Transparency and Public participation

 Opinion column of Philip Kearney

Together with three otherNuclear Transparency Watch colleagues I attended the European Nuclear Energy Forum (ENEF) conference in Bratislava on October 3-4. This opinion piece is anevaluation of the the merits of the on-going NGO involvement in ENEF activities. Some years previously NGO delegates from a number of organisations had decided to withdraw from ENEF due to frustration at the failure to include their perspectives in the proceedings and the outcomes of the meetings. NGOs are now responding invitations from the European Commission and the Forum to re-engage in its deliberations.

The context in Bratislava was welcoming, the conference competently organised and the setting and logistics well matched with similar events elsewhere. The question to be considered was whether the approach and format facilitated inclusion, multiple perspectives and a sense of equality between stakeholders.

I would argue that in spite of genuine attempts to be inclusive, the use of a traditional conference format militates against achieving those outcomes either at the process level or in terms of generating engagement and innovation.

It was noteworthy that in the opening speech on the first evening by Commissioner Šefčovič and in the remarks by the prime ministers, the key EC officials and others on the second day, there were multiple references to the importance of civil society participation and the fact of the web-streaming was continually mentioned as an indication of ENEF commitment to transparency. These added dimensions do constitute improvements and are acknowledged. Unfortunately, they do not constitute a sufficient breakthrough in terms of qualitative enhancement of public participation.

The format of the event was unimaginative, too conventional and traditional. Panels of speakers giving formal presentations with minimal audience involvement simply results in reiterating much that is already known, does not stimulate engagement or participation and basically keeps things the same.

The moderator, Ms Melinda Crane, was excellent and skilful and did a great job within the significant constraints of the format. However, a World Café (or similar) model, using small groups with a much larger civil society participation, would re-energise the format and make the event much more engaging, innovative and relevant.

The inclusion of a few civil society representatives is tokenistic and at too small a scale to have any significant impact. To be fair there were at least four speakers from the CSO sector which constitutes quite a significant proportion, but the traditional format can absorb a high degree of ‘counter-views’ without any significant moderating effect on the over-riding concerns and pre-occupations of the main players in the Forum whose perspectives continue to dominate the narrative.

It will require a significant redesign of the format to make wider participation relevant and meaningful. There were relatively few of ‘us NGOs’ in the audience but my point is that even if we were many more it would not have made a substantive difference if the format remains linear and non-interactive.

It is clear from the conclusions of the 10th Forum Plenary meeting in Prague in 2015 that the ‘crucial involvement of civil society’ is fully recognised and that the ‘general public acceptance deficit is a central issue to be addressed’. It is also clear from the 2016 Plenary that this has not translated yet into substantive engagement and involvement to achieve the ‘strong and effective participation of civil society’ spoken of in those same conclusions. There is quite some way to go.

In its recent communication “Nuclear Illustrative Programme ” (PINC) of April 2016, the European Commission states that “the EU legal framework requires increased transparency and public participation in nuclear issues, as well as improving cooperation between all stakeholders. The directives on nuclear safety, radioactive waste and radiation protection referred to above all lay down requirements on availability of information and public participation. (…) In addition, the Commission will continue to promote the dialogue between stakeholders in the European Nuclear Energy Forum”.

There is an openness to NGO engagement on behalf of the wider society. This has been demonstrated in the response to our various proposed changes and additions including:

• NGO speakers
• Participation of a second CSO representative on the steering committee,
• Independent moderators and
• Web-streaming.

These changes should now be built upon to include some of the points mentioned above but most particularly a fundamental redesign of the format to be genuinely participative and interactive. Specialist expertise in running more interactive, multi-stakeholder events should be engaged. Civil society representatives should be included at every level of the Forum’s work and in the planning and implementation of the conferences. To allow this, specific resources have to be dedicated to NGO resourcing, both in preparations and for participation.

Anything less, although well-intentioned, is merely tinkering with a tired formula and will not change it.

In summary:

My impression is that ENEF realises that the prospects for the nuclear industry are tied increasingly to its capacity to engage meaningfully with civil society. It has very limited expertise in effecting this shift and almost no imagination. NTW should urge ENEF to open up, democratise and modernise its processes and procedures and our continued participation should be contingent on them agreeing to such changes.

Philip Kearney,
Management Board,
Nuclear Transparency Watch
November 2016

An opinion column of Bender Javor, Member of the European Parliament and member of NTW

Last week the European Commission made a decision on one of its investigations related to the new Nuclear Power Plant, Paks II of Hungary. An infringement procedure was opened because of the lack of compliance with EU public procurement rules after the Hungarian Government directly awarded the nuclear project to Rosatom. In its decision the European Commission approved the reasoning of the Hungarian Government and allowed the project to proceed without competition and without transparent public procurement based on technical exclusivity, stating that only the Russian reactor fits the Hungarian legal requirements. The details of the Commission’s justifications are not published yet, however, without going into details we can draw a clear conclusion: the Paks II agreement is again one of the ad hoc, shady deals of the Commission which follows along the history of the nuclear sector from the very birth of EURATOM.

The idea at the founding of the EU was the creation of a common European market and granting equal access by Member States to scarce resources. The aim was “to make war not only unthinkable but materially impossible” (Schuman Declaration).

Although, the idea of the declaration is still valid, since the early 1950s the world is slowly moving from coal, oil and nuclear to renewable energy sources. Tackling climate change and the need to shift our economy towards sustainability have become core issues of cooperation in Europe and beyond, as for example the Paris Agreement shows. To meet these challenges, the EU amongst others created an ambitious plan of establishing a European Energy Union, further strengthening the EU’s single energy market to ensure that Europe has secure, affordable and climate-friendly energy and to further the original aim of a peaceful Europe.

While European policymaking must react to the challenges of the 21st century, it still has to fit to an outdated legal framework which dates back to the nineteen fifties and which doesn’t treat the different sources of energy equally. This is just absurd. It is as if the information and telecommunication technology market was regulated by unchanged rules since the 1950s. It seems unimaginable. And that’s exactly the case with nuclear energy.

As a primary law, EURATOM and the Treaty of the Functioning of the EU provide different rules and conditions for nuclear energy compared to other sources of energy. In theory, according to Article 194 of the TFEU, renewable energy sources should be prioritised, but in practice nuclear is in a more favourable position because EURATOM seems to be exempted from the market rules. Although Member States are free to choose their energy mix, when it comes to investment in the field of nuclear, any form of support is considered as “facilitation of investment and supporting the EURATOM objectives” (according to Art 2c of the EURATOM) and as such, state aid is lately almost automatically accepted. The European Commission madeits position clear in its decision on Hinkley Point “C”. The news about the possible outcome of the pending Hungarian Paks II state aid case also strengthens such an understanding.

When it comes to new capacity in Europe the Member States should be offering tendering procedures under Article 8 of the Electricity directive: based on technology neutrality so they could choose objectively, under market conditions, to assess which source of energy is cheapest and the most competitive for the future. Unfortunately, the Commission does not consider it applicable to nuclear energy.

In the Brittany case, France chose gas turbines to fulfil the need for new capacity. The Commission opened a case against France under Article 8 as they believed that alternative sources were not considered. But the same rules does not apply to Paks II due to EURATOM.

As I mentioned already public procurement directives are not equally applicable for nuclear and renewables and rules can be easily circumvented. In fact, the Commission is willing to accept that Member States can refer to their own technical specification when discriminating against other suppliers in the nuclear market. In any other sector of the internal market, it would be unacceptable for the Commission and of course for the European Court of Justice.

Under such circumstances, it seems that we have a biased legal environment. It allows discrimination against certain sources of energy, renewables in particular, and there are no equal opportunities on the energy market.

Since the adoption of the Rome Treaty, the treaties have been regularly updated to meet the challenges of the day. EURATOM is unchanged since 1957. The situation could be somewhat improved if there was a coherent and up to date secondary legislation in the field of nuclear on the internal market. But there isn’t. In fact the situation is comparable to a city court basing its legal arguments on a day to day direct interpretation of the Constitution Indeed, here the interpretation depends on the Commission.

The EU definitely needs a predictable strong common energy market, where investors and all Member States can feel certain about their investments and their long-term profit perspectives. But conferring special status on nuclear with exemptions from the European competition and public procurement laws cannot represent common European objectives and a free energy market cannot be built on this foundation in the future.

If the Commission really want a competitive and united energy market, they should interpret and apply the existing rules according to the needs and the conditions of the 21st century and not according to the outdated and short-sighted needs of some Member States or on the ancient traditional views of technocrats. I have no doubt that the European Court of Justice would support a position which takes into consideration the technological and political developments if the final word was theirs.