Aktualizacja dyrektywy 2011/92/UE w celu włączenia rozwoju sieci 5G i wszystkich przedsięwzięć telekomunikacyjnych jako projektów do załącznika 1, aby zapewnić poddanie takich przedsięwzięć ocenie oddziaływania na środowisko lub kontroli zgodnie z wymogami tej dyrektywy.
Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment mentions "...an environmental assessment shall be carried out for all plans and programmes ... which are prepared for...telecommunication..."
Therefore Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment must be updated and include all telecommunication including 5G.
Reference to relevant science can be found in the Legal Opinion on 5G from the Danish lawyer Christian F. Jensen and the conclusion: "Establishing and activating a 5G-network — as it is currently described — will contravene current human and environmental laws enshrined in the European Convention of Human Rights, the UN Convention of the Rights of the Child, EU regulations, and the Bern- and Bonn-conventions protecting natural habitat and migrating species".
The Spanish Ombudsman has ruled that the Spanish National 5G Action Plan has not taken environmental aspects into account. The Ombudsman has taken a position on the 5G implementation plan following the complaint lodged by AVAATE and the conclusion is clear: the implementation of 5G technology in Spain has not been subject to prior environmental assessment by the authorities.
In the decision signed by Ombudsman Francisco Fernández Marugán it is emphasized that the Ministry, through its Secretary of State, has ignored various articles in Law 21/2013 of Environmental Assessment, avoided consulting the draft 5G plan and the draft 5G pilot projects for the corresponding environmental body. As the Ombudsman states, the pilot projects carried out will use a frequency band for which safe exposure limits have not yet been set, which is something that is totally contrary to the precautionary principle.
Introduction of 5G based on illegal distribution of competence
However, the EU has drastically changed the technical conditions for the deployment of 5G by removing the competence of the Member States and declaring various technical devices to be permit-exempt according to Regulation 2020/1070. In this way local environmental laws are overruled and the industry can set up any kind of device no matter how harmful to the environment.
This strategy has made it possible to roll out 5G networks in Europe without prior health and environmental impact assessments, and because it was made mandatory to implement it, the Member States had no more say in this area. While the various activities of the environment are usually subject to local impact assessments, the exposure of the environment to radiation, including the dangerous RF EMF radiation, and impacts of digitalization is exempt. Therefore Member States cannot fulfill their obligation to protect the public against such exposure even though it is required of them by national law to ensure a healthy and safe environment for the people living there.
Construction of 5G infrastructures is not only a matter of new technology but also involves environment and public health. The EU has a shared competence in these areas and therefore cannot go beyond its own competences and abolish the competence of the Member states as described above.
We propose that the competence originally given to Member states to assess the environmental impacts of the release of RF EMF into the environment should be restored so it belongs under national law and can be made subject to preliminary impact assessment by a national authority.
Legal arguments for our proposal are:
Article 3 of the TEU: "The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance."
Article 35 of the CFR, Health care: "Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities."
Article 37 of the CFR, Environmental protection: "A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development."