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Ukraine’s accession talks need bold action in Kyiv and Brussels

Amanda Paul , Svitlana Taran

Date: 24/03/2023
Once Kyiv has reasonably met the European Commission’s seven steps, opening accession negotiations with Ukraine must be a geopolitical imperative for the EU.

In June 2022, Ukraine became an EU candidate country, bringing Kyiv a step closer to opening accession negotiations. However, what happens next depends on Ukraine meeting the remaining criteria, as detailed in the European Commission’s June Opinion on Ukraine’s application, and the EU’s political will and readiness to become a real geopolitical and strategic actor. While some EU member states are sceptical about further enlargement, the Union must look at the bigger picture. The future of European security depends on integrating the Eastern neighbourhood along with the Western Balkans. Unnecessarily stalling Ukraine’s process would signal that the EU has learned nothing from Russia’s brutal war in Ukraine. Thus, a credible and revitalised enlargement process is a geopolitical imperative.

A historic milestone

Ukraine has long craved EU membership. It is an issue of strategic importance, closely linked to the country’s struggle for self-determination, independence, and sovereignty. Today, 87 percent of Ukrainians support joining the club. Yet, until 2022, the EU door was de facto locked. Differences between EU countries over Ukrainian membership and enlargement policy more generally, along with concerns about Russia’s reaction, left Ukraine barely able to have its EU aspirations recognised, let alone become a candidate. Ukraine had to be satisfied with implementing an Association Agreement (AA) and a Deep and Comprehensive Free Trade Area (DCFTA).

A geopolitical tsunami

But Russia’s full-scale war on Ukraine changed everything. Five days after it began, Ukraine applied for EU membership, subsequently completing the membership questionnaire. Usually, it takes years for the European Commission to deliver its opinion. Yet, exceptional circumstances necessitate exceptional decisions, and Commission President, Ursula von der Leyen, promised a speedy process. On 27 June,  the Commission gave a positive opinion, and days later, the European Council granted Ukraine and Moldova candidate country status while Georgia was also offered that prospect. It was a crucial geopolitical move and a powerful signal of EU support and solidarity with Ukraine during the most difficult time in its modern history. After years of stasis, it represented a major shift in EU policy, thrusting enlargement back to the top of the EU's agenda.

Getting fit for the EU

Ukraine already qualifies for candidate status given its progress in implementing the AA and DCFTA, strong macro-economic record, operational and stable institutions and resilience. Still, with residual weaknesses in several fields, the Commission made progress in seven areas, a prerequisite to opening accession talks. Keen to capitalise on this watershed moment, Kyiv has cracked on, despite the war. As table 1 shows, steps have been taken in all areas. However, progress is more advanced in some areas than others.

Table 1. Ukraine’s implementation of the European Commission’s conditions, as of March 20

European Commission’s conditions State of Play  
1. Constitutional Court reform Constitutional Court reform is crucial given the frequent constitutional crises and history of politically appointed judges. As a result, Ukraine reformed the selection procedure for judges by establishing an Advisory Group (AGE) composed of Ukrainian and international experts tasked with checking the integrity and professional competence of candidates. Yet by maintaining the balance between international and national AGE members, the law fails to grant the group the ability to veto candidates who fail to meet the criteria and to prevent a possible deadlock during the selection process. To avoid a deadlock situation, the Venice Commission suggested adding a seventh member appointed by the international partners. Notably, the Venice Commission hardened its previous opinion after pressure from Ukrainian civil society. Therefore, Ukraine must further amend its legislation to address these concerns.
2. Judicial reform Ukraine resumed the selection process for members of key judicial governance bodies, the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ). As of 20 March 2023, 17 out of 21 members were elected to the HCJ following integrity checks by the Advisory Ethics Council with the participation of international experts. It subsequently resumed its work. Kyiv must now appoint the remaining members to the HCJ and complete the candidate selection for the HQCJ (16 members). However, Ukrainian civil society has concerns related to ensuring the integrity of some selected candidates, which must be addressed. 
3. Anti-corruption reform
A new head of the Specialised Anti-Corruption Prosecutor’s Office (CAPO) and a new director of the National Anti-Corruption Bureau (NABU) were appointed following a competition. The selection committee consists of Ukrainian and international experts. SAPO and NABU have made progress on several high-profile cases. The government also approved the State Anti-Corruption Programme for 2023-2025. However, civil society emphasises the importance of resuming the mandatory asset e-declaration that was suspended after 24 February 2022 and regular checks of the asset declarations of officials by the National Agency for Prevention of Corruption (NAPC). 
4. Anti-money laundering and law enforcement sector reform The European Commission requested that Ukraine adopt six laws implementing Financial Action Task Force (FATF) standards. So far, only three laws have been implemented. While a strategic plan to reform the law enforcement sector has been drafted, it still requires adoption. 
5. Anti-oligarchic law Full implementation of the anti-oligarch law in line with recommendations of the Venice Commission is vital to limit the influence of oligarchs and prevent it from being used against political opponents. The Venice Commission’s opinion on the law is pending. In parallel, Ukraine has elaborated several measures to implement this law (regulations on the oligarch register, screening of media investors) and to improve other legislation (antimonopoly, financing of political parties, etc.). 
6. Harmonisation of audio-visual legislation In December 2022, Ukraine adopted a media law that aligns its media market regulation with the EU audio-visual media services directive and empowers Ukraine’s independent media regulator in line with feedback and amendments from the European Commission and Council of Europe. However, amendments to the law on TV advertisements still need to be made. 
7. Legislation on national minorities In December 2022, Ukraine adopted a new law on national minorities (communities), providing the legal framework for protecting the rights of national minorities based on the recommendations of the Council of Europe. However, the Venice Commission’s opinion on the law’s implementation is pending. Additionally, the state programme ‘Unity in diversity’ until 2032 must be adopted and consider the views and expectations of representatives of minorities.

As acknowledged at the 3 February EU-Ukraine summit, good progress has been made. Ukrainian civil society, an important and trusted ‘watchdog,’ also monitors the reform process.

Kyiv must demonstrate that the quality of reform and the necessary political will to implement the reform are no less important than speed. In addition, anti-corruption and judicial reform are vital for attracting international finance for Ukraine’s reconstruction. This will put Kyiv on the right track for upcoming evaluations.

Three crucial milestones are ahead: the European Commission’s preliminary assessment of progress (May/June), the 2023 Enlargement Package, providing a comprehensive evaluation of Ukraine’s readiness (October), and the EU Council’s conclusions on the enlargement process (December 2023).

The spring assessment is especially key as it will help identify implementation gaps. However, the assessment must be as detailed as possible, as some conditions are formulated rather vaguely, leaving space for different interpretations. To avoid this, the Commission must supply Ukraine with clear benchmarks. In addition, Kyiv should seek support and feedback from EU member states, given the fact they make the final decision on opening accession talks. 

If Ukraine meets the conditions, the EU should open the accession negotiation process in December. However, in parallel, the EU will need to rejuvenate and reform its enlargement policy. The war should act as an accelerator of this process.

Reinvigorating enlargement

A credible enlargement policy is a strategic investment in Europe’s security and prosperity. Enlargement has been one of the EU’s most successful policies, but the current enlargement template is not fit for purpose. The EU must re-energise its enlargement process to retain geostrategic relevance and credibility. This must start with a clear roadmap and timeline for Ukraine and other candidates. Enlargement methodology also needs a rejig, with more meaningful incentives to spur reform. The concept of gradual integration, for example, in the single market and the energy and green transitions, must progress. It is also time to move the opening and closing of negotiation chapters to QMV, as unanimity does not work and has been a major cause of problems and blockages in the Western Balkans. Representatives of candidate countries should also be allowed to participate in and observe the work of the EU institutions. At the same time, the Commission must emphasise that there is no fast track into the EU. Accession is a merit-based process with no exceptions.

A geopolitical imperative

Russia’s war in Ukraine shattered the illusion that security and stability in Europe come for free. If the EU wants to become the geopolitical actor it aspires to be, it must be bold and decisive. Following through on Ukraine is crucial. Failing to do so would be an act of self-sabotage, damaging the EU’s image and credibility in Ukraine and undermining European security. It also risks having negative repercussions in the Western Balkans, further encouraging malign foreign interference from Russia and other third powers. The EU must demonstrate its geopolitical acumen to end grey zones in Europe for good.

Amanda Paul is a Senior Policy Analyst in the Europe in the World programme at the European Policy Centre.

Svitlana Taran is a Ukrainian Research Fellow in the Europe in the World programme at the European Policy Centre.

The support the European Policy Centre receives for its ongoing operations, or specifically for its publications, does not constitute an endorsement of their contents, which reflect the views of the authors only. Supporters and partners cannot be held responsible for any use that may be made of the information contained therein.

This commentary is part of the Ukraine's European Future project.

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