Anti-5G action goes wrong because it’s not addressed to the right jurisdiction

The Paris Court of Appeal dismissed a collective legal action against 5G. This one did not aim for the right jurisdiction.

This is a serious legal disappointment, but also bad news for anti-5G initiatives. In a judgment handed down on January 5, 2022, the Paris Court of Appeal put an end to a class action suit which sought to impose, via the courts, an expertise on the arrival of the new generation of mobile telephony, which has been deployed since the end of 2020 in France via Orange, SFR, Free Mobile and Bouygues Telecom.

In that case, posted on Twitter by Alexandre Archambault, an expert lawyer in networks, there are 500 individuals grouped around lawyers specializing in this type of collective action (in addition to 5G, the cases brought concern the connected meter Linky, the drug Levothyrox, dieselgate, l (chlordecone-based insecticide, treatments associated with coronavirus and vaccines against Covid-19) which were rejected.

A page encouraging a class action lawsuit against 5G. // Source: Screenshot

The Paris Court of Appeal, in its verdict, fully validated the judgment that was previously rendered by the Paris judicial court on March 16, 2021. The latter had notably declared itself incompetent on this file, a little less one year after the start of hostilities – the referral to the tribunal took place on May 26, 2020, a few months before the start of the effective deployment of 5G: the first networks were indeed switched on from November and December 2020.

Concerns about health, the environment and personal data

At the basis of this class action was the conviction that the arrival of ultra-broadband mobile in France is taking place without a clear and protective framework ” to prevent damage to human health and the environment and to ensure the security of personal data “. These reproaches flourished in 2020, before the arrival of 5G, which ended up giving rise to moratoria in certain cities (such as Lille), forums and actions in Parliament.

Since then, some concerns have been dispelled (including about insects and animals, which rumors said exposed to 5G) and additional reports and studies have been produced, in particular on exposure to waves. . It appears that 5G smartphones do not emit more than 4G smartphones, that their intensity remains very low overall and that no new risk has been observed for 5G.

5G health
Health concerns about 5G are not based on any definitive scientific consensus today. // Source: Melvyn Dadure for Numerama

But the lawsuit continued. On appeal, the request to verify if all the precautions were taken arrived in the hands of the magistrates, but it did not have a better fate. The appeal was rejected and the way it was sounded like a reminder of the distribution of prerogatives between what comes under the judicial order – to which the Paris Court of Appeal belongs – and what reveals the missions of administrative order.

As noted by Me Archambault, the judgment notes that “ questions relating to the protection of the privacy of users and subscribers fall under the special police of electronic communications instituted by the Post and Electronic Communications Code and entrusted to the State by the legislator “. In short, these subjects are governed by specific provisions and, in this case, come under the exclusive competence of the administrative judge.

An exclusive competence of the … administrative judge

This reality stems from a series of decisions handed down by the Tribunal des Conflits, a special body composed on an equal basis by members of the Court of Cassation (the highest body of the judiciary) and the Council of State (its counterpart on the administrative side). This essentially involves resolving conflicts of jurisdiction between judicial and administrative jurisdictions to avoid the risk of heterogeneous verdicts.

These decisions are old: Eurojuris wrote in 2012 that six rulings of this special tribunal came ” put a stop to the competence of the judicial judge “. What relates in particular to public health has since been the exclusive competence of the administrative judge. Clear, ” the judicial judge cannot replace the assessment of the administration », The latter having special police powers over the relay antennas.

The judicial judge certainly remains competent in certain circumstances, such as abnormal neighborhood disturbances, but which are not here in relation to collective action. To put it another way, it’s been almost a decade since the distribution of prerogatives was decided and it was undoubtedly illusory to hope for anything other than judicial tribunals declaring themselves incompetent, because these are not the right jurisdictions.

Board of state
The Council of State, top of the administrative order. // Source: Naval S

The judgment of the Court of Appeal further observes that the questions raised in the appeal have “ or have already been the subject of an examination by the competent administrative authority when choosing the operators “. In this case, it is the Regulatory Authority for Electronic Communications, Posts and Press Distribution (Arcep), which is responsible for this control. The procedure followed its course and the operators’ files were validated.

Actions before the Council of State had already been rejected in November 2020, shortly before the start of the effective deployment of 5G – they were then in the field of administrative law. This rejection, although it was a summary (that is to say an urgent verdict, without substantive examination), already suggested that in the administrative field, the anti-5G action risked to lead nowhere for lack of scientific evidence substantiated enough to justify an immediate stop.

The decision of the Paris Court of Appeal also intends to avoid an abnormal situation where one would see administrative decisions being defeated by decisions of the judicial order. Above all, this scenario would risk the success of contentious strategies consisting of moving from one jurisdiction to another, because such and such did not deliver the expected judgment. This is what the Paris Court of Appeal concludes, pointing to an interference that would be harmful:

The expertise requested [à travers l’ordre judiciaire] would, moreover, be liable to deprive of effect the authorizations that this same administrative authority has issued, and would therefore constitute an interference in the exercise of the special police assigned to the public authorities », We read. While this decision will probably not shut down all actions around 5G, perhaps it will at least have the effect of directing them in the future to the right jurisdiction. May be.

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