Overview of activists’ submissions addressing lack of public access to nuclear sector information in Slovakia

From Peter Mihok, member of NTW.

As the NTW informed on 12 May 2020 via Twitter and a new website item [1], both linking to the original factsheet prepared by its Slovak member [2] (note: the current updated factsheet is here [3]): for more than a decade, there exist crucial concerns with regard to public access to nuclear sector related information in Slovakia. This is due to an interplay between many controversial amendments of Environmental Impact Assessment (EIA) Act, Freedom of Information Act (FOIA), Atomic Act and other related acts, adopted since 2009. In the cumulative effect of all these amendments, the Slovak Nuclear Regulatory Authority (NRA) was provided with a new legal right to consider the complete content of nuclear sector documents as confidential, since 1 May 2010.

The above referred Slovak law amendments became subject of UNECE Aarhus Convention Compliance Committee (ACCC) scrutiny [4]. Originally, this was due to a dispossession of NGOs of their formal legal standing status in EIA procedures (appealed at the ACCC by the Austrian NGO GLOBAL 2000 / Friends of the Earth Austria on 28 July 2009 [5]).

Peter Mihók, the Slovak NTW member, explained in the two academic journal papers [6] that the introduction of a flat‑rate non‑transparency concerned particularly and only nuclear sector related information. Furthermore, he explained that the introduction of this flat-rate non‑transparency was a direct response of the Slovakian authorities to the outcomes of EU infringement procedure regarding non‑compliance of the Slovak EIA Act with the EU AIA Acquis (i.e. a very similar non‑compliance as the ACCC submission/case from 2009 referred in the paragraph above).

Some/relevant of the above referred laws have been “softened” here and then in 2011 – 2018, in order to “soften” the clauses that allowed flat-rate classification of documents/information related to nuclear sector as secret/confidential/classified. This was a consequence of the below referred findings about relevant Slovakia’s laws’ and legal documents’ non compliance with the Aarhus Convention in particular with regard to lacking public access to nuclear sector related information/documents. Due to a combination of a rather high number plus a rather lengthy and complicated nature of these ‘softening law amendments’, it was not possible for the Slovak and/or other relevant NTW member(s) to dealt with this topic, i.e. to a lack of capacities to deal with such a ‘legally expert topic’. The bottom line here is that Slovakia was unable to transpose the Aarhus Convention into its national legislation on public access to nuclear sector related information/documents for more than a decade.

Moreover, as explained in the updated NTW factsheet [7], the Slovak parliament approved another controversial FOIA amendment in 2019. This provided for yet more reasons to classify information/documents falling under the Slovak Atomic Act as confidential. This amendment extended possibilities to justify non‑transparency by banking secrecy, telecommunications secrecy, and/or postal secrecy. This became a subject of further UNECE ACCC scrutiny, under the procedure which concerned the decision VI/8i adopted by the Meeting of Parties to the Aarhus Convention at its sixth session [8], and which formally (re‑)started on 14 September 2017 [9].

Following more than a decade of disrespect to the Aarhus convention, several Slovakian activists joined their forces, and prepared the three different submissions to the Slovak authorities in August – October 2020, all of them focused on Slovakia’s non‑compliance with the Convention with regard to nuclear sector related information/documents and/or project permit procedures.

Following the official information about plans of the Ministry of Justice (MoJ) to amend FOIA [10] (in order to transpose the EU Directive 2019/1024 from 20 June 2019 [11]), the Slovak NTW member Mr. Peter Mihók, together with the Slovak activist in radioactive wastes related issues Mr. Michal Daniška, submitted an official impetus to the MoJ [12] under the Slovak legal framework to influence preparation of laws/law amendments on 3 August 2020. In this impetus, they reminded the MoJ about the item 11 on p. 109 of the (pre‑)election program document of the Slovak Government current leading political party ‘OĽaNO’ [13] about ‘bringing an era of a flat rate non transparency of commercial nuclear sector information to an end’. In a justification of a relevancy of their impetus, they referred also to the Second ACCC progress review from September 2019 [14], by means of which the ACCC confirmed that it considered Slovakia not yet fulfilling the requirements of the above referred (and linked) Decision VI/8i.

In parallel to the activity referred in the paragraph above, the two Slovak lawyers – Ms. Dana Mareková (as a citizen of Slovakia, affiliated with the Austrian NGOs Global 2000 a Wiener Plattform Atomkraftfrei), and Mr. Peter Wilfling (NGO Via Iuris), prepared a detailed legal analysis of Slovakia’s non‑compliance with the Aarhus Convention with regard to nuclear sector related information/documents and permit procedures. In a form of a letter to the State secretary of the Ministry of Environment (MoE) Mr. Smatana [15] (CC: Minister of Justice Ms. Kolíková, and State secretary of the Ministry of Economy Mr. Galek), this legal analyses was sent to all the three relevant Slovak Ministries on 22 September 2020. This submission also requested to remove legislative and application barriers in the application of the Aarhus Convention in relation to a nuclear sector in Slovakia. This submission was also signed by the Slovak NGOs CEPTA and Via Iuris, the Slovak office of Greenpeace CEE, the Slovak Civic Initiative We want a healthy country, and also by Mr. Peter Mihók (the Slovak member of the NTW).

Without any relation to the above referred letter, on the same day, the Environment Minister Mr. Budaj informed at a press conference that also the monitoring committee of the Council of the European Union has approached Slovakia in relation to a potential non‑compliance with the Aarhus Convention specifically with regard to the nuclear sector information (see for ex. the TASR press release [16]).

On 1 October 2020, the Slovak members of the EURAD Civil Society Larger Group (Mr. Mihók and Mr. Daniška) submitted an official proposal to the MoJ[17]. In this submission, they requested the MoJ to amend the FOIA in a way revoking all the relevant FOIA amendments from 2010 – 2019 by means if which a flat-rate non‑transparency of commercial nuclear sector information has been introduced/expanded in the relevant Slovak laws. This proposal was supported (also signed) by the 32 members of the informal Slovak association of environmentalists [18].

Also on 1 October 2020, Mr. Mihók and Mr. Daniška sent an email/information to the UNECE Aarhus Convention Compliance Committee [19], in which they informed the ACCC members about all the three above referred citizen submissions to the Slovak authorities.

[1] https://www.nuclear-transparency-watch.eu/activities/transparency-and-public-participation/towards-an-end-of-flat-rate-non-transparency-in-the-slovak-nuclear-sector.html

[2] https://www.nuclear-transparency-watch.eu/wp-content/uploads/2020/05/20200512__Mihok__Slovakia_transparency_update-_-NTW_factsheet.pdf

[3] 20201116__Mihok__Slovakia_transparency_update-_-NTW_factsheet

[4] https://www.unece.org/env/pp/compliance/Compliancecommittee/41TableSlovakia.html

[5] https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2009-41/Communication/Aarhus090701.doc

[6] https://doi.org/10.1057/kmrp.2011.22 and https://doi.org/10.1016/j.pnucene.2019.103192.

[7] 20201001__Mihok__Slovakia_transparency_update-_-NTW_factsheet

[8] http://www.unece.org/fileadmin/DAM/env/pp/compliance/MoP6decisions/Compliance_by_Slovakia_VI-8i.pdf

[9] http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/implementation-of-decisions-of-the-meeting-of-the-parties-on-compliance-by-individual-parties/sixth-meeting-of-the-parties-2017/decision-vi8i-concerning-slovakia.html

[10] https://www.slov-lex.sk/legislativne-procesy/SK/PI/2020/146

[11] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.172.01.0056.01.ENG

[12] 20200803__Slovakia__copy_of_Impetus_to_MoJustice