GAIDA v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Hans Gaida, is a German national who was born in 1940 and lives in Neuhäusel in Germany. He is represented before the Court by Mr W. Krahn-Zembol, a lawyer practising in Wendisch Evern, Germany. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a plot of land. He lives on these premises and has been using his property to run an amateur poultry farm since 1984. On 5 July 1995 the Westerwaldkreis Regional Authority (Landrat) issued a building license to Deutsche Telekom AG (“T-AG”), a shareholding company with the German Federal State as its majority shareholder. The building licence entitled the T-AG to expand an existing and legally erected antenna on the plot of land adjacent to the applicant’s premises and to install a mobile phone base station at a distance of approximately twenty metres from the applicant’s house. On 13 September 1995 the applicant filed an objection (Widerspruch) with the Regional Authority with the aim to have the licence revoked. He alleged that the radiation emanating from the base station caused him insomnia and serious health problems including tinnitus and cardiac arrhythmia. Furthermore, the breeding of his poultry had been seriously disturbed with the fledglings not hatching at all or with serious deformations. He finally complained that the adjacent base station reduced the commercial value of his own plot of land. On 28 June 2000 the Regional Authority rejected the applicant’s objection. It noted that the radiation emanating from the base station complied with the standards prescribed by the relevant safety guidelines for exposure of the public to radio-frequency energy issued by the Federal Government in December 1996 (26. Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes, see relevant domestic law below). In the absence of conclusive scientific evidence to the contrary, it had to be assumed that no health damages could be expected. On 25 July 2000 the applicant lodged a motion with the Koblenz Administrative Court (Verwaltungsgericht). Submitting several medical attestations, he alleged that his health problems as well as the breeding anomalies of his poultry had been caused by radiation emanating from the base station. For lack of conclusive scientific evidence, it was impossible to evaluate the risks emanating from base stations, in particular with respect to so-called “non-thermal effects” (effects which have not been caused by warming up biological tissues). Accordingly, a number of experts regarded the relevant safety guidelines to be insufficient. In order to prove the existence of a broad scientific discussion on health risks caused by base stations, the applicant submitted several scientific reports. He requested the Administrative Court to hear expert opinion on the question as to whether there existed a causal link between his diseases, those of his poultry and the radiation emanating from the base station and as to whether the pertinent safety guidelines were sufficient to protect neighbours from harmful effects of radiation. On 30 January 2001 the Koblenz Administrative Court rejected the applicant’s claim, finding that the base station complied with the relevant legal provisions. The Administrative Court noted, firstly, that the radiation emanating from the base station was in accordance with the safety guidelines for exposure of the public to radio-frequency energy. According to an attestation issued by the Regulatory Authority for Telecommunication and Mail on 31 January 1995, the safety distance to be observed amounted to 2.35 metres, while the applicant’s house was removed some twenty meters from the base-station. With regard to the applicant’s right to the protection of his health as guaranteed by Article 2 § 2 of the Basic Law the Administrative Court held that the Government, when drafting the safety guidelines, had considered all relevant scientific information and stayed well within its margin of appreciation. With regard to the scientific reports submitted by the applicant, the Court found as follows: “According to the current state of scientific research, there exists no unambiguous theory of causation which would allow proving non-thermal effects of electromagnetic fields. Taking into account the reports and publications submitted by the plaintiff, in particular the publication on the international conference on mobile phone base stations held in Salzburg on 7-8 June 2000, the necessity of preventive measures with regard to non-thermal effects remains controversial within the scientific community. The positive obligation under Article 2 § 2 of the Basic Law does not require to take into account unconfirmed scientific findings.” The Administrative Court saw no need to obtain further evidence, as the courts were not required to raise data on scientifically unconfirmed issues. On 20 August 2001 the Rheinland-Pfalz Court of Appeal (Oberverwaltungsgericht) refused to grant the applicant leave to appeal. Mainly confirming the Administrative Court’s reasoning, it found that in the absence of any substantial scientific confirmation that the safety guidelines were completely inadequate (völlig unzulänglich), there was no reason to take the requested evidence. With regard to the applicant’s alleged health problems, the Court of Appeal found as follows: “The medical attestation by the general practitioner St. dated 2 October 2000, submitted by the applicant in the administrative proceedings, does not confirm that the unspecified health problems which are listed therein have been caused by the mobile phone base station. The same applies to the medical opinion of Dr Sch. dated 19 January 2000, who merely described the plaintiff’s health problems on the basis of earlier medical reports – apparently without having examined him personally – as typical health problems of persons who lived in the direct vicinity of mobile phone stations and referred to earlier scientific reports dealing with the effects of high frequency radiation. This medical opinion is couched in such general terms that it does not allow assuming a possible causation in the specific case. In the absence of any conclusive, precise indications, but only based on assumptions regarding a causal connection between the phone station and the plaintiff’s health problems, there was no reason to take the requested evidence by hearing expert opinion, having regard to the limits set in the safety guidelines and the present state of scientific research; the more so, as the distance between the plaintiff’s house and the phone station exceeds the safety distance prescribed in the safety guidelines by far.” On 27 September 2001 the applicant raised a constitutional complaint, alleging a violation of his right to life and physical integrity as guaranteed by Article 2 § 2 of the Basic Law. On 28 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant’s complaint as being ill-founded. It noted that the relevant safety guidelines were based on the concurring recommendations issued by the International Commission on Radiological Protection (ICRP), the International Commission on Non-Ionizing Radiation Protection (ICNIRP) and the German Commission on Radiological Protection (Strahlenschutzkommission, SSK). They were based on verified health risks caused by the warming up of biological tissues. The Government had refused to adopt further security measures for lack of conclusive scientific evidence. The Federal Council (Bundesrat) had put the Government under an obligation to submit a report whenever new research results on the evaluation of possible long-term health risks caused by radio-frequency energy appeared. The Federal Constitutional Court found that the Government was not obliged to tighten the safety guidelines as long as there was no reliable knowledge as to the dangerousness of high frequency radiation. When fulfilling its obligations under Article 2 § 2 of the Basic Law, the Government disposed of a wide margin of appreciation, which allowed to consider the competing public and private interests. The positive obligation under the constitution did not stipulate that any possible security measure had to be taken. A violation of that obligation could only be established if the public authority did not provide for any security measures at all or if the measures taken were completely inadequate or completely insufficient to provide the required protection. There was no obligation to take precautions against merely hypothetical dangers. With regard to the lower courts’ alleged obligation to take evidence on the current standard of scientific knowledge on the dangerousness of high-frequency radiation, the Federal Constitutional Court found as follows: “In areas of complex situation of danger (komplexe Gefährdungslagen) such as the present one, where no conclusive scientific evidence exists, the Government in their function as a secondary lawmaker (Verordnungsgeber) enjoy an appropriate margin of appreciation. In such a situation of uncertainty the State’s positive obligations require the courts neither to verify inconclusive scientific findings by means of the procedural law, nor to control the Government’s decision by evaluating the relevant safety limits according to the latest state of research. It is primarily up to the Government to constantly observe and evaluate the scientific progress in order to take further security measures if this appears to be necessary. A violation of the Government’s duty to adjust the guidelines can only be established if it becomes clear that a regulation aimed at the protection of health which had once been in accordance with the law becomes unconstitutional because of new scientific findings or a change of the factual situation. The Court of Appeal respected this limited scope of judicial review by refusing to make an independent risk assessment on the basis of evidence taken in court as long as there existed no research results of considerable scientific value regarding the inadequacy of the present safety limits.” The Federal Constitutional Court further considered that this distribution of the burden of responsibility between the executive power and the courts duly took into account their different capacities to assess the relevant facts. With a view to the broad international research in this area, which had not yet rendered any definite results, it was currently impossible to evaluate the situation by merely examining solitary expert reports. An adequate evaluation was only possible by constant observation of all research results in the different scientific areas. This task was carried out by several international and national scientific commissions. The Constitutional Court found that the necessary overall examination could not be attained by taking evidence in individual court proceedings. The general scientific progress was not sufficiently advanced to enable the lower courts to independently evaluate such risks. The Constitutional Court finally found that the lower courts had not been obliged to hear expert opinion on the applicant’s allegations that his own health had been damaged by radiation. In the absence of a scientifically confirmed examination method, the applicant had failed to submit sufficient evidence that an examination of his state of health could render any new results. The establishment and operation of installations which may have harmful effects on the environment are regulated by the Federal Immission Control Act (Bundes-Immissionsschutzgesetz). The installation in the present case was not subject to licensing under this act. However, the Regional Authority, when deciding on the building licence, was under an obligation to examine whether the base station was compatible with the regulations of the Immission Control Act, the relevant provisions of which read as follows: Article 22 Obligations of Operators of Installations not Subject to Licensing “(1) Installations not subject to licensing shall be established and operated in such a way that 1. harmful effects on the environment which are avoidable according to the state of the art are prevented, 2. harmful effects on the environment which are unavoidable according to the state of the art are kept to a minimum, and 3. wastes produced during the operation of such installations can be duly disposed of.” Article 23 Requirements Concerning the Establishment, Nature and Operation of Installations not Subject to Licensing “(1) The Federal Government is authorised, after hearing the parties concerned, to provide by ordinance, with the consent of the Federal Council (Bundesrat), that the establishment, nature and operation of installations not subject to licensing satisfies specific requirements with a view to protecting the general public and the neighbourhood from harmful effects on the environment ... as well as taking precautions against such harmful effects on the environment, which means in particular that 1. ... 2. the emissions released from such installations shall not exceed specified limits” On 16 December 1996 the Federal Government iussed an ordinance under Article 23 § 1 of the Immissions Control Act (26. Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes). In its first appendix, the Government set specified limits which must not be exceeded by high-frequency installations. The proceedings before the Administrative Courts are governed by the Code of Administrative Procedure (Verwaltunsgerichtsordnung), Article 86 § 1 of which reads as follows: Article 86 “(1) The Court examines the facts of the case ex officio. It is not bound by the parties’ submissions or by their requests to take evidence.”