There’s No Easy Answer for EU and Ukraine
Ukraine’s situation is sui generis. No other country has ever applied for European Union membership from a comparable situation. Harsh as it sounds, the E.U. is not a charity organization. Enlargement is essentially a businesslike decision, not a humanitarian or merit-based consideration. Solidarity is a whole different ball game.
The E.U. is an economic powerhouse with global ambitions. It has been successfully governing the world’s biggest single market evolved in the last 70 years due to its members’ harmonized and value-based cooperation. No wonder the member states’ responses are diverse on granting candidacy to Ukraine, which is a symbolic and moral imperative, compared to the membership itself, which has geopolitical, legal, policy, and financial implications. Ukraine’s candidacy is a sign of political intent and solidarity with the people of Ukraine, but it will neither end the war nor deter Russia from any further land grabs.
Ukraine’s aspirations to be an E.U. member state are deeply rooted. In 2013 and 2014 President Viktor Yanukovych’s refusal to sign an “association agreement” with the E.U. partly prompted the Maidan protests. Five years later, that ambition was incorporated into Ukraine’s constitution. Four days after the Russian invasion started, President Volodymyr Zelensky requested immediate E.U. admission under a “new special procedure.”
Such a procedure doesn’t exist. Make no mistake, Ukraine is already on the fast-track. In mere weeks, Kiev has successfully managed the first few steps for E.U. accession in record time. Steps that usually take months or even years. Four days after the invasion started, Ukraine submitted its application; on April 18, Ukraine provided detailed information for the Commission’s evaluation. Its opinion will be assessed in June at the E.U. summit. The exact same path took three years for Bosnia Herzegovina. For Finland, Austria, and Sweden to become member states from scratch also took about three years. The E.U. is a diverse community. No two countries have the same condition, history, language, or geographic and national interests.
Although Ukrainians share common values with the West, their fast-track E.U. accession raises concerns both for the E.U. and the U.S. Playing coy about the candidacy and membership status doesn’t help. For each pro statement, there is a contra. The E.U.’s executive head, Ursula von der Leyen has said, “We want them in”, “Ukraine belongs to the European family,” and added accession “will take time” and “hard to say” when it actually happens. President Emmanuel Macron of France made it clear recently that the process will “take several years, probably several decades” to meet E.U. standards. Rules are rules. Ukraine is no exemption. The E.U.’s two-faced rhetorical approach supports democratic values on one side and reality on the other side.
Reality is very complex. The special admission solution would mean ad hoc legislation that is alien to European law. Establishing a new case-by-case procedure would require political consent from all member states. The E.U.27 was not unanimous regarding Ukraine’s candidacy in March. It was heavily opposed by some Western European countries like the Netherlands, while Central and Eastern European countries overwhelmingly supported it. Yet it wouldn’t be an innovation to employ enlargement as a political tool to make structural changes in the E.U. Spain and Portugal were success stories, but Cyprus has proved the E.U.’s leniency wrong. Despite the embedded corruption issues and a fully completed peace agreement, Cyprus’s membership was ratified in the confident belief that it would be a spark. Instead, the will for difficult reforms and compromises quickly vanished.
Joining the E.U. is not the same as joining NATO. Adopting and implementing the E.U.’s legislative corpus, the acquis, from how to label clothing to procurement law, has to surmount domestic political and policy effects. As an E.U.-member, Ukraine would be entitled to the benefits of the “mutual assistance clause” that obligates other member states to provide “aid and assistance by all the means in their power” in case of armed aggression. It is different from NATO’s “collective defense clause,” but indeed raises questions about the E.U.’s defensive capabilities. It is not groundless to say military-like support could further escalate the conflict, and this time the E.U. could be targeted. Some fear the same possibility even in the case of Ukraine’s candidacy status.
Since Ukraine is a relatively big country, including in its population, it would immediately impact the E.U.’s institutional balance in voting-power in the Council and the number of members in the European Parliament. In addition, if Ukraine’s accession happens in brotherhood with their Polish engagement announced recently, the together some 80 million Poles-Ukrainians would become a strong alliance that distorts the current French-German dominance in the E.U.
Another often overlooked aspect of the question is the E.U.’s capacity to absorb a new member at all. Without internal reforms, consensus-based decision-making would become increasingly difficult. On the other hand, moving beyond unanimity would strip the E.U. of one of its key principles and push it to a federal superstate with a French-German dominance. Paradoxically, the economic effects of the war will further complicate Ukraine’s accession.
While a fast-track path to membership is a gripping proposition in the midst of war, sticking with the tried and tested processes and conditionality is imperative. The E.U. should not lower its standards. Ukraine’s speedy accession would ignore the highly emphasized rule of law criteria. Arbitrary and flexible treaty application, the practice of “justified flexibility,” would set a bad example. The role of law is not to serve arbitrary political aims but to maintain its own order.
What seems to be a more realistic approach is not to construct a new “second-tier” E.U. membership phase but to assess the possibility of creative application of the existing framework. Strengthen both the Eastern Partnership and the E.U.-Ukraine association agreement, along with providing Ukraine candidacy. These better serve the strategic purposes while not shocking the system as compared to the multispeed E.U., proposed by the French president, which would institutionalize discrimination by creating first, second, and third classes of member states and citizens.
Mónika Palotai is a visiting research fellow at the Hudson Institute, who specializes in E.U. and international law.
Lilla Nóra Kiss, Ph.D., is a visiting scholar at the Antonin Scalia Law School, George Mason University, who specializes in E.U. and international law.