Question 35876 — telecommunications

Summary

The installation of mobile radio relay antennas is governed by the combination of provisions relating in particular to the postal and electronic communications code, the town planning code and the general code of local authorities. Under the terms of articles L. 45-9 et seq. of the postal and electronic communications code, the concessionary authorities or managers of the public domain may authorize operators of electronic communications networks or infrastructures to occupy this field. As such, the mayor is competent to conclude a temporary occupation agreement for the public domain with an electronic communications operator with a view to authorizing the installation of a relay antenna on an outbuilding in his public domain (CAA of Nantes, October 8, 2018, no. 17NT01212). Furthermore, in accordance with the provisions of Article R. 421-9 of the town planning code, the installation of a mobile radio relay antenna and their attachment systems fall within the scope of new constructions subject to prior declaration to the mayor of the municipality. The mayor instructs the preliminary declaration of works by assessing the visual impact of the relay antenna on the sites, natural landscapes and historical monuments. Generally speaking, the Relay antenna installation projects must comply with a certain number of requirements relating to the town planning code, the environment code and the postal and electronic telecommunications code in particular. However, the Council of State considers that the mayor cannot refuse a prior declaration to a request to install mobile telephone antennas near certain buildings without having scientific elements revealing risks (CE, January 30, 2012, Société Orange France, no. 344992). Furthermore, the mayor cannot, either under his general police powers, nor on the basis of the precautionary principle, adopt regulations relating to the installation of mobile telephone relay antennas and intended to protect the public against the effects of the waves emitted by these antennas (CE., Ass., October 26, 2011, commune of Saint Denis, n° 326492). Indeed, health regulations remain established by the special electronic communications police entrusted exclusively to the State. The Council of State notably specified in the context of the aforementioned assembly judgment that "the legislator has entrusted to the only authorities he has designated, that is to say the minister responsible for electronic communications, to the Regulatory Authority of electronic communications, posts and press distribution (ARCEP) and the National Frequency Agency (ANFR), the task of determining, in a complete manner, the methods of establishing radio stations throughout the territory as well as the measures to protect the public against the effects of the waves they emit. If the mayor is not deprived of powers regarding the choice of locations, his However, these powers must take into account the exclusive powers of the State, the contours of which have been clarified by administrative jurisprudence. It is also important to take into account the need for coverage of the national territory in order to improve network availability and quality of service, and to eliminate white areas. In this sense, Law No. 2018-1021 of November 23, 2018 relating to the evolution of housing, development and digital technology, has recently brought various relaxations to the applicable law.

Machine translation from French. The official text remains authoritative.

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