Case 2009-002

Three telecommunications companies sought to annul an ordinance passed by the Brussels Capital Region concerning the protection of the environment against the harmful effects of non-ionizing radiation. The provisions sought to restrict the levels of non-ionizing radiation produced in the environment, particularly from telecommunications equipment. The applicants alleged that the provisions adopted by the Brussels Capital Region infringed on the jurisdiction of the federal state, particularly regarding health matters, and were therefore constitutionally invalid.

The Court dismissed all of the applicants’ pleas, upholding the provisions passed by the Brussels Capital Region.

The first plea alleged that the provisions protecting people from non-ionizing radiation concerned public health rather than environmental protection, and were therefore a matter of federal jurisdiction. Broadly speaking, regions were permitted to legislate on matters of underground pollution, water and air pollution, and aggressions against the environment. The Court held that regional jurisdictional competence included limiting risks linked to non-ionizing radiation, because the presence of radiation was an element of the environment. That these measures overlapped with public health concerns did not preclude regional jurisdiction. This plea was therefore dismissed.

The second plea argued that the provisions made it practically impossible for the federal government to exercise their constitutionally recognized control over the telecommunications industry. The provisions imposed an obligation on telecommunication companies to reduce their emissions on non-ionizing radiation, but the Court held this did not unduly interfere with federal jurisdiction. Federal jurisdiction over telecommunication companies concerned infrastructure, not installation or utilization of equipment. Federal competence did not include the fixing of radiation emission norms. This plea was therefore dismissed.

The third plea argued that the provisions impacted regions outside the territorial boundaries of the Brussels Capital Region and was therefore invalid. The provisions targeted equipment installed not just in the Brussels Capital Region, but equipment outside of the region that emitted non-ionizing radiation into the region. The Court held that the provisions concerned the environment of the Brussels Capital Region, and it would render regional competence over environmental matters ineffective if the Brussels Capital Region did not have some authority over installations outside their boundaries that nevertheless affected its environment. This plea was therefore dismissed.

The fourth plea argued that the provision unfairly targeted certain types of radiation, having a disproportionate impact on telecommunication companies. The Court ruled it was justified for the provisions not to target non-ionizing radiation issued by equipment such as personal Wi-Fi modems because this would constitute regulating products sold in the private sphere, an area of federal jurisdiction. In addition, devices that emitted radiation producing only thermal effects, such as televisions, were not targeted because they did not have the same potentially harmful effects as telecommunications equipment. This plea was therefore dismissed.

The fifth plea argued that the proposed penalties for violating the provision were unfair because it was indeterminable how to properly comply with the provision. The Court held that the obligations under the procedure to limit the levels of non-ionizing radiation were clear and precise, with discretionary powers left to judges in determining exact penalties. This plea was therefore dismissed.

The sixth plea argued that the provisions infringed on the freedom of commerce and industry, by not allowing telecommunication companies to operate in the manner of their choosing. The Court held that freedom of commerce and industry was not an absolute freedom. Laws were permitted to limit the liberty of people engaged in different enterprises, so long as the limit was not wholly disproportionate to its intended goal. The applicants were unable to demonstrate that the limitation created by the provision made it technically or economically impossible for them to operate their businesses. This plea was therefore dismissed.

The seventh plea argued that in the passing of the legislation, the legislature violated principles of equality and non-discrimination. The Court held it did not have the authority to judge the formalities in the adoption of a legislative norm, and this plea was therefore dismissed.

“Cette compétence implique celle de prendre des mesures en vue de prévenir et de limiter les risques liés aux radiations non ionisantes, en ce compris la limitation de l’exposition de l’homme au risque de ces radiations qui se répandent dans l’environnement. La circonstance que ces mesures contribuent à la protection de la santé publique ne fait pas obstacle à la compétence régionale. En effet, la politique environnementale vise à protéger les divers éléments de l’environnement de l’homme, en premier lieu afin de préserver ainsi sa santé.” – (B.4.2)

“This competence involves taking measures to prevent and limit the risks associated with non-ionizing radiation, including the limitation of human exposure to this radiation entering into the environment. The fact that those measures contribute to the protection of public health does not preclude the regional competence. In fact, environmental policy aims to protect the various elements of the human environment, with the primary goal of protecting human health.” – (B.4.2)

“[L]e législateur bruxellois a entendu prendre en compte les effets autres que thermiques des radiations non ionisantes. En l’occurrence, les appareils visés dans l’exception qui émettent des radiations non pulsées ne produisent que des effets thermiques. Le législateur bruxellois a donc pu raisonnablement décider que seuls les équipements émettant des radiations pulsées devaient être pris en considération.” – (B.17.1)

“The Brussels legislature intended to take into account of effects other than the thermal effects of non-ionizing radiation. In this case, the devices referred to in the exception that emit non-pulsed radiation only produce thermal effects. The Brussels legislature reasonably decided that only equipment that emits pulsed radiation should be considered.” – (B.17.1)

“La liberté de commerce et d'industrie ne peut être conçue comme une liberté absolue. Dans de très nombreux cas, une loi, un décret ou une ordonnance - que ce soit dans le secteur économique ou dans d'autres secteurs - limitera la liberté d'action des personnes ou des entreprises concernées et aura ainsi nécessairement une incidence sur la liberté de commerce et d'industrie. Les régions ne violeraient la liberté de commerce et d'industrie… si elles limitaient cette liberté sans qu'existe une quelconque nécessité pour ce faire ou si cette limitation était totalement disproportionnée avec le but poursuivi...”  – (B.22.1)

“The freedom of commerce and industry is not conceived as an absolute freedom. In a number of cases, a law, a decree or an ordinance – in the economic sector or in other sectors – will limit the freedom of action of people or relevant businesses and will necessarily impact the freedom of commerce and industry. The regions will only have violated the freedom of commerce and industry… if they restricted this freedom without there being any need to do this or if this limitation was completely disproportionate to the aim pursued…” – (B.22.1)