Ukraine’s Accession Cannot Happen Overnight, but it Deserves Due Consideration
12 April 2022
The author is a WMCES Visiting Fellow and the former Polish Secretary of State in the Office of the Committee for European Integration, who was involved in Poland’s accession to the EU.
On 11 March 2022, EU leaders met informally in Versailles to discuss the Russian war against Ukraine. The question of how to address Ukraine’s bid for EU membership remained unanswered. Heads of states simply noted that the Commission should prepare an opinion on this request, the so-called “Avis”, which is part of the formal procedure. It was not a visionary response, but a technocratic one. How can the Commission assess whether Ukraine is ready for membership while the country struggles against Russian invasion? There is a need for a considered approach that would guide the EU and Ukraine into a joint post-war era.
In rather dramatic circumstances, Ukrainian President Volodymyr Zelensky signed an application for Ukrainian membership of the European Union, a plea to determine his country’s future. No one would reasonably expect that membership could be granted immediately, but in such atrocious times, it is necessary to respond credibly. There were calls, also among EPP leaders, to grant Ukraine candidate status. As the summit approached, some diplomats felt such a move would be low-risk, as it is never clear whether a candidate will actually eventually become a member. But this argument can be reversed, too. It does not seem entirely honest to offer candidate status on the assumption that it may not necessarily lead to membership. After the unequivocal declaration of the European Commission and the clear position of the European Parliament, some countries expected that the Council would adopt a similar stance in Versailles. In this respect, the Versailles Declaration fell short of their expectations. It does not create a fast-track procedure or promise candidate status to Ukraine; however, it does include some new elements.
EU leaders unanimously affirm that “Ukraine belongs to our European family”. This goes a few inches further than the wording of the EU-Ukraine summit last October. The Versailles Declaration notes that “the Council acted swiftly and invited the Commission to deliver its opinion on this request in accordance with the relevant provisions of the Treaties”. Now, any next step depends on a competent, but dry and technocratic analysis done by the Commission. Even without a clearer commitment on the candidate status, asking the Commission to prepare the Avis means that the discussion on Ukraine’s eligibility to become an EU member is thus over.
However, the follow-up to the political response to Ukraine’s application should respect all the accession process’ requirements. Any decision must also be consistent with the approach taken by the EU towards other candidates such as those of the Western Balkans, or others countries, like Georgia or Moldova.
The process of preparing a country for accession is complex and time-consuming. Simply asking the Commission to prepare an opinion on Ukraine’s application, the aforementioned Avis, is a bit confusing at this stage. How can the Commission reasonably assess whether Ukraine is capable of applying the acquis communautaire, while Russian bombs are dropping on the very institutions which would be applying EU regulations? Could one expect to receive quickly trustworthy answers to the thousands of questions in the typical questionnaire, which is soon going to be used by the Commission for this purpose? Is it possible to judge whether the Ukrainian administration is mature and can operate stably, as EU members expect? Drafting now an typical Avis on Ukraine’s membership application following standard methodology, through a detailed review of all the chapters of the acquis, would probably lead to unconvincing conclusions, as Ukraine is not currently in the position to deliver all the detailed information required.
Therefore, I recommend a different approach, The preparation of the Avis should be divided into four distinct phases; namely, assessment whether Ukraine meets criteria to obtain candidate status, guidance towards reconstruction, assistance with implementation of the acquis, and final assessment.
During the first phase, on the basis of relatively straightforward assessment of the Ukrainian economy, legal system and administration structures and intentions of the Ukrainian Government described in the answers to the first short questionnaire, the Commission should be able to propose to the EU Member States to decide, whether, under the condition that as they are, Ukraine can be granted candidate status for EU membership.
Whenever the war ends, Ukraine will need major reconstruction. The EU should prepare to offer massive support, clearly linking this support to Ukrainian membership aspirations. It is necessary to focus on rebuilding Ukraine with the objective of integrating it with the EU. This part should therefore serve as a very solid guidance for any reconstruction effort focused on path towards the EU, indicating what should be done beyond the existing Association Agreement and its Deep and Comprehensive Free Trade Area. For several years, there has been an intense dialogue between the EU and Ukraine to bring the Ukrainian legal framework closer to the acquis communautaire; since 2014, significant progress has been made in this respect. Thus, the Commission, and in particular DG NEAR (including the European Commission Support Group for Ukraine – SGUA – and the EU Advisory Mission for civilian security sector reform – EUAM) has a fairly good idea of Ukrainian efforts so far. But since 24 February this year, the situation has changed dramatically. Gradual adaptations based on “best efforts” principles and soft obligations with no clear deadlines will no longer be sufficient. Therefore, this part of the fully fledged Avis should focus on the required transformation and improvement of economy and trade, services and labour markets, environmental and energy standards, as well as administrative capacities, an impartial judiciary, and the rule of law. These reconstruction programmes could be arranged – as typical Avis – according to the chapters of the acquis communautaire and the necessary adaptations, bringing the country closer to the EU.
The next phase of the Avis should begin at a certain stage of the implementation of the reconstruction programme, when it will be possible to assess in detail the progress made towards adopting the EU’s legal framework. Financing reconstruction programmes can be converted to pre-accession facility with even clearer focus on integration process. In the meantime, the Association Agreement, including the Deep and Comprehensive Free Trade Area, could be significantly enhanced. Additional rights for Ukrainian entities and citizens could be given, in step with the obligations assumed by Ukraine. For example: a customs union between the EU and Ukraine could be established, or the inclusion of Ukraine within the Emissions Trading System to avoid that the country is negatively affected by the proposed Carbon Border Adjustment Mechanism – CBAM.
Solid progress in implementing these programmes and transforming Ukraine’s economy and legal system would enable the writing of final conclusions of the Avis. Only then would it be possible to convincingly answer the question of whether Ukraine meets membership criteria, in general terms and in practical details. Such a conclusions would allow the EU to take a final decision on accession negotiations.
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