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The EU Summit (15th December) & Ukraine

December 14, 2016

The 15th December is the date of the last EU Summit (of European leaders) in 2016.

The agenda is going to be full and no doubt the meeting will be prickly affair.

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The agenda sees Ukraine as the lunchtime topic for discussion – and perhaps that is because Ukraine is probably the agenda item least likely to cause indigestion compared to all other items up for discussion.

The day covers (in no particular order) Syria, Russia, sanctions, Brexit, Ukraine, Mr Trump and refugees/migration (and by extension Turkey).  Greek issues apparently do not appear this time – there are only so many hours in a day.

With regard to Ukraine the obvious agenda issues relate to 27 of 28 Member States and the European Parliament ratifying the Association Agreement (and DCFTA) with only The Netherlands outstanding, that and the issue to be finally put to bed sometime in February/March 2017 relating to Visa-free tourism for Ukrainians (on the assumption the European Parliament votes appropriately regarding the “Visa-free suspension mechanism” issue also on 15th December).

The issue with the Dutch Association Agreement is one of optics for the domestic Dutch constituency.  In order for the Dutch to ratify the agreement and finally close the bureaucratic process they insist upon official recognition that in ratifying the EU – Ukraine Association Agreement, it is not a pathway toward EU accession for Ukraine.  Further, they require official recognition that it in no way affords EU guarantees regarding collective security guarantees or obligations to military aid.  Lastly that it does not provide an entitlement (obligation) to financially support Ukraine.

It may appear politically ugly considering that only The Netherlands remains to ratify the agreement and now seeks such official understanding to pacify its domestic electorate, but to be quite clear the EU-Ukraine Association Agreement (and DCFTA) offers none of these entitlements/EU obligations toward Ukraine anyway.

Nowhere does the Association Agreement infer, let alone state, that the Association Agreement is a stepping stone toward EU accession.  The clauses regarding defence and security offer no expectations of collective security or obligation to military assistance.  It has always been abundantly clear that any and all financial aid to Ukraine comes with conditionality relating to reform.

There is only one way for Ukraine to formally accede to the EU, and that is to first formally apply, and then go through the Acquis Communautaire 31 (minimum) – 35 (the maximum thus far) chapters therein.

There is no denying that if Ukraine complies with the Association Agreement fully and in its entirety (at best a 10 year process, probably longer at the speed Ukraine is proceeding) that for almost all Acquis chapters it will have traveled perhaps 80% – 85% of that journey in each and every chapter.  However there will be few, if any, where it will have traveled the full distance whereby that Aquis chapter will be then closed.  Ergo there would be a few more years thereafter to complete that process if embarked upon at all.

Indeed perhaps there is a need to better conceptualise the legality and spirit of both the Association Agreement and the Acquis Communautaire in fundamental terms.

The Association Agreement exists for Ukraine (at its own speed – despite some timelines in specific spheres within) to bring European values/governance/processes/standards to Ukraine from “Europe”.  Thus the Association Agreement brings a notional/perceived “Europe” to Ukraine – it does not take Ukraine to the EU.

The Acquis Communautaire is a trial undertaken by nations seeking to accede to the EU.  It is the (only) process that would therefore take Ukraine to the EU.

Thus the AA (and DCFTA) brings “Europe” to Ukraine.  The Acquis takes Ukraine to the EU.

Therefore, as politically ugly and difficult to digest for some the Dutch requirements may be, they actually make no difference to the legalities of the Association Agreement, nor the spirit in which it was negotiated and offered.

Ergo, it can be expected, despite the ugly optics, that the Dutch will get the official recognition that they seek even though some Member States will cringe whilst agreeing.  To get the Association Agreement over the finish line by officially acknowledging what is not contained in the Association Agreement will ultimately be a price paid.

Clearly from the agenda items, the Ukrainian issue is the least likely to put a Member State leader off their luncheon.  For good measure the Brexit issues are to be discussed at evening dinner – after UK Prime Minister Ms May has left the Summit and the building.

In fact Ukraine for once (in the context of AA ratification and the possible mention of Visa-free), may prove to be one of the easiest agenda items.

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