Is Ukraine truly ready to join the EU? A qualitative analysis on its democratic preconditions

On February 28th, four days after Russia invaded Ukraine, President Volodymyr Zelensky officially signed Ukraine’s application for EU membership and addressed the European Parliament, requesting the implementation of a fast-track procedure to move swiftly to admit its country into the European Union. On April 8, during a visit to Kyiv, European Commission chief Ursula von der Leyen handed the questionnaire required to obtain the status of a candidate to Zelensky, pledging a speedier start to Ukraine’s bid to become a member of the EU following Russia’s invasion of the country. In just ten days, Zelenskyy submitted the document on April 18 – a record time by EU standards, as it generally takes years for member candidates. Barely a month later – on May 9 – the Ukrainian President completed the second part of the questionnaire. Although Zelensky stated that Ukraine’s accession is well-deserved and “all this is possible“, strongly believing in the great benefit that joining the Union will bring to its people, so far von der Leyen and Michel’s actions have not yet gone beyond a disengaged declaration that the Ukrainian people “belong in the European family” – since it is not in their power to admit Ukraine.

The benefits of Ukraine joining the European Union are indeed numerous and relevant, not only given the current conflict but also for the country’s future in general. In terms of short-term advantages, the EU could immediately help Ukraine militarily, as its members are bound by a mutual defence clause – Article 42(7) TEU – that requires other members to aid a country if it is “the victim of armed aggression on its territory”. Economically, Ukraine could also benefit from favourable rights granted to members, like Ukrainians having free movement throughout the bloc and entering the single market. The countless other benefits, not only in the economic sphere, are clearly explicated here. The Union as well could benefit from Ukraine’s entry, as it would be “a bold, courageous, and meaningful political statement” and send a message to Moscow.

But not everything, however, is as simple as one would hope. The questionnaire is used to determine whether a country fulfils the requirements to join the EU. In case the European Commission recommends a country for membership – which is likely to happen in June for Ukraine – the country becomes an official candidate for membership and moves on to begin formal negotiations. The questionnaire traces the access requirements defined in the so-called Copenhagen criteria, established by the 1993 European Council summit. It consists of three key areas: political, economic and the EU acquis criteria. The first requires “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”; the second demands “a functioning market economy and the ability to cope with competitive pressure and market forces within the EU”; the last checks “the ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law – the acquis communautaire –, and adherence to the aims of political, economic and monetary union”. It is the latter criterion that typically yields the most difficulties: due to the huge volume of EU rules and regulations each candidate country must adopt as national law, the negotiations take time to complete. For this very reason, an acceleration of the EU enlargement process is very unlikely: rather, it has systematically been getting longer with every new wave of enlargement, since the large quantity of reforms – over 60 years of common European rules and laws – a candidate State has to undergo before they meet European political and economic standards is constantly increasing. This is no small task, even for advanced democracies. Further, of note for prospective members is Article 2 TEU, combined with Article 49 TEU. While the former lists as values “respect for human dignity, freedom, democracy, equality, rule of law and respect for human rights, […] in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality […] prevail”, the latter states that “any European State which respects the values referred to Article 2 and is committed to promoting them may apply to become a member of the Union”.

Although Ukraine, in the second questionnaire delivered, assessed the compliance of its legislation with the acquis, actually the country still has a long way to go to be fit for European standards. In fact, over the years Ukraine has always stood out for issues regarding the quality of the rule of law within the country. To conduct this analysis, reports offered by two think tanks that rate the quality of political rights, civil liberties and the functioning of the government of the countries analyzed will be used: Nations in Transit and Freedom in the World by Freedom House and the Bertelsmann Transformation Index. In Nations in Transit, in its latest report Freedom House classified the country as a Transitional or Hybrid Regime, while for Freedom in the World 2022 report it is to be considered Partly Free: thus, for Freedom House, Ukraine “cannot be described as a stable, consolidated democracy” since the country demonstrates dynamism in making active moves backwards and forward in its democratic development. A thesis also confirmed by the Bertelsmann Transformation Index in the 2022 report, which categorizes it as a Defective Democracy, noting that the Ukrainian people themselves are dissatisfied with the functioning of democracy and democratic processes.

The Ukrainian Constitution provides for the separation of powers. However, developments in Ukraine since Zelensky became President and his party won the majority in Parliament in 2019 indicate that the formal separation of powers may in fact be weakening. The Office of the President has become the almost single decision-making authority, with Parliament supporting presidential initiatives and the government being practically wholly subordinated to the Office of the President. Lately, Ukraine encounters difficulties in the national democratic governance field: mainly due to the Covid-19 pandemic, Ukraine’s Parliament, under pressure from the President, hastily adopted a series of laws in the “turbo mode” legislative process consisting of a fast and unified manner, frequently violating legislature’s procedural. President Zelensky also reorganized key political personnel, replacing the head of the Office of the President, the Prosecutor General, and rearranging the entire executive branch: the President’s new appointments have been controversial and point to an informal coalition of different influence groups in his Sluha Narodu party. Over the past year, without possessing a monolithic majority but composed of deputies linked to the oligarchs, the President and his team worked to concentrate the power of security and law-enforcement agencies under the executive’s direct control, including the National Security and Defense Council. The latter has become one of the most controversial and contentious institutions as it has expanded to combine public and judicial powers and, in the absence of independent oversight, has appeared selective and opaque in its decision-making. Indeed, it sanctioned a wide range of private companies owned by pro-Russian parliamentarians or the former Ukrainian President: critics said that such use of sanctions violated Ukraine’s Constitution and international treaties, weakened basic principles of the rule of law and posed a serious threat to citizens’ rights and civil liberties. In addition, the Deoligarchy Law expanded the agency and the President’s powers to restrict the political, media and economic activities of alleged oligarchs – or whoever was considered to be such by the President: following the dissenting opinion of the President of Parliament, who demanded that the draft be referred to the Venice Commission and suggested that it did not comply with the Ukrainian Constitution, he was dismissed from office. Also undermining democratic institutional resilience is the government reshuffle, replacing ten ministers with members loyal to Zelensky’s party, with Parliament merely approving presidential candidates without discussing their programs.

The judicial field and the rule of law also find a problematic situation, since the judiciary remained one of the perceived most corrupt State institutions and the least trusted: 64% of Ukrainians believed that bribery is standard practice in the courts, and only 10% stated that they fully or mostly trust the judiciary. Reform of the judiciary has not yet been successful: the judiciary’s independence has not been achieved, primarily due to the country’s highly volatile political situation and the lack of a tradition of the rule of law. In 2020, President Zelensky unsuccessfully attempted to dissolve the Constitutional Court and dismiss the Court’s chief justice, as it proved to be a strong veto player in the reform process since it stated that most provisions of Zelensky’s judiciary law were unconstitutional. While the Supreme Court reversed the dismissal, Zelensky attempted to appoint two new judges, which the Court refused to swear in. Last year, the Constitutional Court declared several provisions of the Law on the Prevention of Corruption unconstitutional. This decision prohibits gathering, storing, and publishing e-declarations as well as monitoring the lifestyle of public officials; it also restricts open access to the register of e-declarations and abolishes criminal liability for providing false information on assets. Its decision was broadly criticized by the international community, including the Venice Commission, for its vague reasoning and potentially negative impact on the prevention and investigation of corruption, thereby undermining previous efforts to establish effective control mechanisms. The proposed reform of the Security Service of Ukraine also had worrisome undemocratic provisions and for government checks and balances: human rights observers warned that the new amendments could dangerously increase the body’s powers and could threaten citizens’ fundamental freedoms and personal data protection, while eliminating the power of the courts in investigating security issues.

Indeed, Ukraine’s major concern is corruption: public opinion data from 2021 suggest that corruption has become the number one concern for the country – 49% consider corruption the most important issue for the State. In 2012, Ernst & Young puts Ukraine among the three most-corrupt nations among 43 surveyed; in 2015 The Guardian called Ukraine “the most corrupt nation in Europe”; according to Transparency International’s 2021 Corruption Perceptions Index, Ukraine ranked 122nd out of 180 countries in 2021, the second most corrupt in Europe. By mid-2020, the National Anti-Corruption Bureau of Ukraine had launched around 1.000 investigations and filed 265 cases in courts but had secured only 41 convictions. In 2021, the European Court of Auditors issued a report criticizing the ineffectiveness of the European Union’s anti-corruption initiatives in Ukraine, stating that the “existing environment in Ukraine puts the sustainability of anti-corruption institutions at risk, as they still rely on the unreformed judicial, prosecution, and law-enforcement sectors”. The main causes of corruption in Ukraine are a weak justice system and an over-controlling non-transparent government combined with business-political ties and a weak civil society. In the political area, Ukrainian politicians have regularly accused each other of corruption – since 2010, 400 politicians and 500 sitting officials had faced criminal charges: even, in 2011, the President, Prime Minister, Speaker of Parliament, Prosecutor General, ministers and other senior Ukrainian officials were prosecuted for corruption. As for the legal sector, the Ukrainian judiciary is widely regarded as corrupt, with little independence of the judiciary from the executive and rampant political pressure exerted on judges: independent lawyers and human rights activists have complained that Ukrainian judges are regularly pressured to deliver a certain verdict. Although attempts to curb endemic corruption are present, equally numerous are attempts to stop the work of these anti-corruption agencies: influence and interference have occurred in the activities of the High Anti-Corruption Court and the Specialized Anti-Corruption Prosecutor’s Office, which have faced attempts to weaken their independence and institutional capacity.

From the analysis conducted, it is clear that, although it marked its thirtieth anniversary of independence in 2021, Ukraine cannot yet be considered an established democracy based on a solid conviction in the values of the rule of law and separation of powers. The internal issues of State institutions persist and should not be replaced by a sympathetic motion toward the conflict they have suffered – no matter how serious and illegitimate it certainly is. Indeed, admitting Ukraine into the EU would certainly be too hasty and rash a move, which would do future damage to the stability and smooth functioning of the entire Union – the exact same trouble that is currently occurring with Hungary and Poland. After the dissolution of the Soviet Union, optimism toward liberal democracy, considered the “end of history”, and the precipitous political upheaval in Hungary and Poland led to all too rapid establishment of formal democratic institutions and only apparent democracy consolidation – to enable the two countries to join the European Union in 2004. All too rushed, just to bring the former allies of the now-dissolved Soviet Union closer to the Western bloc in the shortest possible time. The fruits of this haste in their admission have led to a failure of democratic traditions to take root since they did not have enough time and thus fertile ground to take hold intimately in society. Western institutions were moved into the region without their socio-cultural environments being ready to accommodate them. In fact, assimilation understood simply as copying well-designed external models, without considering the local capacity and conditions to make them their own, will not lead to complete conversion: thus, established democracies have not emerged. The process of democratization and Europeanization would prove to be a failure, indeed, an illusion, since the new democratic institutions remained “empty shells without substance” in the absence of democratic culture and consensus.

And now we are suffering the fruits of these mistakes: although the sanctions mechanism under Article 7 TEU has been activated (even if not finalized) for both countries, this has not led the countries to realign themselves with the founding values of the EU, and the situation in both Poland and Hungary has deteriorated further. A new tool has been introduced, and Hungary was the first member against which it was used: in early April, the Commission launched the Rule of Law Conditionality Mechanism, withholding EU funding if violations such as ineffective prosecution of corruption, harm the financial interests of the Union. This move comes after events in November 2021, when the Commission questioned Hungary and Poland about problems with the independence of the judiciary, ineffective prosecution of corruption, and shortcomings in public procurement. Nevertheless, the Union proves ineffective in opposing the autocratic direction taken by Hungary and the authoritarian thrusts of Poland – at the risk of legitimizing their conduct and succumbing to their claims. And this could seriously threaten the entire European project. Furthermore, the unpunished presence of two authoritarian States in the Union fuels concerns that EU leaders may accept their existence in the EU as a long-term reality, which would endanger the organization’s status as a normative project. In addition, the alliance between the two countries, and between them and the other countries of the Višegrad Group, could constitute an internal enemy at the heart of Europe, so as to pose as a constant opposition and hold back the policies of European advancement and integration.

Ukraine’s inability to join the Union is clear and shared even among European leaders. However, solutions have been put in place to reconcile the help the EU wants to offer Ukraine, a victim of Russian aggression, with its democratic immaturity, which makes its membership unrealistic. In this, there is a harmony between the Elysee and Rome: the idea proposed by Macron in fact matches that foreshadowed by PD Secretary Letta. Indeed, the two leaders hope for the creation of a “confederation” as a compromise to widen the European sphere without fragilizing the EU’s hardcore. Speaking at the European Parliament in Strasbourg, Macron proposed a new “European political community”, which would include both members and non-members of the EU – also in response to the legitimate aspiration of the people of Ukraine. “This new European organization”, Macron said, “would allow democratic European nations adhering to our set of values to find a new space for political cooperation, security, cooperation in energy, transport, investment, infrastructure, and the movement of people”: it would thus be a plan for strengthening the EU’s ties to partner countries and guaranteeing them the benefits of membership, before granting it. Because Ukraine still has a lot of work ahead of it, and there is still a long way to go on the road to EU membership.