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Staying relevant – EU partners in the Ukrainian GTS?

October 11, 2017

With alleged Kremlin favouring shenanigans occurring within the higher echelons of the Council of Europe, and NABU arresting Deputy Defence Minister Ihor Pavlovsky (and others) for embezzling UAH 149 million ($5 million) of defence budget funding (and thus deserving of far more than being charged simply with embezzlement during a time of war), or the crashing of Facebook across Ukraine (and beyond),  it is perhaps understandable if a reader missed the statement of EU Ambassador Hugues Mingarelli relating to the Ukrainian Gas Transport System (GTS).

There are a few things to like about Hugues Mingarelli.

First and foremost he is very visible in the media – unlike his predecessor.  Secondly he is blunt in his public diplomacy.

Ambassador Mingarelli made another blunt statement on 11th October.  He stated “If we want to create conditions for Ukraine to remain a transit country for gas, it is necessary to involve European companies in the management.”

Very clear – but what was his actual message?  It is, after all, not what is said, but what is heard and understood that matters.

Is this a case of the EU trying to obtain some control over the Ukrainian GTS perhaps – but if so, to what end?

In gaining some control over it, there is a sense of having to do so as part of anti-corruption initiatives?

To be sure Naftogaz has made significant progress with regard to transparency and profitability, however progress with regard to ratified Ukrainian obligations to the EU 3rd Energy Package – specifically the unbundling of Naftogaz – is not progressing as swiftly as it might (to be very charitable).  There are issues regarding appointments, glacial SBU background checks for potential foreign appointees, and a blatant entrenchment of vested interests throwing spokes into the unbundling wheels etc.  (An entirely predictable circumstance when “energy” has always been the trough from which the oligarchy has fed well since independence.)

Further there is an ever-increasing overt political interference – which is likely to be the tip of an ever-increasing covert political interference iceberg.

Perhaps the EU Ambassador is making a less than subtle hint that much needed FDI into the Ukrainian GTS comes with EU participation and oversight/involvement with that investment?  However he is talking about “European companies” and not EU institutions.  As European energy companies are hardly an effective instrument in progressing or defending EU Directives and Regulations – as the current issues surrounding the Nord Stream II consortium illustrate – this is perhaps not what he is driving at either.

Maybe he believes the Ukrainian GTS will remain more relevant if “European companies” are forced to defend their interests with their Member State governments and beyond – and by extension defend Ukrainian interests and the usage of the GTS?  Competing interests in both energy supply routes but also via effective corporate lobbying?

His statement therefore has perhaps as much to do with the EU as it has to do with Ukraine?  This is perhaps the only way he can see to effectively defend the EU 3rd Energy Package (and Ukraine) from a two pronged North and South Kremlin onslaught?  Clearly a Kremlin NS I plus NS II, and Turk Stream, may well mean the end of the EU’s 3rd Energy Package – and perhaps the EU energy market as well.

One look at a map, when drawing an arrow from Russia to the EU via NS I and NS II in the north, and Turk Stream in the south, looks like nothing short of an invasion plan – irrespective of circumventing Ukraine.

European demand will be ever present and European gas production is declining – and will continue to do so.

Nevertheless, NS II in particular is clearly a political project from The Kremlin perspective.  It makes no economic sense for Russia – particularly during a time when its economy is under strain and NS I is currently working 25% below capacity.  Neither is the Ukrainian GTS transporting Russian gas working at anything like capacity.

To be sure, Germany is not about to scupper the NS II project itself.  Those Germans that would be happy to see the project fail will be counting – perhaps wrongly considering recent EU legal opinion – upon the European Commission killing the project.  There are still many within Germany policy circles that whilst content to continue to support and lobby for maintaining sanctions upon The Kremlin, are yet also keen to offer the hand of engagement through projects like NS II.  There are of course others that are interested in Germany becoming a major energy hub for the EU – German interests.  Yet others are simply Kremlin apologists and appeasers.

Many of those EU Member States against NS II are not necessarily against it for the same reasons.

Indeed each Member State has its own interests, and their support – or not – for NS II relate primarily to national and not EU interests.  For example Poland would like to position itself as an energy hub – which will be almost impossible if neighbouring Germany becomes one.  Others like Romania are against NS II simply because of the way it views it Russian energy politics/influence as an extension of Russian nefariousness.  Romania uses almost zero Russian gas.  Romania will never trust Russia.  Bulgaria almost exclusively uses Russian gas.  Hungary would prefer to connect to the Turk Stream rather than a German hub denying the EU (and Germany) a further lever over Mr Orban’s policies.

There are also issues of infrastructure and interconnectors (or a lack of them) across the EU energy systems.  This may lead to issues of physical access for some nations if the Ukrainian GTS (more or less) becomes redundant.  There are market expectations too within the EU energy markets.

And so it goes on when looking at the drivers for each Member State concerning NS II.  The final outcome is far from certain – as are the repercussions regardless of what outcome arrives.

While those atop the whole (EU) may have concerns in deepening dealings with a nation that is clearly hostile to it, naturally the composite parts (Member States) may to varying degrees be less hostile.  The issue is that The Kremlin has no problem with what it views as “old” or “traditional” Europe – its problem is with “political Europe” which includes those lucky enough to have escaped its grasp and found sanctuary elsewhere.

Where does this leave the Ukrainian GTS, and why is Ambassador Mingarelli clearly raising warning flags for the Ukrainian leadership now?  Does he perhaps sense that NS II now has much more chance of becoming a reality than a month ago?  (He would not be alone in that perception.)

To be very blunt, if, or perhaps when Russia stops delivering gas to Europe via the Ukrainian GTS, the loss of the $2 billion annual transit fee will not mean anything like the end of Ukraine economically.  Neither will it mean the end of Ukraine as a political animal either.  It may even mean that Ukraine will buy its gas yet cheaper from Europe than it does now, having long since buying Russian gas directly from Russia.

Perhaps the circumventing of Ukraine would bring about the worst possible outcome for the nation – the abrupt end to reforming its gas sector and the continuation of unchallenged vested interests within.  Perhaps it is this possible future that drives the comments of Hugues Mingarelli?  “European companies” involved in the GTS would still insist upon domestic gas market reform, and their governments would naturally support their interests, thus keeping Ukraine relevant in the energy arena for Europe – even if (eventually) circumvented by Russia.

It maybe that any, or all, or any combination of the above is what Ambassador Mingarelli is saying when he said “If we want to create conditions for Ukraine to remain a transit country for gas, it is necessary to involve European companies in the management.”  As already stated, it’s not what is said, but what is heard that matters – and from that comment there will be different interpretations.

Perhaps what matters is that, regardless of interpretation, it was indeed heard.

(One further Russia related comment, aside from the immediate negatives of economic cost relating to building NS II, the long term economic view, if and when it is built, perhaps does not bode well either – for it further embeds reliance upon resource extraction into the economy and does nothing toward reforming or diversifying the Russian economy.)

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The defendant the court (deliberately) forgot – Odessa

October 10, 2017

On 17th September an entry appeared relating to a tragic fire at a City owned and run establishment that resulted in the deaths of children.

The culprit – City Hall corruption.

Nevertheless, whilst hiding behind “collective accountability” and therefore no “individual responsibility” may have worked in years past when it came to avoiding the law, Odessa has become somewhat more overtly political in recent years.

There are now expectations of individuals being held culpable for their actions – or inaction.  Though these are not always met, or are often partially met in order to sail through the initial storm of public outrage to then be quietly forgotten or sabotaged when the public mood calms, gone is the initial apathy and the willingness to suffer collective memory loss when the corrupt and feckless local leadership attempt to “move on”.

Thus, as stated in the above linked entry – “Having seemingly spent most of August in a Facebook and Instagram “man-love fest” with Sergei Kivalov, that may now prove to have been time well spent – if the Mayor may require the assistance of all those judges that Mr Kivalov has in his pocket” – it seems likely that  such assistance will be required in this particular matter.

(For the record, the Trukhanov-Kivalov Instagram and Facebook “man-love fest” continues.  A combination perhaps of pre-election electioneering, signs that The Bankova is “renegotiating” its “understanding” with Mayor Trukhanov and something akin to a corrupt fire-sale of City assets and land deals occurring at break-neck speed, and perhaps also overt support for Trukhanov by Kivalov as the Odessa underworld goes through a state of flux.)

The entry also stated – “Ergo, Mayor Trukhanov, being officially in charge of this disgrace and numerous failings from many system and process angles, together with his Deputy Zinaida Tsvirinko (whose responsibilities seem most aligned to this sad incident) not only should consider their positions, but should also be placed under investigation for running something close to a criminal (and/or criminally negligent) organisation.”

Needless to say the Mayor will not resign – but Deputy Mayor Zinaida Tsvirinko is now former Deputy Mayor Zinaida Tsirinko, and is indeed now a defendant in this tragic case (charged with official negligence).

At least she is a defendant subject to sabotaging the case to her benefit.

A reader will perhaps not be surprised to discover that the notoriously corrupt and politically controlled Primorksy District Court in Odessa appears to have already begun that process of judicial sabotage.

On 5th October the court was due to consider the prosecutor’s request to place Ms Tsvirinko under house arrest during the hours of darkness.  The nominated judge however, was apparently busy in a meeting relating to another case.  The automatic system of appointing another judge was not engaged, thus the prosecutor’s application was not heard.

Article 186 of the Criminal Procedural Code unambiguously states that within 72 hours of a prosecutor’s submission to curb the liberty of a defendant, a judge must select a measure of restraint.

As of the date of writing, some 120 hours have passed – far beyond the statutory 72 proscribed by law – with the clock still ticking.

Primorsky District Court therefore is in clear violation of the Criminal Procedural Code, and the judiciary within are obviously not keen to deal with the prosecutor’s request relating to the former Deputy Mayor.

Obviously any forthcoming form of court imposed restraint upon the liberty of Ms Tsvirinko is likely to be deemed unlawful when appealed – if the matter is heard at all.

It remains to be seen if the Prosecutor’s Office of Odessa will submit a second petition – thus far it hasn’t – and whether that petition would meet the same judicial stonewalling at Primorsky District Court.

Rumour also abounds that attempts (read coercion upon the Odessa PGO) to sabotage the case against her continue, with the “state of her health” being used to try and drop the charge.

Strangely, “the state of her health” did not affect her ability to act as Deputy Mayor prior to the tragic fire caused by the ingrained corruption of Mayor Trukhanov’s City Hall.

Further, whatever the “state of her health”, she remains far healthier than the dead children that are the victims of City Hall corruption.

Lastly, whatever the “state of her health”, that should not prevent justice being seen to be done for the victims, their families, and the local constituency more broadly.  It may be that the “state of her health” may weigh in any judicial sentencing, but it should not prevent the case being heard and arriving at a verdict.

It remains to be seen whether the sabotaging of the case against her proves to be entirely successful – but it has clearly started.

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Black Sea bureaucracy and rhetoric

October 9, 2017

The past few days have seen the Black Sea, and specifically the stability and security thereof, feature.

The NATO Parliamentary Assembly releasing Resolution 437 to wit – after a gathering in Bucharest the proceedings of which Romania will no doubt be pleased.

Whether or not said Resolution is fully deserving of the enthusiasm for it that spewed forth from Irina Friz is perhaps debatable, however there was naturally a need to rigorously promote it among the domestic constituency.

Indeed, positively framed it should be.

There are no negatives within, no unnecessarily barbed, prickly nor uncomfortable statements regarding Ukraine.  A more positive Resolution from a Ukrainian perspective, within the parameters of political realism, the Resolution text probably could not reach.

How it is interpreted and understood will perhaps require a more sober and measured response than may initially come.

As an aside, for those policymakers in Kyiv that read the blog – perhaps the waving of port fees for NATO nation naval ships docking at Odessa Port might be considered a reasonable gesture?

Perhaps a little more surprising, (and worth political points x 2), was the announcement that the 2020 NATO Parliamentary Assembly will be held in Kyiv.

With pre-election electioneering underway, political points are scored by the current authorities – and whomever emerges victorious from the 2019 Presidential and Verkhovna Rada elections, it will be they who will be hosting the NATO PA the following year and scoring political points too.

For the Ukrainian military and military industrial complex, considering President Poroshenko’s repeatedly stated aim of meeting NATO standards by 2020, minds will remain focused on that goal.  Whomever leads Ukraine in 2020 will want something to show when hosting.

Quite how many of the innumerable NATO standards will have been met by 2020 remains to be seen, but progress there clearly has been and that will now certainly continue – regardless of reform and policy successes and failures elsewhere.

Indeed it is probably the civilian side to NATO standards (and expectations) that will be far less progressed than the military itself by 2020.  In short the military structure, equipment and interoperability is perhaps more achievable by 2020 than that of the civil requirements.

Ukraine would perhaps be wise to view Article 3 of the Washington Treaty in its widest possible terms relating to “resistance” – namely reading it not only as military capabilities, but social, political and economic too.

Ukrainians certainly managed to accomplish/meet those requirements in the immediate aftermath of the Revolution of Dignity and the subsequent Kremlin actions despite the absence, or perhaps because of the absence of an effective government.  But can it now do it as effectively and with such energy and commitment with a government perhaps being in the way?

To conclude a successful few Black Sea days, the visit of Turkish President Recep Erdogan to Kyiv on 9th October brought with it the boilerplate Turkish commentary relating to Crimea –  “We did not recognize and do not recognize the illegal annexation of the Crimea.”  

All in all, a successful few days of Black Sea bureaucracy and rhetoric for Ukraine.  As always the challenge is turning bureaucratic rhetoric into tangible results for all involved in the Resolution.

 

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Reintegrating Donbas – Draft Bill

October 3, 2017

There is very little point into going too deeply into the nuance and devils in the detail of the Draft Bill submitted relating to the de-occupation and reintegration of the occupied Donbas. – “On Certain Aspects of State Policy Regarding the Restoration of Ukraine’s Sovereignty in the Temporarily Occupied Territory of Donetsk and Luhansk Regions of Ukraine.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There is little point in exploring all the Articles and Clauses as the Bill has yet to be considered by the relevant Verhovna Rada committees and “Minsk Platforms”.

If negotiating those hurdles without suggested amendment, there is then the small matter of getting the Draft Bill voted into law without serious and/or numerous amendments within the Verkhovna Rada voting chamber.

Any and all such amendments may yet fundamentally change the interpretation and understanding of the Draft Law.  An almost guaranteed issue of contention will be the transition period, the management thereof, and the obvious corruption opportunities presented – which is thus better left until the final legal text is known before giving it a good mulling over.

There are a few things however that are unlikely to change – such as Article 1 that formally identifies the temporarily occupied areas in the Donbas as exactly that – occupied territories.

It is not before time that the legislative misnomer label that be ATO is removed from domestic statute, and the temporarily occupied territories label be applied.

The Russian Federation is enshrined in this statute as the aggressor and occupier, temporarily controlling the occupied Donbas territories.  A formal definition of “illegal armed formations” within the occupied territory appears.

The word “war” is entirely absent – perhaps wisely in such statute.

There is much mention, albeit without detailing tools and mechanisms, relating to humanitarian issues.  The question is perhaps how legally broad, and woolly, and flexible, should this arena be?

The Draft Bill also mentions, and thus formalises into Ukrainian statute for the first time, the Minsk process.

Ergo a document signed by Messrs Kuchma, Zakharchenko and Plotnitsky of dubious legal worth (regardless of any perceived political weight) is therefore recognised and thus legitimised within domestic statute – something Ukraine had otherwise avoided.

If this remains within the Draft Bill and becomes law, Ukraine will have to be absolutely certain that its, and not The Kremlin’s, interpretation of Minsk is that which drives the process.  It would be incredulous folly to codify Minsk into domestic statute and then have to work by The Kremlin interpretation of it.

It is to be hoped that this inclusion is based upon something more solid than “western assurances” that The Kremlin interpretation will not win out.

That said, a reader must first believe that The Kremlin has any intention of allowing Minsk to be implemented on any terms other than its own – if there is any intention to implement it whatsoever.

The Darft Bill apparently reaches the Verkhovna Rada Committees and “Minsk Platform” on 5th October.  The resulting output will be interesting.

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EuroMaidan/Revolution of Dignity Investigations – Or not

October 2, 2017

With the fourth anniversary of EuroMaidan/Revolution of Dignity peering over the horizon, investigations, prosecutions (and very few court cases) are on-going.

2nd October witnessed Pechersk District Court place Sergey Pogotov under house arrest relating to his alleged involvement in the events of 2013/14.  Mr Pogotov was then First Deputy Head of the Department for Public Security within the Ministry of Interior.

He is now Head of Security at Naftogaz Ukraine – such is the web of connections among the Ukrainian elite and their associated pyramids of power and patriarchy, and to be entirely blunt his current position is not a role that was allocated by anything short of nepotism.

Mr Pogotov, according to Sergei Gorbatyuk, Head of the Department of Special Investigations of the Prosecutor General’s Office of Ukraine, during the events of 2014 assumed the scholarly role of writing reports on Russian grenades, that were to then be used by law enforcement against protesters.

Prosecutor Gorbatyuk however, took the associated press attention to this Pechersk Court decision to raise further issues – and clear inferences.

He also raised the investigations into Vladimir Grinyak, Anatoly Seredinsky and Igor Babich.

Mr Grinyak is the former Deputy Head of the Public Security Department of the MIA – the former boss of Mr Pogotov.  Mr Grinyak is currently leading the Public Security Directorate of the National Guard.

Mr Seredinsky, also an immediate subordinate of Mr Grinyak within the Public Security Department in 2013/14 , and peer of Mr Popotov, is now Deputy Head of the .Department of Preventive Activities of the National Police.

Mr Babich is currently Head of the .Department of Preventive Activities of the National Police, and the immediate boss of Mr Seredinsky.  During 2013/14 he was Chief Inspector of the same branch of the MIA Public Security Department as Mr Seredinsky – all of whom were subordinate to Mr Grinyak.

There are further allegations of forgery during 2016 to correct administrative documentation for the period of the 2013/14 investigation.

Thus, following alleged lustration, and on-going criminal investigations into the violence, murders and possible collusion with Russia and/or treason and forgery, four senior officials of 2013/14 specifically charged with public security within the Ministry of Interior – in short a department clearly involved in those events – are all working for Arsen Avakov within and under his ministerial umbrella – with the exception of Mr Popotov who somebody placed at Naftogaz as Head of Security.

The Interior Minister that employs these men is certainly aware of their history and their duties during the period of EuroMaidan/Revolution of Dignity.  Further Minister Avakov is also aware of the Prosecutor’s Office investigations into them – to the point where public comment diminishing (and almost rubbishing) the prosecutor’s investigation has been apparently made.

Indeed those comments were also mentioned by the Head of the Department of Special Investigations at the press conference – “The speeches of the leaders of the National Police and the Ministry of Internal Affairs on the lack of evidence, this can be regarded as pressure on the court, that preventive measures were not elected.”

Thus Prosecutor Gorbatyuk clearly infers that not only the Ministry of Internal Affairs (and the National Police therein), but also Minister Avakov himself, are deliberately interfering in the investigation.

He went yet further, stating that the evidence gathered has very little coming from the Interior Ministry personnel of the time, inferring suppression of evidence and witness intimidation/coercion – “There is a risk that the leadership of the National Police and Interior Ministry will want to influence.  We have a minimum of testimony from law enforcement.  We must take measures so that no pressure is exerted on them.”

This, he perhaps charitably suggested, was down to “the area of ​​personal sympathy and corporatism.”

A very diplomatic way of saying that loyalty to Arsen Avakov matters far more than ability or past crimes within his power vertical constructed throughout all subordinate parts of the Ministry of Interior.

If this was not enough, the Head of the Department of Special Investigations went on to infer political sabotage relating to the fact that the State Bureau of Investigation, a body created by law on 12th November 2015 and charged with investigations of senior officials and serious crimes that fall outside the remit of NABU, has still to be created.

As the events of 2013/14 clearly are serious crimes, Mr Gorbatyuk raised the possibility that no further investigation can occur when such crimes have been statutorily been given the remit of a State Bureau of Investigation that does not yet exist, despite 2 years ago a legislative framework was created for it.

Having only just repeatedly mentioned Arsen Avakov as inferred meddler-in-chief in his investigations, and with Minister Avaokov also being the biggest name and running the only “power ministry” of the minority coalition parties, a reader may perceive another inference by association, of political sabotage by Mr Avakov and the People’s Front in preventing its creation.

That said, the Prosecutor’s Office under Yuri Lutsenko is politically controlled.  Mr Lutsenko was, is, and will remain a politician, and is loyal to President Poroshenko (at least until the next election anyway).

Thus the Prosecutor’s Office, like the judiciary and the SBU, are, to be charitable, “accommodating of The Bankova’s influence”.  To be less charitable they are instruments of the Presidential Administration when there is a requirement for certain outcomes.  With electioneering underway, no doubt certain outcomes will soon be required.

Thus is the question perhaps not only one of the Head of the Department of Special Investigations of the Prosecutor General’s Office publicly telling the National Police, Ministry of Interior and Interior Minister to keep off his grass, but one requiring of a deeper understanding?

Is this something akin to a proxy war between the President and the Interior Minister?

Only recently did Yuri Lutsenko announce searches and investigations into Kyiv Police Chief Vadym Troyan, a close associate of Arsen Avakov.  Ergo, is this the next installment?

A reader may perhaps perceive this as The Bankova beginning to remove the Interior Minister’s loyal and chosen men via misdeeds and crimes in the recent past that have particular public resonance. Investigations opened now, that could coincidentally reach a conclusion much closer to the elections if control over the MIA is deemed necessary, and/or depending upon where Arsen Avakov finds a political home , and on what terms?

However, is this a matter of a more immediate negotiation by proxy between Messrs Poroshenko and Avakov relating to the on-going assimilation talks regarding the minority and majority coalition partners?

If so, does this signal the beginning of a few more public PGO (or other clearly Bankova influenced institutions) verses Interior Ministry spats, that at their core will be a test of presidential will over Avakov’s ability to resist presidential terms?

We will perhaps find out over the next 6 – 9 months.

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Transporting Ukraine to Europe – An urgent parliamentary problem

October 1, 2017

There are enormous political hurdles to overcome when it comes to realising any aspirations of the Ukrainian leadership (and significant portions of the constituency) in taking Ukraine into the European institutions de jure.  Some institutions are easier to enter than others.

Relating to the perceived “Grand Prize” of EU membership, one issue given little attention is the limit upon MEPs in the European Parliament.  That parliament works upon a per capital/MEP basis (with maximums and minimums).  It does not simply enlarge with new members.

Should Ukraine ever join it would be one of the most populous EU nations and thus inherit an entitlement to a large number of MEPs.  By extension that would require some large nations to give up MEP seats.

The outcome therefore is that the centre of European parliamentary gravity would move from Club-Med and Central Europe, to centre that would become Central and Eastern Europe.  Mon Dieu!  

Certainly not an issue that will raise its head in the next decade, and possibly not in the decade that follows either.  Perhaps it will never become an issue for the attraction of the EU may not be what it is perceived to be today by the time both parties deem the timing of entry possible.

Nevertheless, with regard to the European Union, the Association Agreement that is now fully in force, it represents the future decade of ratified obligations by Ukraine relating to close approximations of legislation and regulations to fulfill requirements common across that European political and economic space.

In order to more fully access and leverage greatly that increased access, there is a requirement to more fully meet the legislative and regulatory norms within that space – and rightly so.  To have a club consisting of members that have to abide by certain mutual obligations and then to allow non-members a lower legislative and regulatory bar and yet have significant access would not be tolerated.

(There are, however, far fewer hurdles in bringing “Europe” to Ukraine de facto.  That is as much about national philosophy and psychology as it is about official western facing “Ukraine branding” and increased western/European orientated trade – not a philosophy and psychology subject covered in this entry. )

Ukrainian diplomacy and lobbying has been successful in eeking out additional (albeit temporary) trade concessions beyond the Association Agreement, while the long process of legislative and regulatory approximation and compliance occurs.  In some areas Ukraine has been proactive in preparing the legislative ground prior to the Association Agreement entering into force – in others it has not only been glacial, but appears to have been self-defeating.

An example of such self-defeat looms large upon the domestic legislative and regulatory horizon – despite more than ample preparatory time and no lack of Ukrainian awareness.

Ukraine has managed to increase zero tariff quotas across a fairly important range of agricultural products for the next 3 years with effect from 1st October.   No small diplomatic negotiating success with clear economic benefits.  Indeed an unquestionably positive outcome.  Bravo!

Trade with the EU, let alone Deep and Comprehensive Trade Agreement that came with the ratified Association Agreement, is naturally constrained by meeting EU legislative and regulatory standards.  In meeting them Ukraine opens up an enormous market.  By Ukraine adopting them the EU increases its “soft power” if not by stealth, then by quiet understanding.

There is therefore an alpha-numeric soup of EC Directives and Regulations to comply with in order to maximise the opportunities presented – if only the Verkhovna Rada can manage to pass the domestic legislation and/or create the domestic regulation and regulatory/certificating entities.

Some of this is tedious work – and difficult.  There are not only export concerns to consider – there are the domestic implications too.

Sticking with the theme of agricultural export (simply due to the commencement of increased zero tariff export quotas effective the day of publication) there is the broad area of sanitary and phytosanitary measures almost (but not quite) dealt with by Law 0906 adopted earlier in 2017 relating to animal feeds and the human food chain. ,

It may very well be that Ukrainian agriculture for the most part already meets those requirements, or perhaps even surpasses them – but the required statute and regulatory processes are not sufficiently approximated.  The economy therefore penalised by legislative inaction.

Indeed Ukrainian producers already export to the EU – for those that have voluntarily gone out of their way to meet the EU requirements and obtain EU certification.  Not all can afford to do so.  Yet others do not know how to do so.

Some of the increased zero tariff commodities include food stuffs such as honey (much of the rest consisted of additional zero tariff quotas on grain and grains flours).  Therefore packaging for honey has to reach Regulation 1169/2011 clearly stating nutritional value and more besides.

Currently there is no such legilative requirement within Ukraine, albeit many producers have voluntarily met such EU norms in full or in part.  Draft Laws 2845 and 2845-1 that would address this domestic issue have not seen the voting chamber of the Verkhovna Rada.  They await either merging, or one or the other going to the vote.  Thereafter there would have to be a transition period internally for all domestic producers, notwithstanding a regulatory body to enforce statute.

There are of course other legislative pressures upon the Verkhovna Rada (further frustrated by an inability to either draft quality legislation, or a voting chamber ability to amend a Draft Law to the extent it becomes has significantly warped (often to the detriment of the original Draft’s intent).

Thus the Ukrainian ability, and those of its producers, to maximise the Association Agreement remains neutered to differing degrees across the economic sphere – successes often contingent upon domestic producers voluntarily assuming EU norms and certification.

As frustrating for some as this may be, Ukraine will eventually grapple with the majority of these issues.

There are then logistical issues such as Customs and simplified procedures that have not been addressed either – and which are clearly a hurdle that requires priority attention as it effects not only future trade, but also that which exists now.

Questions of parliamentary and economic priority timeliness abound.

However, there are also clear and unambiguous (if not well known) issues that cannot really be delayed that will affect all Ukrainian exports on the immediate horizon and that will undoubtedly create problems – even if skillfully legislated for tomorrow.

Depending upon how Ukrainian products will be transported into the EU, Ukraine seems destined to at least partially undo its very own diplomatic and negotiation successes in increasing zero tariff export quotas – and exports more generally..

If it does so then it is not for the lack of preparatory time or ignorance of EU requirements that would have still been present regardless of increases in export quotas.

With effect from 1 January 2018, Ukrainian international freight hauliers will seemingly have to comply with Directive 2003/59/EC. in order to qualify the majority of its drivers to obtain the multiple permits for international freight traffic – permits that are allocated in accordance with the ECMT quotas (European Conference of Ministers of Transport) and which from 1st January 2018 are subject to a new issuing mechanism.

In a nutshell this relates to the testing (initial and periodic) of drivers and certification of professional competence.

Ukraine began to do something about this legislatively in May, almost managing to grasp all the fundamental requirements in Bill 4603 – but not quite managing to do so. – thus it was returned for further work.  It is in fact not so far away from what is required – but the processes and structures that would underpin it are far from being so.

As is so often the case, in writing one law, there are repercussions across other existing statute, or a requirement to create supporting regulation and/or statute to support new legislation.   There would be, and is, a requirement to approximate with Directives 92/6/EEC, 2009/40/EC and 2008/68/EC relating to vehicles, construction and use, and hazardous materials/dangerous goods..

In short if Ukraine wants to deliver its produce and maximise hard won additional zero tariff trade gains,  let alone simply expand all other export markets to the EU, its freight drivers, vehicles and their condition/equipment, has to meet EU requirements.

The alternative, from 1st January 2018, is to have EU freight hauliers enter Ukraine to collect the produce and then return with it – clearly additional expenses are involved.

As is so often the case, the Verkhovna Rada has thus far repeatedly failed to set the legislative structures and processes required for Ukraine to maximise the nation’s own negotiating successes.  To be blunt Bill 4603 submitted in May would have been late in coming even if it had successfully become law – which it didn’t.

It may be that the Verkhovna Rada will manage to draft and pass a law that fully meets the legislative and regulatory requirements of Directives 2003/59/EC, 92/6/EEC, 2009/40/EC and 2008/68/EC before 1st January 2018.  However the feckless wonders in passing it so late in the legislative day, will certainly not allow sufficient time for the regulatory structures and new processes required to be implemented in time.

By way of illustration, both biometric internal ID cards and external passports have been available for months prior to Visa-free for biometric passport holders coming into effect.  Actually getting these biometric documents however, is not exactly timely.

It currently takes about 2.5 months to get a biometric passport in Odessa.  About 1.5 months to get a biometric internal ID card.

Last week Odessa opened a second centre for applications for these biometric identity documents.

It is tempting to therefore believe the delays are simply due to demand and that there has been a reasonable administrative response.  However, while that may be part of the answer, for those that go through this system, there are clearly other, very basic, reasons for the delay.

The absence of initial application forms for example.

At no time has there been sufficient applications forms in Odessa.  The process centers have not worked at an optimal level because they have not had the applications to process.  This because there have not been the application forms to complete.

Thus one, two or five dedicated administrative centers are not going to alleviate delays whilst ever the delays are caused by an absence of application forms rather than ability to process the rest of the requirements.

Taking this “biometrics” lesson in effective policy implementation and administration, and applying it to a seemingly urgent need to pass legislation,  create driver testing and periodic retesting centers, vehicle testing centers, certification (including EU standardised hazardous/dangerous goods), then it simply does not bode well for meeting a 1st January 2018 deadline.

There may be a desire, driver professionalism, and de facto technical ability to meet those EU Decrees by the Ukrainian freight hauliers, but absent and the domestic legislation, implementation and administration to produce the required certification, then meeting the requirements de jure. cannot be done

To be blunt, while the EU may have shown goodwill regarding export quotas et al, when it comes to driver ability and vehicular safety of those transporting Ukrainian goods into and across Europe, then there will be little (probably zero) flexibility if for no other reason than the safety of EU citizens on its roads.

Thus, the annual spectacle of parliamentary late nights the week before the festive season break in hurriedly passing below par legislation is unlikely to suffice with regard to just how efficiently Ukrainian produce will reach the EU from 1st January 2018.  At the very least for Ukrainian freight movers it will become far more difficult (if not impossible) by road.

It seems almost certain that existing export will suffer until this matter is legislatively, structurally and administratively confronted – and makes the diplomatic and negotiating gains effective 1st October somewhat less a success that they would otherwise have been – notwithstanding the opportunities provided by the Association Agreement and DCFTA more generally.

Clearly there was an awareness within the Verkhovna Rada in May for Draft Law 4603 to have been written at all – even if not quite meeting the requirements for sufficient approximation with the EU.  That is this legislation has been allowed to drop and fester for almost half a year with now an almost undoubted result that Ukrainian freight hauliers, exports and economy will suffer is the responsibility of the Verkhovna Rada.

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Civil society Trojan Horses trot to Brussels

September 29, 2017

Brussels knows a thing or two about bureaucracy.  In some regards it is this bureaucracy that makes it difficult to dismantle.  In others, it is this bureaucracy that prevents both timely and/or nimble responses.

It is also a hub of NGOs, NFPs, conferences, round tables, and those seeking funding thereof.

It is a place of experts (who generally shun that label and prefer labels such as “specialists” or similar).

It is also a place of “experts” who will happily adopt that label despite being anything but.

As a general rule of thumb, the specialists will be able to talk in depth about their subject, and also present sensible and insightful proposals (often detailed) for solutions – without skipping a heartbeat.  An “expert” will merely talk about an (often blindingly obvious) issue and offer vague and flimsy thoughts regarding solutions if forced into a corner.  Clearly the latter are not those to be heard when setting policy.

Who is who becomes self-evident if not during panel discussions, then certainly during the informal “social” time among “peers” at such events.  The difference between a sturdy broth and a weak soup takes little identification.

That said, in the experience of the blog, having been asked on panels and to attend round tables, labels and personal bios are often made questionably grandiose by the organisers to inflate the perceived impact of invited panelists/attendees (and give a warm glow to sponsors or justification for further funding to grant givers).  Form over substance.

By extension, the problem with that being, what is then emitted into the public realm as “expert” commentary (if anything reaches the media at all.  Not all conclaves are open to the media – and for good reason.  Such private gatherings are the only events the blog actively participates in)  is anything but expert.

Whatever the case, Brussels is one of those hubs that attracts the insightful, the informed, and the ignorant (pretending to be anything but).  The quality of what reaches the ear of diplomats and politicians, civil society leaders, and the media, therefore varies (sometimes greatly).

Having set the scene, before continuing with the subject of this entry, a reader should be aware that there are two issues.  One is the method and mens rea of the intended events outlined below.

The other is the subject of the intended event – media freedom.  The second issue, relating to media freedom, will not be covered in this entry, albeit undoubtedly something to keep a watchful eye upon as electioneering for 2019 has already begun.  To be blunt, it has been a long time since word arrived from Kyiv stating something that appeared here was “particularly unhelpful”.  Thus pressured this particular blog is not.

This entry will concentrate upon the vehicle, or perhaps Trojan Horse is a better description, that the inteded message was to be transported to Brussels upon.

It is of interest to see that the SBU and National Police in Ukraine made public a(nother) Trojan civil society Horse aimed at Brussels.

“Employees of the Security Service of Ukraine, in co-operation with the National Police, warned in Kyiv of an anti-Ukrainian action organized and funded by Kremlin customers.

Operators of the Security Service of Ukraine found that the Russian intelligence services planned to hold an action in Brussels to discredit Ukraine in front of the European community. Provocateurs planned to accuse the Ukrainian authorities of allegedly harassing journalists and the “free press”.

To this end, several Ukrainian citizens left for Brussels as “speakers” of the round table on “Violation of human rights, restriction of freedom of the press and political repressions in Ukraine”. To enhance the “effect” of their speech and provide additional “truthfulness”, the organizers planned a direct inclusion from Kyiv, during which paid “bloggers” and “journalists” were to confirm information on harassment and persecution.

Employees of the secret service documented that “bloggers” and “journalists” organized their actions according to the tradition of hiring at the “black labor market” for 100 Hryvnias each. In order to prevent their identification with European partners, the victims were obliged to wear “black” glasses in connection with alleged persecutions in Ukraine and fears for their own lives.

The only widely known person in this fake event was the People’s Deputy of Ukraine V, VI, VII convocations Elena Bondarenko, who refused to give explanations to law-enforcers. However, for her it was graciously done by the hired “show” participants.

The Security Service of Ukraine is aware of the partial change in tactics of anti-Ukrainian activities of the Russian side and the allocation in a separate vector of Ukraine’s discredit in the eyes of the world community from the standpoint of European “information platforms” and using still false and false data.

Within the framework of existing criminal proceedings, it is planned to conduct interrogations of the organizers of the fake meeting of “bloggers” for documenting the illegal activity of the special services of the Russian Federation.”

Some readers may have the perception that the SBU has its own active measures campaign – albeit generally more subtle than those of their Russian counterparts.  Some won’t have any such perception.

Ergo, while to some Ukraine watchers this may appear to be an extension and variation on a theme relating to shenanigans that occur within Ukraine under the guidance of The Kremlin via entities such as Dulsky’s Najdak NGO (to name but one Trojan Horse NGO within Ukrainian civil society space), but now projected into Brussels – is it?

Relating to the specific event above identified by the SBU, then attendees and mailing lists can expect emails from the Uspishna Kraina political party and Restoring Donbas Community Initiative which unsurprisingly they, like almost all Ukrainians, will never have heard of.

This instance appears genuine prima facie – not only because it involves a household name of known political calibre, but also the information about the event is very specific and verifiable beyond the “through the looking glass” abilities of the SBU within Ukraine.

What catches the eye in the SBU statement is that it claims to be “aware of a partial change in tactics“, and the statement in general infers that tactical change relates to Trojan civil society Horses at the gates of Brussels.

Hopefully this “awareness” is not a new revelation – but that this “awareness” relates to intelligence specific to an intended up-tick in such pantomimes beyond the Ukrainian territory.

The blog has several good, longstanding friends within the Brussels (rule of law and human rights) machinery who regularly attend Ukraine related forums and round tables.

Since 2014, every so often, a list of speakers from Ukraine presenting in Brussels has been emailed to the blog by these Brussels functionaries asking what is known about them (in effect an unofficial speaker and/or organisation bio is requested) so they, as audience members, can know what to expect and the degree of bias in any oratory – or not.  Such information has led to some prepared and difficult and awkward questions from these individuals at events – jolly good.

It is fair to say there have already been one or two Trojan Horse events held in Brussels during the past few years, and numerous individuals have been “speakers” that would feel very much at home within the massed ranks of the Trojans.  (These events occurring when Ukrainians required visas to be in Brussels – which is no longer the case.)

As such this is not a partial tactical change per se, but it perhaps rather may indicate a shift in emphasis tactically.

However, it is not the role or function of this blog to forewarn a Brussels audience (or friends that are part there of) of the biases of speakers or the shenanigans of Trojan Horse NGOs within Ukrainian (or “Ukrainian”) civil society.

For a start there is a matter of consistency – the blog simply answers the queries of friends who are attending certain events.  They do not attend all Ukraine related events, therefore “background requests” for all Ukrainian speakers/NGOS are not asked for or provided.  The blog certainly does not keep a watchful eye over which Ukrainian NGOs and/or speakers may be polluting the Brussels well – whatever their bias.

Ukrainian civil society, with the exception of a coordinating body for Ukrainian civil society/think tanks  in Brussels is almost non-existent.

Ukrainian civil society flies in, speaks and/or presents, and flies out.

One week, and four other conferences/forums/round tables later, almost all is forgotten from the wisdom/pleas/lobbying/presentations made by whichever wandering Ukrainian NGO/speaker landed in Brussels.

As such, whatever connections Ukrainian civil society may have with European diplomats and mandarins in Ukraine, it fails to have the same level of connectivity and relationships in Brussels.   Equally Brussels has nothing like the understanding that the European diplomats and mandarins based in Ukraine have.

(To be fair, there is a noticeable absence of all EaP nation civil society based in Brussels.)

Spotting a Trojan Horse (Ukrainian, “Ukrainian”, or Russian) at the Brussels gates is therefore problematic.

The questions therefore follow, how does the Brussels Bubble understand what it is told, and what is its understanding of those telling them?

Clearly there are rights relating to fundamental free speech and assembly.  However, there are indeed limits to free speech (as many court judgements ably display).  Further there is no fundamental right to promulgate propaganda or disinformation (as many court judgements ably display) – or participating in/facilitating anything else that falls under the umbrella of “active measures”.

The question is therefore who decides what is what?  And who decides who decides?

There is no requirement, nor should there be, for Ukrainian speakers and/or NGOs to have to go via the Ukrainian NGO/think tank coordination entity based in Brussels.  It certainly does not exist to track visiting speakers and/or NGOs on behalf of the Ukrainian security services or to forewarn the Brussels Bubble it is about to receive copious amounts of flapdoodle from a visiting fellow citizen.

Visas are no longer required.

The management may refuse the right to hire a venue, but it is rare that it does – or bothers to check the bona fides of those hiring.

The SBU is busy – in fact too busy doing things it has no reason to do, such as taking part in the execution of court warrants on premises that has nothing to do with its core tasks and competencies – counter-terrorism and counterintelligence.  Thus it is not going to become aware of every Trojan Horse or soldier appearing in Brussels and produce timely attempts at mitigation on every occassion.

Perhaps the FISU should keep a watchful eye upon such incidents in Brussels, but it too will struggle to prevent them (without the risk of a Brussels backlash should such attempts be discovered).

Undoubtedly the Ukrainian Head of Mission (there is no Ambassador according to the website of the UA Mission to the EU) and staff are already very busy too – public and private diplomacy eats up the hours in a day.  It may, should it so wish, push a list of names and organisations of dubious nature across numerous desks within the Brussels Bubble.  It may also attend those round tables and forums that it may consider credible, and avoid those it does not as a tacit seal of authenticity.  The problem comes when nobody can attend a credible forum – for inferences would be then wrongly drawn.  It is unlikely to do much more than the above.

Either way there are those within Brussels that would be irked by such interference and publicly proclaim so – both damaging the image of the UA Mission and amplifying an event that may otherwise have been a washout.

As previously stated, as there is an absence of Ukrainian civil society based in Brussels, thus it cannot therefore give a tacit nod of approval, or disapproval, to connections made within the Bubble relating to visiting Ukrainian civil society actors.

There is therefore a hole – and thus a weakness to be exploited by those that would seek to do so.  It has already been exploited on several occasions and to various degrees over the past few years.

If the SBU has received intelligence that this tactic is to be exploited further and more often, then efforts at mitigation would be wise – even if the audience is almost certain to forget almost everything they hear within a few weeks (if not sooner).

Considering the financial restrictions upon many Ukrainian NGOs it is unfair to expect them to open offices in Brussels and help fill the hole that will be exploited – though Ukrainian civil society perhaps does itself no favours by its (almost complete) absence anyway.

Even if some did open permanent office in Brussels, should they be de facto giving nods of approval or disapproval relating to the bona fides of other Ukrainian speakers and/or visiting NGOs?  It is a competitive world when it comes to funding, and self interest may raise conflicts of interest or accusations thereof.

Is it beholding upon the European diplomats and mandarins based in Ukraine, and who know far more than those in their native countries about the state of play, to publicly “tut” when certain speakers or NGOs are to make an appearance in Brussels?

It would certainly be a mistake to believe the Brussels Bubble will educate itself regarding the who and what they are listening to – for they listen to a lot each and every day and simply do not have the time to educate themselves upon all the “who’s” they will hear and the credibility of the “what”.

There may be a way to sew together parts of all the above to create some form of “awareness/”watch list” when it comes to Trojan Horses and soldiers within the Brussels Bubble – but there would be a requirement to decide just who is responsible for collecting and disseminating that information, and how that information is fed in (for some may be collected by sensitive means).  Required also is an understanding of how any such information would be received – and the consequences of how it would be received.

There are also considerations regarding Trojan Horses galloping around European capitals on a tour de force should a way to mitigate not be implemented.

Something to keep an observant eye upon.

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