EPS illegally withholds information

EPS AD (Electric Power Company of Serbia), joint stock company unlawfully withholds essential information from the public about its work and the possible disposing of the assets of great value. Transparency Serbia, since 26 May 2023, has been trying to verify with the Electric Power Company of Serbia the allegations made in the media, according to which EPS was considering a proposal for the establishment of a joint company with "MVM Group" from Hungary that would take over 11 hydropower plants. It was only after the fourth appeal that TS received a reply that this information is unavailable, because providing such information "would make it difficult to achieve justified economic interests between the two countries" and that the requested documents represent business secrets "because they were marked as such by the author of the document".

At first glance, it is clear that EPS AD's decision is illegal, because the request was rejected on all ten points, although no business correspondence between EPS and the Hungarian company, nor trade secrets of that company, were requested at all. Thus, EPS treats the following as a "business secret": whether it has the proposal and the adopted agenda of the meetings of the Supervisory Boards held in 2023, whether the Hungarian company's proposal was an item on the agenda during these meetings; whether they prepared minutes from the meetings of the Supervisory Board; whether the offer was considered at the sessions; which EPS service or external consultants analyzed the submitted offer and prepared "Information" about it for the Supervisory Board; on what date EPS received the offer; with which state bodies EPS consulted or obtained opinions regarding this offer and the like.

The information that has been withheld, and is particularly significant, is whether EPS treats the offer of the Hungarian side as a "self-initiated proposal" of an interested party in the sense of the Law on Public-Private Partnerships and Concessions. Namely, that Law provides the possibility to establish a joint venture or other type of public-private partnership with a company owned by the Republic of Serbia, based on the initiative of a potential private partner, but it also requires that a bidding process should be carried out beforehand, in which the initiator must not have any advantage compared to other candidates. The obligations from this Law also apply to EPS AD, regardless of the recent change of the company status.

On the other hand, the reference to the "protection of the economic interests" of Serbia and Hungary (and not only the business interests of the companies) indicates the possible existence of an intention to circumvent the legal obligation to bid when concluding this contract by referring to an intergovernmental agreement, as the Government of Serbia has already did with numerous infrastructure projects.

Bearing in mind that the information about the existence of this offer has already been published in the media and has justifiably caused concern because it refers to the disposal of very valuable resources, the Ministry of Energy and EPS should present to the citizens plans for management of those resources, without waiting for the requests for free access to information of public importance.

It is important to emphasize that this is not the only important information on which EPS does not inform the public in an appropriate way. On 16 August, TS requested information on the manner in which the EPS Supervisory Board will determine and assess the fulfillment of the criteria for the selection of the new general director of the most valuable state-owned enterprise, since this is not stipulated by the Law, the Statute or any other publicly available decision of this enterprise, nor is it stated in the ad itself. Although the deadline for applying for candidates expires today (15 September, 2023), EPS replied that it will be able to deliver these documents to TS only on 25 September, 2023!

Furthermore, on 9 June 2023 EPS denied the original request for access to information about the meetings of the Supervisory Board with an apparently false claim in the official file that "the requested information is not contained in a certain document". Instead of filing a complaint with the Commissioner or initiating other procedures, TS gave EPS the opportunity to eliminate this illegality, which may contain elements of a criminal offense, first through a letter to the servant  authorized to act upon requests for free access to information in EPS, and then to the new chairman of the Supervisory Board. In his stead, the current acting director responded to that letter, but he did not refer to specific arguments about the illegality of the actions, but only stated the general commitment of the authorities and employees of EPS to act in compliance with the regulations. Transparency Serbia then submitted a new, additionally elaborated request for access to information, on 26 July 2023. EPS requested a longer deadline for response, because more time was allegedly needed to gather required information, as well as due to the large number of cases in the procedure. The answer that everything is a "trade secret" arrived on 11 September 2023.