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S.A. Mobistar

Country/Territory
Belgium
Type of court
National - higher court
Date
Apr 10, 2003
Source
UNEP, InforMEA
Court name
Conseil d'Etat
Seat of court
Brussels
Judge
Hanotiau, Guffens, Daout
Reference number
118214
Language
French
Subject
Legal questions, Environment gen.
Abstract

The main output of this case is that the precautionary principle is expressly recognised in the Belgium legislation (article 23(3)2° and 3° of the Constitution). In this case, a company, SA Mobistar, requested a building permit to construct a mobile phone relay antenna. The administrative authorities denied to grant the building permit. Appeal court ruled that this decision was justified. SA Mobistar decided to bring an action against this ruling. This decision is confirmed by the Conseil d’Etat.

The Court stated that the precautionary principle means the adoption of precautionary measures such as the refusal to construct mobile phone relay antenna around community buildings such as school, hospitals or convalescent home, or to build many relay antennas on a residential buildings.

Then it ruled that even if the precautionary principle is not explicitly mentioned in the Walloon legislation, any risk of violating the right to health or the right to an healthy environment (article 23(3)2° and 3° of the Constitution), must be taken into account when is assessed the compatibility of the project , for which the building permit is requested, with the zone of destination or the neighbourhood.  

Consequently, it is possible to invoke this principle in the assessment of the compatibility of the project. The scientific uncertainty on the harmful effect of electromagnetic waves emitted by mobile phone relay antennas can justify the invocation of this principle.

Full text
CE Belgium, 10 April 2003, SA Mobistar, n°118214.pdf
118214.pdf