Analysis: Ukraine’s application to join the EU – realistic?
David Conlan Smyth SC, Anna Bazarchina BL, William Morrin BL and Patrick Fitzgerald BL – members of the EU Bar Association of Ireland – unpick the legal hurdles and steps involved in Ukraine becoming a member state of the European Union.
On 28 February 2022, just four days after being invaded by Russia, Ukraine submitted an official request to join the EU requesting the use of a special fast-track procedure. At an extraordinary session of the European Parliament on 1 March 2022, the President of Ukraine, Volodymyr Zelenskyy confirmed in an emotional plea the request for membership.
The legal issues addressed here are what conditions must Ukraine fulfil for candidate and/or membership status and what procedures apply.
The current legal relationship – EU-Ukraine Association Agreement
Current relations are governed by the EU-Ukraine Association Agreement in force since 1 September 2017.
The decision by the then President Yanukovych’s Government not to ratify the Agreement – which followed about two decades of negotiations between the parties – and instead to commit to further integration with Russia and the Eurasian Economic Union, sparked the “Euromaidan” protests of 2013/2014. The protests led to a change of Government in Kyiv and ultimately, the new Ukrainian Government committed itself to closer relations with the EU.
On its face many of the fundamental issues of principle that underpin EU membership have already been addressed in the Agreement.
The Agreement promotes deeper and stronger political and economic links between the parties and recognises that “Ukraine as a European country shares a common history and common values with the Member States of the European Union (EU) and is committed to promoting those values”.
It counts amongst its objectives the need to “promote, preserve and strengthen peace and stability in the regional and international dimensions” in accordance with inter alia the principles contained in the United Nations Charter. It also lays down the aim of establishing “conditions for enhanced economic and trade relations leading towards Ukraine’s gradual integration in the EU Internal Market” through for example the EU-Ukraine Deep and Comprehensive Free Trade Area (DCFTA).
Becoming a candidate for EU membership
Full membership is out of the question at present for Ukraine.
The process is complex and requires adherence to the Copenhagen criteria discussed below and the adoption of the acquis communautaire, the body of binding EU law. That will take years. Notably the European Commission has dismissed any idea that President von der Leyen’s “one of us” remark meant that Ukraine could avoid going through the hoops faced by European States seeking to join the EU. In the case of Spain and Portugal the negotiation process alone took six years before their accession in 1986. Poland’s application for membership was made in April 1994 but it took a full ten years before its accession in May 2004.
Whilst the Association Agreement with Ukraine can be regarded as a first step to full EU membership, the crucial and urgent matter for Ukraine at present is to acquire candidate status whether potential or full. Full candidate status can be granted to a European State which has been approved to enter accession negotiations for the purposes of joining the EU as a Member State. Whilst full membership itself only results from a slow and complex process, becoming a candidate country is not encumbered by any firm Treaty rules. The procedure rather involves the European Council (comprised of the heads of Government and where appropriate heads of State of the Member States) deciding to grant candidate status following a recommendation of the European Commission. The hard work actually begins afterwards when accession negotiations begin.
Ukraine has significant support for candidate status. Eight central/eastern EU Member States co-authored a letter some days ago supporting Ukraine’s application for candidate status saying Ukraine “deserves the perspective of EU accession”. Three further Member States have since supported this step. There is no obvious legal difficulty preventing the granting of candidate status (or even more readily potential candidate status) to Ukraine at this point so long as the Member States agree and the Commission recommends such a step. Albania was granted candidate status some five years after its application made in 2009 yet Montenegro achieved candidate status in just two years. Whilst it would be unprecedented to acquire candidate status immediately, there is no obvious legal bar to Ukraine being granted potential candidate status given the current extraordinary circumstances.
Full candidate status could also be considered at this point with a much longer accession negotiation period but that might be more difficult to achieve as a matter of realpolitik.
Becoming an EU member state
Article 49 of the Treaty on European Union (TEU) provides that any European State may apply for membership if it respects the democratic values of the EU and is committed to promoting them. These fundamental EU values include respect for human dignity, democracy, rule of law and human rights, as well as the protection of minorities.
During the protracted accession negotiations, candidate countries must demonstrate adherence to the ‘Copenhagen criteria’ requiring political stability, democracy, rule of law, a functioning market economy and the administrative capacity to assume the obligations of membership.
Procedurally an application for EU membership is addressed to the Council (representing the Governments of the Member States) which decides on the negotiation framework. The European Parliament and national parliaments are notified of the application for membership. Negotiations regarding matters as diverse as the internal market, the green agenda and external relations then ensue following which the Commission gives its opinion on the application to the Council which – having received the consent of the majority of the component members of the European Parliament – decides on the application unanimously. All of this is time-consuming and unfortunately has not necessarily achieved a lasting adherence to the Copenhagen criteria in certain Member States following accession.
The final stage of the process is accession to the EU by the candidate country which is achieved through an accession treaty which provides for the terms and conditions of the applicant State’s membership including the crucial membership date. The accession treaty does not enter into force until it is approved by the EU Council, the European Commission and the EU Parliament, as well as being signed and ratified by the applicant State and by every Member State.
What is realistic and what is not
The reality is that joining the EU as a full member remains a distant prospect for Ukraine and would take many years. There is no fast-track process. However the grant of candidate status or at the very least potential candidate status is clearly achievable now having regard to the flexibility in this regard both in terms of procedure and criteria as a matter of EU law.
Granting immediate candidate or potential candidate status to Ukraine at this point would be a logical step forward from the Association Agreement. It would signal support for a beleaguered democratic nation and express the solidarity of its European partners who support the rule of law, freedom and respect for human rights. No legal reason presents as to why this cannot happen.