On the front

A year and a half after a suit was launched and five years after an agreement on the Paks II NPP expansion was signed between Hungary and Russia the Municipal Court of Budapest ordered the government to disclose the bulk of the contract. Following two deferrals a second instance verdict was reached in early February, 2019. On 28 March the publicly-owned Paks Ltd. released a redacted version of the 110-page EPC contract between Paks Ltd. and a subsidiary of the Russian state nuclear corporation Rosatom.

The Hungarian government first signed the agreement to construct two VVER nuclear reactors in Paks in 2014. Shortly thereafter the National Assembly adopted a proposal to classify the document for 30 years for reasons of “national security.”

Two of the government-friendly news outlets, Magyar Nemzet and Origo, neither of whom were parties to the suit, published commentaries about the Paks contract before the complainants themselves were even aware of its publication. Both sources reported that the “secret contract affair” had been “settled at last” and concluded that the contract appeared “particularly favourable to Hungary; with robust legal protections”.

But the measures – at times extreme – that Prime Minister Orbán has taken to keep a tight lid on the project specifics are curious for an investment with such favourable economic prospects. Also curious is the magnitude of funds that have been allocated to promote the project.

Access was denied to Bernadett Szél, leader of an opposition party and member of the National Security Council; many of the technical and financial conditions of the project were also unknown until the Freedom of Information Authority was asked to intervene. In 2017 Hungarian Dialogue MEP Benedek Jávor and Szél turned to the national Freedom of Information Authority (NAIH) to determine whether the “state secret” classification of the contract was justified. The bulk of the documents were declassified before the investigation ended, but the NAIH still supported the concealment of information that could have geopolitical consequences and a significant impact on both the country’s economic future and its safety.

Background

On 13 January, 2014, the Hungarian government spokesman announced that the Prime Minister was in Moscow to discuss economic affairs with the Russian President. The following day Rosatom and Paks Ltd. signed the nuclear expansion agreement; it was declared that the Russian state bank would also provide a €10 Bln loan to finance 80% of the project under conditions that were not shared at the time. Government officials maintained, and continue to maintain, that the decision had already been authorized by the National Assembly in 2009. In reality, the resolution only consented to the initiation of preparatory activities for a nuclear expansion.

Many key impact studies and feasibility reports were kept under wraps prior to and following the signing of the agreement, and MPs and NGOs are still seeking access to expert opinions that, in principle, should already be accessible to the public. In principle, the government has the duty to make the contracts of all publicly-owned and publicly-funded entities public. In practice, the electorate has been entirely excluded from a decision with profound political and economic implications.

Paks II contract lawsuits

Benedek Jávor MEP has been fighting for access to the implementing agreements that stipulate the design, construction, operation and maintenance of the two VVER reactors since 2014 and launched a suit against the government and Rosatom in 2017. Under a first instance decision in May, 2018 it was established that Hungary’s Freedom of Information Act applies to international agreements as well as to national ones, and that the government could not justify classifying thousands of pages of a public contract. The Court also recognized that the MEP’s access requests had “not been abusive,” as the defence attorney had argued.

Notably, the second instance court contested the legitimacy of the “national security” grounds exception that the first instance court had recognized, but identified a number of sections that would remain classified to protect the business interests of Rosatom. This includes the project’s execution schedule, official permit details and technical documentation along with sections covering liquidated damages, general limitation of liability, and most importantly, termination conditions.

In a separate case, Hungary’s leading economic and political news weekly HVG also won its lawsuit to access the contract on 7 March, 2019. HVG argued that the judgment appears to suggest that the governments of Hungary and Russia determined that nuclear safety aspects must also remain secret to protect business interests. It is not clear from the judgment on what grounds Rosatom’s business interests override the public’s interest in disclosure of the termination conditions—potentially a sum of around €12 Bln which could effect the central budget for decades to come.

Neither HVG nor Jávor are entirely satisfied with the amount of information that Paks II Ltd. released publicly. Their prime objective with the lawsuits was to discover the potential financial repercussions of unilateral contract termination, which are as yet unclear. Jávor argues that the disclosed documents represent only a fraction of the total contract portfolio, which may include thousands of pages of annexes.

In the meantime, the daily Népszava reports that Russian designs are continually failing to meet EU standards and that a shortage of skilled workers in Hungary is a pressing problem. In January of 2019, the head of the opposition party LMP submitted a freedom of information request to learn the amount of the additional costs of the Paks nuclear plant expansion resulting from the project’s now significant delay. The right-wing opposition party Jobbik also announced that it wants to establish a parliamentary committee to review the Paks II project. Given the government’s track record, neither initiative has much likelihood of success.

Safety permit schedule modified to protect “national economy”

 For his part, Benedek Jávor MEP announced that he intends to submit further freedom of information requests related to the contracts. At a press conference on 3 April the MEP urged the Hungarian government to initiate the annulment of the Paks expansion contract, arguing that neither Hungary nor Russia have the skilled capacity to meet the deadlines with quality work. Citing security risks, he added that repeated attempts to undercut official permit procedures will compromise the integrity of the process, leading to nuclear safety risks.

Presumably under great pressure to limit the financial consequences of the delay, Hungary’s Prime Minister is again resorting to extreme measures: a legislative package was adopted on (Sunday) 7 April that, inter alia, simplifies and accelerates the permit process and, according to Jávor, shortens certain permit deadlines by a third. The bill advocates the revision of administrative deadlines of the nuclear regulator’s procedural regulations to “ensure that the investment in the Paks Nuclear Power Plant is suitably effectuated”.

Both pro- and anti-nuclear advocates see eye to eye on the fact that safety can only be assured by a range of independent and well-informed oversight bodies. As is the case with any controversial initiative, the public also plays a role in monitoring its effects or in holding governments or industry accountable. The United Nations called access to information the “touchstone of all the freedoms” at its opening session in 1946, because, without timely and accurate information citizens are not in a position to assess the legitimacy of decisions made on their behalf.

Access is a necessary basis for exercising a broad range of civil and human rights.

Christiana Maria Mauro is a data protection and transparency advocate based in Budapest. She has contributed to public interest initiatives at the European level, focusing on civil liberties and EU governance. She has a background in the social sciences, humanities and law. Christiana has been working in partnership with Nuclear Transparency Watch since 2016.

NTW member Dr David Lowry is widely known for his stubborn and very effective work on nuclear transparency in the UK. Over the years, he has used all the tools in the legal toolbox to prevent important information being kept out of the public domain and in that way influenced many important nuclear debates in Britain. His instruments include access to information requests, but also parliamentarian questions and intensive on-line research. Dr David Lowry calls on NTW members and others following nuclear developments to more intensively use these instruments. That is an important call, because his work shows that the lack of transparency in the nuclear sector still enables politicians to hide the complexity of nuclear decision making, including issues around the true cost of nuclear energy, the important role of co-operation in nuclear medicine, the ongoing radioactive waste problem, and even the link between civilian and military nuclear sectors. Lowry’s work gives extremely good examples how to go about delivering more transparency in real life and we certainly will feature more of them here in the future. NTW also plans to set up a library where this kind of information will be stored so that other nuclear transparency activists can maintain access.

Last month, Lowry revealed key-information on the nuclear fall-out of the Brexit process on the loss of co-operation in the field of nuclear power, that he had obtained over parliamentarian questions. In a detailed blog including the full response from the Chair of the Business, Energy and Industrial Strategy Committee in the British Parliament, Rachel Reeves, to the Energy Minister Richard Harrington, he sharply analysis how the industry bias of this MP leaves out important issues from the national debate and counters that with what a different Committee in the House of Lords has found on the subject and explanations and reactions from different other UK politicians, and adds background material.

 A second blog addresses the thorny issue how title swaps of plutonium from reprocessing will be influenced by Brexit. Again, Lowry extensively quotes from official answers Green MP Caroline Lucas received on Parliamentarian questions from the relevant responsible politicians.

This surfaces, amongst others, that special fissile material (e.g. plutonium left over from reprocessing in Sellafield) is collectively owned by Euratom, “but the operator with the legal title to the material has an ‘unlimited right of use and consumption’ over it, subject to their complying with the obligations imposed on them by the Treaty.” The Business and Industry department (BEIS) continues that Euratom’s overview will cease after Brexit, claiming that “These provisions will not have any practical impact on the day to day management and use of the material.”

Lowry then continues to analyse how this is fundamentally wrong and illustrates that with how Swedish plutonium from its closed R-1 reactor in Oskarshamn, now in the UK after reprocessing in Sellafield, is to be transferred into UK ownership, one of several of such transfers. This opens for me from this side of the Channel the concern that without Euratom overview, it becomes unclear what the long-term fate of this plutonium stockpile will be. Will it end up in MOX, will it have to be disposed of in a for now non-existing disposal in the UK, or may it be diverted to the UK’s military programme? The background documentation that Lowry gives only increases the picture of a lot of high-brow talk but little assurances.