There are no easy answers for the EU and Ukraine
A two-sided membership policy will not save Ukraine, nor will it serve the interests of the European Union.
The situation in Ukraine is sui generis. No other country has ever applied for membership of the European Union in a comparable situation. As harsh as it may sound, the EU is not a charity. Enlargement is primarily a business decision, not a humanitarian or merit-based consideration. Solidarity is a whole different ball game.
The EU is an economic power with global ambitions. He successfully led the world’s largest single market which has grown over the past 70 years through the harmonized and values-based cooperation of its members. No wonder member states’ responses are diverse on granting candidacy to Ukraine, which is a symbolic and moral imperative, compared to membership itself, which has geopolitical, legal, political and financial implications. Ukraine’s candidacy is a sign of political intent and solidarity with the Ukrainian people, but it will not end the war or deter Russia from further land seizures.
Ukraine’s aspirations to become an EU member state are deeply rooted. In 2013 and 2014, President Viktor Yanukovych’s refusal to sign an “association agreement” with the EU partly prompted the Maidan protests. Five years later, this ambition was incorporated into the Ukrainian constitution. Four days after the start of the Russian invasion, President Volodymyr Zelensky requested immediate EU membership under a “new special procedure”.
Such a procedure does not exist. Make no mistake, Ukraine is already on the fast track. Within weeks, Kyiv managed to complete the first steps towards EU membership in record time. Steps that usually take months or even years. Four days after the start of the invasion, Ukraine submitted its application; April 18, Ukraine provided detailed information for the Commission’s assessment. His opinion will be assessed in June at the EU summit. The same path took exactly three years for Bosnia and Herzegovina. It also took around three years for Finland, Austria and Sweden to become member states from scratch. The EU is a diverse community. No two countries have the same condition, the same history, the same language or the same geographical and national interests.
Although Ukrainians share common values with the West, their accelerated EU membership raises concerns for both the EU and the US Playing coy about application and membership doesn’t help. For every pro statement, there is a cons. EU Chief Executive Ursula von der Leyen said:We want them in”, “Ukraine belongs to Europe family,” and added that joining will “take time” and “hard to say” when it will actually happen. President Emanuel Macron of France clarified recently that the process “will take several years, probably several decades” to meet EU standards. The rules are the rules. Ukraine is no exception. The EU’s two-sided rhetorical approach supports democratic values on the one hand and reality on the other.
The reality is very complex. The special admission solution would mean ad hoc legislation which is foreign to European law. The establishment of a new procedure on a case-by-case basis would require the political consent of all Member States. The EU27 was not unanimous on Ukraine’s candidacy in March. It was strongly opposed by some Western European countries like the Netherlandswhile the countries of central and eastern Europe supported this. Yet it would not be an innovation to use enlargement as a political tool to bring about structural changes in the EU. Spain and Portugal were success stories, but Cyprus proved EU leniency wrong. Despite embedded corruption issues and a fully concluded peace agreement, Cyprus’ membership was ratified in the belief that it would be a spark. Instead, the will for tough reforms and compromise quickly faded.
Joining the EU is not the same as joining NATO. Adopting and implementing the body of EU law, the acquired, from how to label clothes to government procurement legislation, must overcome national policy and political effects. As a member of the EU, Ukraine would be entitled to the benefits of the ‘mutual assistance clause’ which obliges other member states to provide ‘aid and assistance by all means within their power’ in the event of aggression army. It is different from NATO’s “collective defense clause”, but does raise questions about the EU’s defensive capabilities. It is not unfounded to say that military-style support could further escalate the conflict, and this time the EU could be targeted. Some fear the same possibility even in the case of Ukraine’s candidate status.
As Ukraine is a relatively large country, including in terms of population, this would have an immediate impact on the institutional balance of the EU in terms of voting power in the Council and number of members in the European Parliament. Moreover, if the accession of Ukraine is done in brotherhood with their Polish commitment announcement recently, the roughly 80 million Polish-Ukrainians together would become a strong alliance that distorts the current Franco-German dominance in the EU
Another often overlooked aspect of the issue is the ability of the EU to absorb a new member. Without internal reforms, decision-making by consensus would become increasingly difficult. On the other hand, going beyond unanimity would deprive the EU of one of its key principles and push it towards a Franco-German dominated federal superstate. Paradoxically, the economic effects of the war will further complicate Ukraine’s accession.
While a fast track to membership is an exciting proposition in the midst of war, sticking to proven processes and conditionality is imperative. The EU should not lower its standards. Ukraine’s early accession would disregard the rule of law criteria which have been given particular attention. The arbitrary and flexible application of treaties, the practice of “justified flexibility”, would be a bad example. The role of law is not to serve arbitrary political ends but to maintain its own order.
What seems to be a more realistic approach is not to build a new “second tier” phase of EU membership, but to assess the possibility of a creative application of the existing framework. Strengthen both the Eastern Partnership and the EU-Ukraine Association Agreement, as well as Ukraine’s application. These best sserve the strategic objectives without shocking the system in relation to the multispeed EU, proposed by the French president, which would institutionalize discrimination by creating first, second and third classes of member states and citizens.
Monika Palotai is a visiting scholar at the Hudson Institute, specializing in European and international law.
Lilla Nóra Kissdoctorate,is a visiting scholar at the Antonin Scalia Law School, George Mason University, specializing in European and international law.