Precautionary Principle

In the EU the precautionary principle in relation to RF EMF is applied exclusively with limits that protect the population against overheating. What RF EMF also cause is completely disregarded. Studies show adverse effects already far below the limits applied in Europe.

The European Treaties have explicitly established that the precautionary principle applies in the field of EU environmental policy (Article 191 para. 2 TFEU).

It is also recognised in the case law of the Court of Justice of the European Union (ECJ) that, beyond environmental law, it is a general principle of Union law that applies in particular in the field of health protection. *1

The precautionary principle is based on the idea that if there is uncertainty about the existence or extent of risks, protective measures can be taken without waiting for the existence and severity of those risks to be fully demonstrated. *2

The precautionary principle is anchored in EU law and international law. According to Article 191 para. 2 sentence 1 TFEU, the EU's environmental policy is based on the precautionary principle and the principle of preventive action. New technological developments are also subject to the precautionary principle.

The precautionary principle also plays an important role in many decisions of the ECJ, for which a few selected example cases are given below.

– If an authority has to approve a plan or a project and there is uncertainty as to whether the plan or project will have an adverse effect on a habitat conservation area, the ECJ obliges the authority to apply the precautionary principle provided for in Art. 6 (3) p. 2 of the Habitats Directive 92/43 EEC and to effectively prevent the adverse effect on the conservation areas caused by the plan or project. *3

– When approving projects such as the construction of a power plant, the approval authority must also take into account the precautionary principle when carrying out the FFH impact assessment, the protective measures with which any directly caused harmful effects are to be prevented or reduced in order to ensure that the project does not adversely affect the protected area. *4

– The same applies insofar as a decision is to be made on exceptions pursuant to Art. 16 (1) Habitats Directive 92/43 EEC. If the examination of the best available scientific data reveals uncertainty as to whether the favourable conservation status of a population of a species threatened with extinction can be maintained or restored despite the derogation, the Member States are obliged under the precautionary principle enshrined in Article 191(2) TFEU to refrain from adopting or implementing such an exemption regulation. *5

– In the examination of plans and programs, there is also an obligation to carry out an impact assessment if it cannot be ruled out on the basis of objective circumstances that the plan or project in question will have a significant adverse effect on the protected area. *6

– In a preliminary ruling on the validity of Regulation (EC) No. 1107/2009 of the European Parliament and of the Council of 20 October 2009 concerning the placing of plant protection products on the market and repealing Directives 79/117/EEC and 91/414/EEC, the ECJ *7 stated that in the event of uncertainty as to the existence or extent of risks to human health, protective measures may be taken without waiting for the existence and seriousness of those risks to be fully demonstrated. *8

It follows from this case law that if a certain risk for 5G appears to be sufficiently documented on the basis of scientific data, which is the case in view of the abundance of critical scientific reports, at least precautionary measures can be taken. The precautionary principle is ultimately a special manifestation of the principle of proportionality. According to this principle, the risks disclosed by science must be weighed against the concrete benefits that are also associated with 5G. *9 The more serious the health consequences for parts of the population, the stronger the restrictions on the introduction of this new technology.

In view of the lack of scientific knowledge about the possible consequences of mobile phone radiation, the precautionary principle provides important indications of the necessities to be fulfilled before the introduction of a new technology.

Studies indicate that an immediate application of the precautionary principle before employment of 5G is highly necessary. Based on The Legal Opinion on 5G by the lawyer Christian F. Jensen which concludes that: Subject conclusion (p. 10)
There is clear scientific documentation that radiofrequent electromagnetic radiation, also below the employed limits in Denmark, cf. item 2.1 below, causes DNA damage to both humans and animals. Panagopoulos (2019) documents that not only the strength of radiation is significant to the expected damage. Further it is documented that the findings will also be applicable to 5G, owing to the commonalities between the technologies." Subject conclusion (p. 24)
It seems clearly and scientifically well documented that exposure to radio frequent electromagnetic radiation (also below the currently used limits in Denmark, cf. item 2.1 below) can be carcinogenic, and in this respect pose a health risk to humans, which could prove life threatening.
Add to this the by Pall 2018 summarised scientific documentation of a range of further kinds of damage, incl. reduced fertility, spontaneous abortions, neurological/neuropsychiatrical effects, etc.
Further, it must be concluded that children are especially vulnerable, and that several studies point to a possible connection between exposure to radiofrequent electromagnetic radiation and behavioural difficulties, autism, reduced perception, etc.
" Subject conclusion. (pp. 30)
As is the case in relation to health damages and risk thereof for humans, it appears highly scientifically well documented that radiofrequent electromagnetic radiation, including that which stays within the (Danish) authorities' guidelines, respectively is and can be damaging to the health of birds and (in extenso) their habitats. Birds have a special trait that is their ability to orientate themselves partially based on an interaction with the Earth's naturally occurring magnetic field. Radiofrequent electromagnetic radiation's effect on birds' biologically determined abilities to orientate themselves can lead to the destruction of a species, including inside specially designated protected habitats. Particular to this issue, however, it must be highlighted that, for the time being, this does not seem to relate to 5G-frequencies, etc., though it could be the case. It appears that at the present time studies on this only show that birds’ biologically determined sense of orientation is negatively affected by radiofrequent electromagnetic radiation." Subject conclusion. (p. 37)
It appears to be scientifically well documented that radiofrequent electromagnetic radiation, also within the limits set by the (Danish) authorities, respectively are and can be damaging the health of insects.
Add to this the special condition that also the abilities of insects to orientate are in part based on interaction with naturally occurring fields in e.g. the flowers to be pollinated. Radiofrequent electromagnetic radiation's effect on the biologically determined abilities to orientate can be devastating for the preservation of the species.
Further, the disappearance of insects from an area can have vital importance for insectivorous birds' abilities to survive as species.
" Subject conclusion. (p. 38)
It seems scientifically well documented that radiofrequent electromagnetic radiation, also when inside [within] the limits set by the (Danish) authorities, respectively is and can be damaging to plants. Add to this, that the disappearance on plants from an area can have vital importance for the survivability of birds and insects as species."

1.3. Overall subject conclusion.(p. 39)
It is my belief that the scientific research materials analysed above document a clear and weighty causal link between the exposure of humans and animals to radiofrequent electromagnetic radiation on the one hand, and a range of damaging effects as well as possible damaging effects on both groups, including life threatening, on the other hand. There is in addition a well supported causal link as it pertains to damage done to plants. This is also true below the currently set limits, cf. also item 2.1. below." Subject conclusion. (p. 46)
Against the background of the scientific results in item 1.2 above there remains in my assessment no reasonable doubt that the 5G-system is an industrial activity, which poses danger to humans. As long as the current limits (as announced by the Danish Health Authority, cf. item 2.1 above) are in use, life threatening health conditions caused by radiofrequent electromagnetic radiation by activating the 5G-system must quite clearly be expected, and this would be in contravention with the positive obligations of the Danish state according to ECHR art. 2. As it must be assumed that the risk is well known to the Danish state, it is also obvious that it would incur liability in relation to the 5G-system, no later than when the life threatening health conditions appear."

3. Conclusion and final remarks. (p. 64)
"It is the conclusion of this legal opinion that establishing and activating a 5G-network, as it is currently described, would be in contravention of current human and environmental laws enshrined in the European Convention on Human Rights, the UN Convention on the Rights of the Child, EU regulations, and the Bern- and Bonn-conventions."

German analysis in Springer Nature Switzerland AG by Hans-Jürgen Müggenborg: The precautionary principle when expanding the 5G

1 ECJ, Judg. v. 5 May 1998, Case C-180/96, ECLI:EU:C:1998:192, United Kingdom v. Commission, para. 99.

2 Court of Justice of the European Union (ECJ) , Judgement from C-77/09, ECLI:EU:C:2003:431, Monsanto Agricoltura Italie u.a., Rn. 111; EuGH, Urt. v. 22. Dezember 2010, Rs. C-77/09, ECLI:EU:C:2010:803, Gowan International Trade and Services, Rn. 73.

3 ECJ, Judgment of 11.04.2013 - C-258/11, NVwZ-RR 2013, 505 = NuR 2013, 343 = BeckRS 2013, 80740; ECJ, Judgment of 15.05.2014 - C-521/12, NVwZ 2014, 931 = NuR 2014, 487 = ZUR 2014, 418 = BeckRS 2014, 80961 (para. 26 - 28).

4 ECJ, Judgment of 26.04.2017 - C-142/16, NuR 2017, 393 = UPR 2017, 300 = ZUR 2017, 414 = DVBl. 2017, 838 with comment Stüer = BeckRS 2017, 107776 - Kraftwerk Moorburg (para. 34 and 40).

5 ECJ, Judgment of 10.10.2019 - C 674/17, NVwZ 20219, 1827 = DÖV 2020, 33 = NuR 2019, 756 = ZUR 2020, 54 = BeckRS 2019, 23630 (para. 66).

6 ECJ, Judgment of 07.09.2004 - C-127/02, ECR I 2004, 7449 = EuZW 2004, 730 = BeckRS 2004, 75716; ECJ, Judgment of 17.04.2018 - C- 441/17, NVwZ 2018, 1043 = NuR 2018, 327 = ZUR 2018, 349 = BeckRS 2018, 5422.

7 OJ 2009 No. L 309, p: 1.

8 ECJ, Judgment of 01.10.2019 - C-616/17, NVwZ-RR 2019, 1038 = BeckRS 2019, 22830 (para. 43).

9 Sobotta, Zur Rechtsprechung: News from the precautionary principle - any doubt excluded?

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