Text of Ruling No 1430 of 05.05.2004 issued by the Court of Modena, published on 06.09.2004, which confirms the devaluation of properties near sources of electromagnetic fields. In this case, electricity transmission lines.
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
COURT OF MODENA
SECTION
The investigating judge dr. Joseph Pagliani, in a single Judge,
gives the following Judgement
the civil suit No 303/2000 RG
promoted by Lorenza
Zini Zini Giorgio
Olga Sandwiches
- Actors -
represented and defended by the lawyer. A. Board of the Court of Modena v
Enel Distribuzione Spa
- Defendant -
represented and defended by Mr. G. De Vergottini, C. Luigi Carbone
Caturani and the Court of Bologna;
in point: entries.
At the hearing on 12.2.2004 the case was assigned to the decision, ending up to 04.10.2004 for
the filing of written submissions and up to 04.30.2004 for filing
replica, on the conclusions set out by the parties as follows:
for plaintiff:
- principally, and declare that the power cables Electric
above the residence of Mr and Mrs Zini
generate an electromagnetic field exceeding the normal tolerance in relation to the nature of places, people
and / or property therein dwelling, and therefore order the company ENEL SpA
, Sig representative pro tempore, to cease such
entries, providing that conduct electricity that overlooks the city of
actors, is transferred elsewhere at the cost and by the defendant;
therefore have to be borne by the defendant and at his own expense
the adoption of technical measures as may be appropriate in this case
to avoid exposure to the electromagnetic field of the actors and their
family, there is a intolerability
values \u200b\u200bgenerated by said power line;
- in any case: it also condemns the defendant company, in the person of
legal representative pro tempore, to compensation for all damage to property and assets including
economic depreciation of neighboring property
actors to the extent be quantified in a separate trial;
- alternatively: in the unlikely event,
in which these electromagnetic waves are considered within the normal tolerance, or at least tolerable,
in relation to the needs of production and always in compliance
the primary and absolute right to health, say estate and order
ENEL SpA, in the person the legal representative pro tempore, to liquidate the actors
fair compensation for the consequent depreciation suffered by the property
Zini, and / or the increase of power line easements
be quantified in a separate trial.
- With victory in costs and fees.;
for defendant:
"contends that dismissing the plaintiffs in the alternative
for the termination of purpose following the new regulatory framework in place as shown
hearing on 30.9.2003.
OF THE PROCESS
I. By a summons dated 28.12.1999, notified the 30.12. 1999, Lorenza
Zini, George Zini, Olga Sandwiches sued the company Enel SpA, in
legal representative pro tempore to hear
order the company Enel SpA, in its legal representative pro tempore, to cease entries
electromagnetic intolerable, providing that conduct electricity
dominates the home of the actors would be moved elsewhere at the cost and care
entity defendant, and feel order the defendant to the same entity
compensation for all damage to property and assets, including depreciation
economic actors of the neighboring property, or, in
alternative, order the hearing ENEL SPA, to pay the actors a fair compensation for
resulting in the depreciation suffered by the property and
the burden of power line easements.
II. Ritually deposited with the appearance, on 15.03.2000 it was in
proceedings against ENEL SPA, which called for the rejection of claims directed
actors.
On 13.10.2001 was introduced by the actors, in the course of proceedings
urgent procedure pursuant to art. 700 cpc because of the protracted
physical complaints by the actress complained Zini Lorenza, who had further aggravated
resulting in termination of pregnancy.
The company ENEL SPA constituent with a defense with which
asked to dismiss the appeal as unfounded in fact and in law, not in this case using
requirements of art. 700 cp
Upon completion of the appearance of the parties, by order dated 24.01.2002
the investigating judge dismissed the appeal on the basis of the precautionary
considerations contained in the measure that is shown below in full.
<<(omissis)
that:
as relating to protection of health, there is no apparent justification, partly as a result of the enforcement procedure
necessarily summary of this knowledge
supervision, the claim by asserting their rights in subsequent proceedings, as in
:
- no evidence has been provided in order breach of rules and preventive
techniques in the construction of facilities, such as to cause danger of
imprevedibililmente emissions other than those for which measurements were made
;
- the damage is feared, therefore, can reasonably be found only on the harmfulness
in and of itself, and regardless of their size, the magnetic fields produced
dall'elettrodotto in operation in the area next to the ski;
- assessment of the harm to the health of residents in the vicinity of the plant
requires an appreciation of the possibility of injury
the right to health of those in view of the harm
near constant magnetic fields produced by electrical,
well known to the legislature, national and international jurisprudence, but this is not an automatic consequence of
simple situation of spatial contiguity
with any magnetic field, dovendosene evaluate the characteristics, and to this end
are fixed known regulatory limits;
- in this case are respected the limits of the law of
sector (DPCM 04.23.1992, 100 microtesla), as is clear from the report
Harp of 1998 that the measurements made by the consultant part
applicant, conversely limits are exceeded, greatly lower ,
set by the regional legislation on
expected values \u200b\u200bfor the construction of new electrical installations in places intended to stay long
people (Law No 30/2000 of Emilia Romagna and deliberation of the Regional
20/02/2001, n . 197: microtesla 0.2), which identifies
note of caution as the value to 0.5 microtesla and aims to achieve quality
microtesla to 0.2;
- è vero che i limiti imposti dalla normativa statale di settore non possono
essere ritenuti esaustivi della tutela della salute e non è precluso
l'intervento giudiziario ove l'effetto nocivo per la salute risulti provato
anche per valori diversi da quelli normativamente previsti;
- tuttavia, in assenza di superamento dei limiti normativi, la dedotta nocività
deve essere oggetto di effettivo accertamento, dovendo il giudizio di
pericolosità dell'esposizione essere fondato, quanto meno, su una situazione di
probabilità od apprezzabile possibilità sul piano causale, se non altro per la
necessità di determinare il grado di normale tollerabilità and threshold
placing intolerable electromagnetic
- on the other hand, even criminal, in the absence of firm evidence about
the actual harm, we exclude the configuration of the offense under Article.
674 cp;
- in the case, then have a substantial discrepancy between the limits imposed by two different
regulations (regardless of their different position in terms of
sources of law), of different ages and with different subject and scope,
assumes particular importance the establishment of specific harmful exposure
given that the absolute level of caution, namely that to exclude any significant effect on the body
and therefore human health, the concept is different from
level not harmful for the organism itself, as demonstrated by the same
significant difference in threshold between the two standards, so that, for purposes of determining the normal
tolerability in the wording
regulatory inquiry can not disregard credible causation
than feared event, in relation to the two values \u200b\u200bare so different;
- in this case, are not exceeded government regulations, and the absence
effective investigation of the danger in this case, the state must be considered
None (except always the possibility of rigorous testing
otherwise) the harm feared for the safety of
reasonable location and operation of the plant (which, not being
of new construction, do not fall within the regional regulations);
- therefore, although not at all impossible that a
different conclusion might arrive in the process of merit, the outcome of discussions by
remedies proper in describing a place, the procedure introduced for the urgent
Article. CPC 700 is not, therefore, admissible because, regardless
the satisfaction of other conditions (such as a
imminent and irreparable injury), there is the requirement for the appreciation of the merits of
claim to judicial protection, which is required (so-called "prima facie case), and
the application can not therefore be accepted for lack of a prerequisite
; (omitted).
Therefore, the site supervision during the proceedings has been denied protection for
the absence of evidence about the harmfulness of the actual entries, try to
the acquisition of which was necessary to make the long and complex investigation which has been
carried out during the proceedings.
against that order was brought on 15/02/2002 complaint under Article
. 669 l of the CPC, then rejected by the Board on 27/02/2002
for lack of evidence regarding the requirement of a prima facie case.
III. The case was educated through the acquisition of documentation and processing of
produced expert witness.
At the hearing on 12.2.2004 were, therefore, the conclusions set out above
transcribed, with the terms set out in the epigraph for the filing of written submissions and statements of defense
.
GROUNDS
1. In brief, plaintiff complains that dall'elettrodotto
positioned above the entries are from harmful electromagnetic your home; has
therefore requested the issuance of the necessary measures for the cessation of
entries themselves or at least reducing them by
the limits of tolerance, has also demanded compensation for damage suffered pecuniary and non
capital, to be settled in separate proceedings, and has therefore called
the rules laid down in Articles. 844 and 2043 et seq. Cc.
2. The Court has addressed the merits long been the subject of entries
harmful to health and there have been several rulings and pretorili
Court which granted, for example, the inhibitory inputs within the meaning of Article
. 700 CPC, protecting the health rights of the owners or holders of a
right to use funds that are adjacent to a source of emissions to
Article. CPC 844 (cf. Pret. Monza 15/6/76; Pret. Vigevano
6/4/78 and 22/3/85; Pret. 13/10/84 Thiene, Pret. Verona 29/6/84, Pret. Castrovillari
02/16/1991; Pret. Milan, 18.02.1993, in: Arch leases 1994, 391).
Even in those decisions was the recognition of this unilateral action
injunction to protect the right to health, understood as a law based on Article
personality. 32 of the Constitution and, therefore, the remedies of the
injunction as a remedy prior to the general protection of all rights
absolute. The Supreme Court has come to recognize the long
right to health as a right of protection by an immediate initiative of the individual concerned and
(see Cass. 9/3/79, No 1463; 6/10/79, No 5172;
30/7/84 No 4523, 11/2/85, No 1130) before the Constitutional Court with the sentence no
184, 14/7/86 trace the main outlines of classification
constitutional matter, and then the address is no longer
been abandoned. The law was particularly developed in relation to releases
sound, for which we have reached some time ago some
results more or less universally recognized and used by law
living. Unlike
was the path of judicial protection of entries
electromagnetic field to the scientific uncertainties of the present.
3. However, the Court has reached some joint acquisitions
entire field of protection from harmful emissions. In particular, it was noted that
good health must be considered for the safety
including not only physical but also mental well-being of the individual and of all that is to be
the "quality" of life itself, understood as a great achievement
of the human person in all of its manifestations and global
and its values.
addition, the development of scientific knowledge enables the continuous update
scope of operational art. 844 cc, which, therefore, should not be based solely on today
the entries immediately noticeable on a plane
"taste", with the five senses of human beings, but also includes those entries
that, although not perceived as above, but
scientifically known and measurable by an instrument, shall be eligible anyway, even
only in view (as long as real, and not only putative), in terms of simple
risk and not be weak point, to have a detrimental way on the human
(see, eg., Trib Como, 30/11 / 01, in: Jur. Wed '02, 1270). For example,
could not deny the potential of an exposure to harmful emissions
of radioactive elements, even if only perceived as a
instrumental, since this phenomenon now become, to some extent within
of common stock of knowledge, and for other categories of entries required,
course, a scientific use. In legal terms, however, the above
translates into significant inputs of electromagnetic waves that fall within the scope of applicability of Article
. 844 cc, as the concept of "similar
propagation" can not be restricted only to entries
immediately noticeable by humans with the five senses.
4. Entries intolerable wave (whether of sound or otherwise)
bring attention to the phenomenon procedur not for organic lesions
which can, in theory, result in the human body immediately, but
because of the ability of certain inputs affect the balance of
person, understood as such in its entirety and complexity of
dynamics of a biological organism, ie as a subject tended to
realize, as ordinarily, his mental functions, and to carry out the activities
satisfying performance of his subjective qualities and social protection also are preparing to
to the injury of goods such as personal serenity
individual, ie the alteration of the psycho-physical
the normal rhythms of life that reflect on peace of mind the subject
damaged.
Entries intolerable waves also pose the problem of long-term effects
(or latency) for the human body, and bring to the fore the importance of
distinction between "physical integrity of the individual" and a notion
larger good "health," including psychological well-being, quality of life
, even relationships, and values \u200b\u200bof people, goods whose lesion can integrate
unlawful damage, and his health, even in the absence of injury
immediately objectivity.
As noted above, here is relevant to a concept of biological damage that is independent of the actual existence
impairments of organic
psychophysical integrity of the human person and respect, however, the impairment of health
side in the above sense, in brief, including all
psychophysical potential of normal operation, ie, the quality
of the subject, so that the intolerable
entries that have an effect on the human body established in accordance with the above, can only be considered a case
production of damage to health.
5. It is therefore necessary to check the recurrence in this case
requirements necessary for acceptance of application.
As to the danger of damage to health it must first examine the
concept of "normal tolerance" of the entry.
The Court of Cassation on some occasions (see eg. Cass. II, 6/1/78, 38)
said that the assessment should be made according to the normal tolerance
objective indices.
If then, as in this case, the amount of entries
silent throughout the day, the assessment will be conducted with reference to the effects
total exposure, depending on length of the same, in reference
detrimental to the potential of maximum intensity, as
short-lived.
circumstances, must, therefore, establish whether
can be stated that the placing in question is intolerable, for this purpose must be identified
a limit beyond which the release takes on the connotation.
6. In doing so, go in the first place, reiterated the policy of interpretation and opinion
well established in law (see in particular the criminal law
theme of pollution, especially water, and the theme of the calendar entries
noise) according to
standards in the enactment of legislation (in this case, cf. DPCM 04.23.2002, 100 microtesla and DPCM
07.08.2003, 10 microtesla as threshold of concern) sets a limit of
"acceptability" of 'input which should undoubtedly be taken into account in assessing the reality of
tolerability of entries to the effects
art. 844 cc, but for the act itself, if so, can not preclude a
specific assessment of intolerance, is also expected that the integrity of
person and the primary good health can not be measured solely in terms of physical and
findings in a manner materially different
universal. In addition, a primary law of personality can not
however, be negatively affected by a provision of secondary legislation, regulatory
order, also in this case, the legislation seeks
purposes of a public nature and is active in relations between private individuals and public administration
, being intended to fix attention and quality objectives, measurement techniques and detection of electromagnetic
and parameters for prediction
buffer zones for power (see art. 4, 2 ° C., Lett. A)
L. No. 36/01), and therefore the provisions contained therein or exclude the applicability of Article
. 844 Cc in relations between private owners of funds
neighbors, nor restrict the scope of Articles. 2043 et seq. Cc.
In particular, it is believed that the limits set by DPCMDPCM can not
08/07/2003 change the legal framework of Articles. 844 cc and 2043 cc
directly related art. 32 of the Constitution, so the
exceeded the threshold of intolerance is to be verified in practice by the
court, in relation to a particular effect procedur. Therefore, not even any
determine cessation of purpose,
as argued by the defendant.
The approach adopted, however, is, as already mentioned, according to a
consolidated guidance on water pollution, for which he was
at the time made it clear that compliance with the limits referred to in journalistic standards
water protection can not exclude, per se, the
appraisal of the intolerable and unlawful entries of pollutants (Cass.
ON 18/7/86, No. 4633, for the matter of the tolerability of entries
noisy relations between private individuals, see, eg. , Cass. III, 03/02/1999, No. 915 and
Cass. II, 07/18/2001, No. 5697).
7. Given the above, the Court of merit and legitimacy
have not yet identified a final goal is a limit beyond which
believe in excess of the normal tolerance electromagnetic entries, on a previous
particularly relevant to this case is, however,
that the Court of Como, cited by the parties, that inputs of
electromagnetic waves produced by a power line can not be tolerated under Article
. 844 cc when passing the parameter from 0.3 to 0.4 microtesla
magnetic field (Court of Como, 30 November 2001 and January 22, 2002, in: Riv. Egal.
Environment 2002, 576 in: Jur. About 2002 , 1270), so the detection of
electromagnetic fields from power lines originated higher intensities than
indicated (namely, 0.3 microtesla) justifies the intervention of the court under Article
. 844 cc, which seeks to order the measures
technically suitable for a reconciliation of the risk to normal levels. This decision complements
certainly a useful point of comparison and reference.
The question, however, was the subject of special study by
technical advisers appointed to the investigating judge who put
developed a solid scientific basis, large logical rigor and objectivity, and
of great technical depth, with overall results provide a scientific aid
deserves full support and expectations, not passed by
technical counter-part. Significant, as we shall see, is the
conclusion that is reached as to the danger threshold in microtesla
substantially homogeneous than indicated in previous Court of Como
above.
advisers had been placed the following question:
made the remarks as they deem necessary and appropriate, after all the investigations necessary
also run at public office visit
if necessary, and taking any other investigations deemed useful,
taking into account the existing legal standards:
1. if, given the distance between the power line in question and housing
of actors, the level of exposure to electromagnetic fields generated by the passage of energy
is capable of creating damage to the health of themselves,
specifying, where possible, in To what extent and in relation to such
consequences
2. where appropriate, explaining and describing the differences of danger to health in relation to age
people, distinguishing between adults and children,
in particular, the prenatal stage;
3. whether this level of exposure to electromagnetic field has had,
into account the duration and intensity of exposure,
causal efficacy in relation to the abortive episodes relating to the person of the actress
Lorenza Zini;
4. in the event of a finding of danger to health, what are the precautions and measures
eliminating, beyond a reasonable doubt
in light of current knowledge, the risks to health with respect
type of facility in question.>>
8. The consultancy consists, first, a broad introduction that, while
constitute a summary of current scientific knowledge on
in the international field, is in broad examination of the literature
specialist, given that the number of papers published on '
argument is "well in excess of one thousand." The advice, first, from Dover and
consciously formal note of the current state of knowledge,
arguable conclusions in this regard in the scientific,
stated:
significant alterations of health status) following chronic exposure to low levels of
field (ie those which in normal situations is
exposed the general population and also, in its great majority, the working population
; Hump et al, 2000, 2000b), although the current prevailing
orientation is in favor of greater caution, as they are gradually taking
consistency of the information on some possible effects
>>. So, continuing with absolutely acceptable method, to:
<<...riportare le conclusioni di recenti rassegne della letteratura scientifica
conducted by authoritative expert groups such as the Standing Committee on Epidemiology
ICNIRP (ICNIRP, 2001) or the Advisory Group on Non-ionising Radiation
the British National Radiological Protection Board, led by Richard Doll
(NRPB, 2001a), and several epidemiological studies published
after the drafting of these texts are also listed in the official positions recently
taken by some prestigious institutions,
which the World Health Organization (WHO ).>>.
first consulting examine the carcinogenic effects in adults and children, confirming
In summary, the classification (IARC)
exposure to ELF magnetic fields as "possibly carcinogenic", with its known effects,
in particular, of the population child as
about a specific form of cancer or childhood leukemia.
According to the advice of epidemiological data also suggest that
that risk is not generally inherent in the environmental exposure,
independently of the field, but is essentially limited to
child population with higher exposures to 0.3-0.4 mT (corresponding to
a relatively small share of the general population, less than 1%).
Moreover, according to epidemiological data, it is also possible to estimate the extent
estimated risk of developing childhood leukemia associated with exposure to
levels above 0.4 mT magnetic field: the
relative risk associated with that exposure of 2 (confidence interval 1:24 to 3:13),
therefore one can conclude that a child who lives in an environment likely to induce
weighted field levels above 0.4 mT has double the risk of leukemia
child than a child living in an environment characterized by a lower
exposure (ie the vast majority of people in our country
).
Then, examine the effects of counseling on pregnancy, particularly
the relationship between exposure to magnetic fields during pregnancy and miscarriage
, noting that some scientific work
value of a relationship with the average field.>>, and therefore, although not yet possible to formulate a real opinion
in terms of causal connection between exposure to ELF magnetic fields
and abortion, but the data certainly reinforce
the hypothesis of a possible relationship, and justify the need for adequate
attention to this problem.
On this point it should be noted that when the advice says that you can still
express an opinion in terms of causation,
not mean that it affirmed its full scientific certainty of causation, the effect
indisputably proved, the second a succession factual invariable.
In terms of legal causation, however, as we know, the concept which do
reference is not causality, but causality scientific logic, which takes into account the possibility
, and an appreciable degree of possibility, and the
other elements of conviction.
Subsequently, the advisory examines the neurobehavioral effects, the
neurodegenerative diseases and psychiatric disorders. This part of the elaborate
is particularly interesting for the above mentioned points
3. and 4., as there are reports that
>> in several studies, that is, in other words, that ELF fields may be perceived
man outside of a sensory experience
classic, and that, whilst there is no definitive conclusions about these effects
, the set of phenomena subject of investigation is, in itself,
significant, ranging from depressive symptoms to headache, alterations
neurobehavioral and psychiatric problems of memory, of an effect on neurodegenerative diseases
some (mainly
Amyotrophic Lateral Sclerosis and Alzheimer's disease ) to the increased frequency of suicides.
are then provided with a table of significant complaints of the people who report
"hypersensitivity electromagnetic fields (and which mainly concern the
nervous and cardiovascular system and skin), which is reported here
.
TABLE 1 (from Hump 2002)
DESCRIPTION OF THE MAIN FEATURES OF
"HYPERSENSITIVITY 'TO FIELDS ELECTROMAGNETIC "
* CASES HAVE BEEN REPORTED IN MANY EUROPEAN COUNTRIES, INCLUDING ITALY,
IN THE UNITED STATES AND IN SOME ASIAN COUNTRIES;
* THE SYMPTOMS ARE RELATED TO NEAR POWER LINES WITH SEVERAL
ELECTRICAL APPLIANCES, APPARATUS FOR BROADCASTING AND SO FORTH.
* DOES NOT APPEAR TO HAVE SPECIAL predilection ETA '' MORE '
INTERESTED PERSONS ARE OFTEN WOMEN WITH MEDIUM-HIGH LEVEL OF EDUCATION AND
WITH A GOOD ATTENTION TO YOUR HEALTH;
* The symptoms reported PIU 'FREQUENTLY ARE:
1. FAILED TOO INTENSE, APATHY, difficulties in the formulation of thought
2. Sleep disorders or in the sleep-wake cycle;
3. Muscle weakness, ESPECIALLY LEG
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