Life after historical EU decision: what should Kyiv do to speed up accession negotiations

The European Council has voted to open accession negotiations with Ukraine. This is a historical decision for Ukraine and the EU.

Ukraine is entering the negotiation process to become a full-fledged EU member, which the country has aspired for over a long period. The EU, it seems, has learned the lessons and shown the ability to act decisively in times of security challenges.

This means that the relations between Ukraine and the EU reached a new level. What does it really mean?

How will the dialog between Kyiv and Brussels continue? What can speed up the negotiation process required for full membership?

What risks should the Ukrainian government account for to avoid stalling of the process?

Let’s try to figure it out.

Window of opportunities

It is very important that the decision has been approved now, and not postponed until March or even June 2024. Postponement of the decision did not necessarily guarantee that the consensus would have been reached smoothly. Elections to the European parliament that can shift the focus of attention are not the only reason. The overall consensus on the enlargement is unstable and Hungary is not the only factor.

European experts assume that anti-European sentiment may increase in some EU countries, for example, Austria, Italy, Germany, and France, which won’t facilitate the process of admission of new members.

Recent opinion polls indicate that EU citizens are becoming increasingly less supportive of its enlargement.

For example, a study by the European Council on Foreign Relations (ECFR) conducted in six EU countries, including Austria, Denmark, Germany, France, Romania, and Poland, showed that on average, respondents are more likely to oppose (37%) than support (35%) the accession of new members to the EU.

For Ukraine, however, the situation is more positive than for other candidates, as 37% of respondents believe that Ukraine should become a member of the EU, while 33% do not share this opinion. Among EU member states, citizens of Poland, Denmark, and Romania are the most supportive of our accession.

Therefore, the green light for accession negotiations with Ukraine (and Moldova) proves that EU leaders understand the risks of postponing this decision, and therefore have skilfully seized the moment.

Turbo-regime for negotiations with Ukraine

Now Ukraine enters the technical stage of the negotiations.

According to the procedure, the European Commission will start preparing the negotiation framework, a key document defining the general principles of the negotiation process with a candidate country.

For example, the candidate country must align its national legislation with EU norms. The negotiation process begins and ends with fundamental reforms. The pace towards full membership depends solely on merits. It is only part of the EU’s requirements.

This document is developed for each candidate country separately, but the structure and wording are the same for all candidates.

Simultaneously with the preparation of the “framework,” the European Commission will begin screening Ukrainian legislation for compliance with EU law.

This process tends to take place after the intergovernmental conference, but in the case of Ukraine (and Moldova), the European Commission decided not to waste time and start screening immediately after the political decision to open accession negotiations.

The only exceptions are individual conditions that apply to a particular country (for example, for North Macedonia, this is the implementation of the Prespa Agreement with Greece and the Treaty of Friendship, Good Neighbourliness and Cooperation with Bulgaria).

The negotiation framework reflects the EU’s approach to enlargement and, accordingly, undergoes transformations. In fact, each wave of enlargement generally brings new features to the negotiation framework.

For example, for Albania and North Macedonia, a new-generation negotiation framework was developed that is based on the updated EU enlargement methodology approved in 2020. Notably, these innovations in the process do not violate the essential essence of the negotiation process – the adaptation of the legislation of the candidate country to EU law.

There have already been statements by the European Commission that the negotiation framework would also be different for Ukraine. The possible new features include simplification of the procedure of opening and closing negotiation chapters, which currently requires consensus of all member states.

If these predictions are correct and the European Council approves voting by a majority on these issues, the risk of blocking will be significantly reduced and the negotiation process is likely to accelerate.

The adoption of the negotiation framework will allow the convening of the First Intergovernmental Conference, during which the formal opening of accession negotiations will take place.

Simultaneously with the preparation of the “framework”, the European Commission will begin screening Ukrainian legislation for compliance with EU law. This process tends to take place after the intergovernmental conference, but in the case of Ukraine (and Moldova), the European Commission decided not to waste time and start screening immediately after the political decision to open accession negotiations.

Nevertheless, the EU Council can approve the negotiation framework only after Ukraine fully meets the four conditions set by the European Commission in the EU enlargement package.

According to government information, Ukraine is approaching the finish line. All that remains is to adopt a high-quality lobbying law in parliament.

Ukraine can start acting proactively only once it’s been accomplished.

This includes not waiting for the screening of the Fundamental Reforms cluster and starting to fulfil opening benchmarks for opening negotiations on these chapters:

• roadmap for the implementation of reforms in the areas of “The Judiciary and Fundamental Rights” (negotiation chapter 23) and “Justice, Freedom and Security”;
• action plan for public administration reform;
• roadmap for the functioning of democratic institutions.

These action plans must integrate the recommendations of the European Commission following the screening. However, Ukraine could already begin preparing these documents based on the self-screening report, and later only make adjustments based on the gaps in legislation identified during the screening of the European Commission.

This would save time and show the EU that Ukraine is not losing its pace of European integration.

Danger of non-specific requirements

The next stage is the definition of interim benchmarks in the rule of law.

These conditions are also set by the European Commission and are based on the provisions of the mentioned roadmaps. This means that plans for reform actions must be carefully developed, as they will become a real guide for European integration reforms, not just showcase documents.

The experience of Western Balkan countries, however, shows that the European Commission usually formulates interim conditions in general terms without clear requirements and consideration of the candidate country’s context. This creates room for interpretations, additional EU conditions, and, as a result, prolongation of negotiations.

To avoid this in the case of Ukraine, the Ukrainian Centre for European Policy, together with the Centre for Political and Legal Reforms, has undertaken the development of recommendations regarding the rule of law, specifically judicial reform.

Independent quality expertise of Ukrainian analytical centres has the trust of European institutions, and therefore we hope to have an impact on changing the approach of the EU to the negotiations in the fundamental reforms cluster.

The results of our research will be presented early next year. We hope that the European Commission will take our recommendations into account when developing specific requirements for Ukraine. However, negotiations on EU membership are not just about strengthening the rule of law, although this is undoubtedly a fundamental factor for the progress of sectoral reforms.

Fulfilling the initial conditions and the start of negotiations in the “Fundamental Reforms” cluster allows the opening of other clusters where Ukrainian legislation has the highest level of alignment with EU law.

The condition for the start of negotiations for these clusters is the preparation of a negotiating position by the candidate country, which should set out a list of steps that the country undertakes to take to fully implement EU law, and whether it has sufficient administrative capacity for this.

This document should also indicate the transition periods necessary for the transposition and implementation of European norms.

This point is important because it is around these issues that the “real” negotiations between the candidate country and the EU take place.

And it is the transition periods that allow the economy of the candidate country to adapt to European rules of operation.

Accordingly, the Ukrainian government must already at this stage begin a deep analysis of various sectors of the economy, hold consultations with businesses and civil society to assess the situation and determine the necessary transition periods to smoothly pass the stage of adaptation to EU norms and standards and the associated costs.

European norms are developed for countries with a strong market economy, and in the context of war, Ukraine obviously cannot claim this status and the implementation of certain EU policies will need to be delayed in time.

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The EU’s decision to open negotiations makes the European future realistic for Ukraine.

In practice, this means that the European integration will stop being “homework” exclusively for Ukraine, as is the case with the performance of the Association Agreement.

The EU will now also be actively involved, assessing all roadmaps for reforms and setting conditions for progress in the negotiation process.

Currently, Ukraine is only at the beginning of the road, but with a wise and decisive approach, we will undoubtedly be able to overcome this difficult path.

eurointegration.com.ua