this area is far broader than for public health and because radiation affects all living organisms. Since then, this restrictive application has been superseded by intervening measures which applyit to consumer and worker protection, e.g. in relation to fisheries (COM(2013) 319) or animal health (COM(2013) 260) policies.
Legal basis for possible EU legislation on reducing exposure to EMFs
EU action in the area of public health is limited to supporting, coordinating and supplementing the actions of Member States, which have full responsibility for defining, organising and delivering health services (Article 6 TFEU and Article 168 TEU). As a result, this is not the appropriate basis for EU action.
Public policy and legislative harmonisation in the internal market - Articles 36, 52 and 62 TFEU recognise public morality, public policy or public security and health protection as grounds for restricting the free movement of goods and services. Over time, the case-law of the Court of Justice has recognised these national measures as a way of compensating for the absence of EU health protection rules. In this instance,the legal basis for EU measures would belegislative harmonisationto ensure the functioning of the internal market (Article 114 TFEU).Numerous EU public health protection rules have beenadopted on this legal basis.
The environmental remit - Numerousenvironmental measureswithin the EU remit impact directly on human health, (e.g. air and water quality, soil remediation, the marketing of chemicals) and are based on the precautionary principle and principles of preventive action.
Instruments and technical standards aimed at reducing the risks of EMF exposure
The exposure limits set out in the 1999 Council recommendationare based on international scientific criteria (safety factors of 50) andhave led to a degree of harmonisation. However, sincetheyare non-binding, states have taken three different routes: applying thesestandards strictly, improving on them, or failing to meet them.Based on the precautionary principle,the scientific evidence available was not deemed to warrant a review of these limits (2002 Commission report) but strengthened vigilance, research and reports from the SCENIHR[2]were advocated (2008 Commission report).In its 2009 resolution, the EPrefers to"preventive exposure limits"(i.e. lower than those advocated in 1999)adopted by EU and non-EU countries andurges the Commission to review the recommendation's scientific basis and limits in that light.
Exposure limits are not enough. It will take more than compliance with limits to minimise exposure to non-ionising radiation. Recommendations to adopt EU and national measures have come from international forums including the EESC, the Council or Europe, the EP and the June 2000 Salzburg resolution.They all point to a completely different regulatory framework, based on a preventative approach. Although their views are not identical, they all agree on the need to involve stakeholders (including the general public)in EMF-related decision-makingand they foresee a much broader strategic framework.Examples of the measures advocated by these forums are highlighted below.
a) Spatial planningshould set minimum distances for high-voltage power lines and distances and levels for GSM, UMTS, Wi-Fi and WiMaX in inhabited areas. The zero option should be considered, and radiation-free white zones established using on-the-ground assessments. Due to the environmental and direct health impacts, citizen participation should be robustand documented, in line with the Aarhus Convention. Specific zoning requirements could be introduced and linked to the use of the 2014-2020 European funds such as the new Integrated Territorial Investment tool.
b) Prior authorisation to deploy EMF-emitting installations or mastsshould involve the same stakeholders as the planning process on the same terms and for the same reasons.
c) Information and transparencycall for clear labelling systems that provide information on exposure levels. National authorities should develop and updateeasy-to-access "exposure maps" on local and regional websites,identifying high-voltage installations and towers, radiofrequencies, microwaves, network repeaters, telephone masts and exposure levels. The Commission should publish an annual report on EMF radiation exposure and monitor potential health hazards, providing data on disability and illness.The Commission should coordinate an EMF-prevention code of good practice, outlining existing voluntary preventative measures in EU and non-EU countries.
d) Concerning the harmful effects of electromagnetic pollution, a general communication on the precautionary principle's application would establish general criteria for involving businesses and the authorities in dealing with the financial consequences of identified harmful impacts.
Businesses that have marketed harmful products/servicesshould be subject to monitoring, control and notification requirements similar to those established under the GMO Directive.Producers and importers should be required to demonstrate the absence of hazards. This would have to be studied on a case-by-case basis but should fit into a general framework. The Council of Europe's criticism of insurance companies refusing to cover EMF hazards in their policies should be remembered in this connection.
Authorities that have been actively or passively involved in marketing harmful products/servicesshould meticulouslyinvolvecitizens in decisions that could result in further exposure and use the exposure maps to carry outcontinuoushealthmonitoring and impact assessments.
Finally, it is impossible to disregard these recommendations in the face of theextraordinary increase in exposure. The treaties provide the legal basis for action to avoid isolated and uncoordinated national measures that impact on health, the environment and EU market freedoms. The mistakes made with regard to asbestos, lead,fossil fuels and tobacco must not be repeated.
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[1]International Commission on Non-Ionising Radiation Protection
[2]Scientific Committees on Emerging and Newly Identified Health Risks