Brussels, 21 February 2025
Comment by Andrew Duff, Academic Fellow of the European Policy Centre, former MEP
On 28 February 2022, four days after Putin’s full-scale invasion and while Russian tanks were only a few kilometres from Kyiv, Ukraine applied to join the European Union. President Zelensky asked for a “new special procedure” to facilitate EU membership for his country. Later that month, Zelensky was invited to a meeting of EU leaders. On 24 June, the European Council accepted Ukraine, along with Moldova, as a candidate country. The EU was reacting with unprecedented alacrity after years of standstill. The last enlargement (Croatia) had taken place as long ago as 2013, and the candidacy of other Western Balkan states had stalled.
For those harbouring doubts about renewing enlargement, there were still plenty of steps left to be taken that could retard or obstruct the actual accession of Ukraine as a full member state. The Commission was not in the vanguard of those who sought early Ukraine membership. In her first term (2019-24), President von der Leyen appointed a noted eurosceptic, the Hungarian Commissioner Olivér Várhelyi, to the enlargement portfolio. The Commission repeated the formula that the EU would be ready to welcome new member states whenever, after strict monitoring, they made it across the thresholds set by the Union. EU internal reforms to ready the Union for the burden of enlargement would proceed ‘in parallel’ with the accession negotiations — which implied that enlargement could be paused while the EU struggled with its own constitutional dilemmas.
In so far as serious political reform of the Union requires treaty change, nobody believed for one moment that von der Leyen would take the plunge and follow the European Parliament’s proposals to re-open the treaty. A false idea gained ground, especially among those who had never read the document, that the Treaty of Lisbon was designed to be ‘enlargement proof’.
At the level of the European Council, however, Zelensky continued to make progress. In Granada, in October 2023 the leaders pledged to “continue to support Ukraine and its people for as long as it takes”. They declared that “enlargement is a geostrategic investment in peace, security, stability and prosperity”. On 15 December, the European Council took the momentous step to open membership negotiations and establish a Ukraine Facility to assist the convergence process. Hungary’s nationalist prime minister, Viktor Orbán, was obliged to leave the room to allow his colleagues to make their decision, and they voted unanimously in favour — as Article 49 TEU requires. To avoid fuelling unrealistic expectations, no timetable was set. Precedent suggested that accession negotiations in normal circumstances take at least five years to complete. In the abnormal circumstances of war-torn Ukraine, nobody was placing bets.
Methodology
The backdrop to these superficially encouraging decisions to expand membership was a set of tough conditions adopted in 2020, entitled euphemistically Enhancing the accession process. The new arrangements were devised ostensibly for the Western Balkans, but were approved by the Council with general application in mind. Their prime mover was, ironically, the celebrated europhile President Macron who faced re-election by his ineluctably eurosceptic French electorate. Von der Leyen, seeking cover, claimed that the new system would give member states more political steer on the enlargement process. Unanimous decisions of the Council would be required for the opening and closing of six clusters incorporating all 33 chapters of the accession portfolio. The Commission would advise the Council on halting or even reversing the process if strict conditions were not met.
In September 2023, von der Leyen commissioned some ‘pre-enlargement reforms and policy reviews’, which are meant to be published soon. On this somewhat hypothetical basis, the first Intergovernmental Conference on Ukraine’s accession took place under the Belgian presidency of the Council on 25 June 2024, establishing the official Negotiating Framework. This document doubles down on the tougher 2020 methodology.
The negotiations will prioritise Ukraine’s willingness to promote the values of the Union, including democracy, the rule of law and respect for minorities. The Council, acting by unanimity on a proposal of the Commission, will lay down benchmarks for the purpose of screening. As and when Ukraine demonstrates progress on these fundamental reforms, it will be gradually phased into the internal market, sectoral policies and spending programmes. If the Commission’s screening reveals backsliding or disregard of Union values, it may recommend a pause in the accession process which recommendation will be deemed adopted unless the Council musters a qualified majority vote (QMV) against it. The Council will then decide, but by unanimity, to open and close each chapter of the remaining clusters.
Such methodology based on unanimity gives every member state plentiful opportunity to block Ukraine’s membership. Bilateral issues with Ukraine, or issues wholly extraneous to Ukraine, can be elevated into a veto. Ukraine can be held hostage by any single EU government. The emphasis placed on the fundamentals’ cluster is particularly ironic when certain existing member states are being arraigned for breaches of those same fundamentals. The European Court of Justice has already had to remind member states that they need to continue to respect the conditions of their accession even after accession. And the Commission routinely has to take action against member states for failing to implement EU law properly.
Progress
It does credit to the Kyiv government that, to date, the Commission and Council have declared themselves satisfied at Ukraine’s fulfilment, even under martial law, of the terms of its 2014 Association Agreement and its progress in removing barriers towards the creation of a deep and comprehensive free trade area. As recently as December the Council was congratulating itself on a “new dynamism in the enlargement process”.
However, the arrival of the Trump presidency in the US changes the scene entirely. Doubtless President Putin’s top priority is to stop Ukraine from ever joining NATO. But he is also deeply hostile to the prospect of Ukraine being admitted as a member state of the European Union. For Kyiv, the prize of EU membership is immeasurable. For the first time in its history the state will be treated as a full equal among the comity of democratic nations. EU citizenship will extend to all Ukrainians the guarantees of the Charter of Fundamental Rights. As a member state, Ukraine’s state sovereignty will have the full protection of EU and international law. It will benefit from EU solidarity when under attack or misfortune (Article 222 TFEU). Although President Zelensky may see EU membership as second best to NATO, he knows very well that his country’s future prosperity and security depends on a swift and complete fulfilment of the accession negotiations in Brussels.
Munich
At the recent Munich Security Conference, both Ursula von der Leyen and António Costa, the President of the European Council, spoke of the need to accelerate Ukraine’s accession process. One hopes that one of von der Leyen’s pre-enlargement papers will deal with the prospect of fast-track membership for Ukraine. But how might membership be speeded up? Three ways.
First, by reversing the unorthodox incursion of unanimity into Council decision making. Von der Leyen, Costa and Zelensky should from now on insist on that each Commission recommendation as to how to proceed in the enlargement dossier should stand accepted by the Council unless a QMV can be mustered against it. The over-complicated and ponderous Negotiating Framework of 2024 must be revised, simplified and made to conform with the letter and spirit of the EU Treaties. Article 49 TEU allows for two occasions only where unanimity among the member states is required: the first is at the opening of the accession negotiations; the second is at the completion of the whole process when every member state has to ratify the accession treaty according to its own constitutional requirements. In the meantime, members states are expected to cooperate sincerely and constructively to accomplish enlargement (Article 4(3) TEU). And the Council is intended to act throughout by QMV (Article 31(2) TEU).
Secondly, the concept of gradual integration must be enhanced. Where Ukraine clearly fulfils the obligations of membership it should be allowed to vote in EU policy matters on a provisional basis as soon as the accession treaty is signed and not made to wait until the end of the accession process. Nowhere is this more important than in the decisions relating to the EU’s common foreign, security and defence policies. Ukraine has no need to prove its military capability. It can be signed up immediately to the advanced level of permanent structured cooperation in defence (Article 42(7) TEU) where its voice and vote will be invaluable.
Thirdly, the EU and Ukraine should set themselves the ambitious timetable of drafting the accession treaty by December 2025. Thereafter the business of national ratification can proceed. This is never quick. There will be time for the normal screening of the enlargement chapters to continue as majorities for Ukraine are assembled in national parliaments or by popular referendums. The EU treaty will be based on Ukraine’s international boundaries as they were in 1991, but the acquis will be suspended in any territory where the Kyiv government does not hold sway. The Cyprus situation, where EU law does not apply to the Turkish North, is a precedent.
A protocol will be needed to deal with the transitional period where Ukraine is admitted on probation to partial membership of the Union. The intervening time taken to ratify the treaty across the EU, as well as in Ukraine after the ending of martial law, will also allow the necessary budgetary adjustments to be included in the negotiation of the new Multi-Annual Financial Framework. The provisional constitutional situation can be rectified in time for the next elections to the European Parliament in 2029.
Crunch
Accelerating its admission to the EU may be an imperative condition for Ukraine’s acceptance of a peace deal imposed by Putin and Trump. How EU institutions and member states rise to the challenge of fast-tracking Ukrainian membership is a critical test of their political will to continue with the European project. For many years, most mainstream EU leaders have paid no more than lip-service to the goal of enlargement and deeper integration: Ukraine for them is the crunch. And who among the EU’s homegrown sovereigntists, Putin apologists, will dare to wield a veto against Kyiv’s speedy accession, jeopardising Ukraine’s very existence as a sovereign state?
Some objections will be raised that the candidacy of Ukraine receives privileged treatment. But Europe is at war and the frontline is Ukraine. For the sake of the future of Europe, the addition of a large and dynamic EU member state with a democratic and geopolitical cause may even shock Brussels out of its own constitutional torpor. And where Ukraine leads, others may follow — including the United Kingdom.
Andrew Duff is an Academic Fellow of the European Policy Centre. He is a former Member of the European Parliament (1999-2014), a Vice-President of the Liberal Democrats, Director of the Federal Trust, and President of the Union of European Federalists (UEF).
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Source – EPC