In the first case, the mayor of the commune of Saint-Denis decided, on September 14, 2006, to prohibit temporarily, on the territory of this municipality, the installation of mobile phone antennas within 100 meters of nurseries, schools and seniors’ residences, until the establishment of a charter between the operators of electronic communications networks and the community of communes of the Plaine Commune. This decision was based upon the principle of precaution.

 

Orange France, SFR and Bouygues Telecom decided to challenge the mayor’s decision. The decision was therefore annulled by a decision of the Tribunal administratif of Cergy-Pontoise, on May 31st, 2007, confirmed on January 15, 2009 by a decision of the Versailles’ Cour administrative d’appel. The municipality of Saint-Denis has therefore decided to lodge an appeal in cassation against this latter decision.

 

In the second case, the mayor of the town of Pennes-Mirabeau has banned the installation of mobile phone masts in the territory of this municipality within 300 meters from homes and public buildings and further decided that the installation of antennas be subject to a prior request to the municipality and a favorable opinion of it.

 

At the request of Bouygues Telecom, the Tribunal administratif of Marseille annulled the decision. This decision was later upheld by the Marseille’s Cour administrative d’appel by a decision on May 18, 2009. The town of Pennes-Mirabeau therefore also decided to lodge an appeal against that decision.

 

In the third case, the mayor of Bordeaux, by order dated February 12, 2010, decided to limit the implantations of mobile phone masts in the territory of this municipality. This order further provided that the municipality be subject to any proposed installation of mobile phone antenna to a preliminary procedure and that city services be allowed to carry out verifications.

 

SFR challenged the decision of the Tribunal administratif of Bordeaux which had considered in particular that "no means raised by SFR was such as to create serious doubt about the legality of these acts".

 

In each of its decisions, the Conseil d’Etat considered on the one hand that the law organized a special electronic communications police, entrusted to the State, in order to ensure a uniform high level of public health protection against the effects of electromagnetic fields emitted by electronic communications networks across the country.

 

In a second step, the Conseil d’Etat reminds that the law has designated specific authorities, namely the Minister responsible for electronic communications, ARCEP and ANFR to determine fully the modalities of implementation for radio stations throughout the country and measures to protect the public against the effects of wave emission.

 

As such, if the mayor can be informed upon its request of the situation of radio installations used in the territory of its commune and if articles L. 2212-1 and L.2212-2 of the Code général des collectivités territoriales provide him the means "to take any police measures necessary to protect good order, safety, security and public safety", he can not, without undermining the authority granted by authorities of the State, "adopt on the territory of its municipality, regulations on the implementation of mobile phone masts in order to protect the public against the effects of waves emitted by the antennas".

 

In addition, the Conseil d’Etat held that "the precautionary principle, if applicable to any public authority in its areas of competence, can not have neither the purpose, nor the effect of allowing a public authority to exceed its jurisdiction and therefore to interfere outside their areas of responsibilities".

 

Finally, the Conseil d’Etat considered that these decisions do not misjudge, "neither the legality of national regulations, nor municipality’s police decisions that the mayors could enact, especially in an emergency, about specific antennas’ installation under exceptional local circumstances".

 

The Conseil d’Etat has formally noted that the mayor had no authority to enact local regulations on "the implementation of mobile phone masts and therefore recognizes exclusive jurisdiction to the state authorities to regulate the installation of antennas in the territory".

 

The three decisions of the Conseil d’Etat appear to go further its former case law by excluding the intervention of local entities concerning the prohibition of antennas. These cases are therefore more favorable to mobile operators’ roll out.