Ukraine applies for membership of the EU: the last step of a long-lasting path toward the Union

On the 19th of April, Ukrainian President Volodymyr Zelens’kyj has submitted to the Ambassador of the European Union to Ukraine the answers to the EU membership questionnaire, consigned by EU Commission President Ursula von der Leyen 10 day prior. This constitutes the most recent step on Ukraine’s EU path. Being a formal instrument aiming to asses the readiness of applicant countries to move forward in the accession process, said questionnaire will be the basis of the discussion that will take place in the coming months regarding the future of Ukraine with regards to EU membership.

While EU membership has been a political goal since 2000, the Ukrainian path toward accession started 8 years ago, when the country signed the Association Agreement with the EU. The Agreement, signed on the 26th June 2014 by the European Union and its Member States, on one hand, and Ukraine, on the other, has the aim to establish a close and lasting relationship that is based on common values, which would facilitate the participation of Ukraine in European policies. It recognises the close historical relationship and progressively closer links between the Parties and their desire to strengthen and widen their relations, as well as the fact that Ukraine as a European country shares a common history and values with the Member States of the Union.

The relationship is explicitly underpinned by the respect for democratic principles, human rights and fundamental freedoms and the principles of a free market economy (Articles 2 and 3), and it establishes an association that: promotes the gradual Ukraine’s convergence with EU policies and participation in programmes and agencies; provides an appropriate framework for enhanced political dialogue in areas of mutual interest; establishes conditions for enhanced economic and trade relations leading towards Ukraine’s gradual integration in the EU internal market, including by setting up a Deep and Comprehensive Free Trade Area (DCFTA), and to support Ukrainian efforts to complete the transition into a functioning market economy by means of the progressive convergence of its legislation to that of the Union; enhances cooperation in the field of justice, freedom and security to reinforce the rule of law and respect for fundamental rights.

Scholars argue that, through the Agreement, Ukraine’s economic reorientation away from Russia and to the EU has enabled the EU to become Ukraine’s major trade partner, with a share of 40.7% of Ukraine’s foreign trade as of 2020. Much has also been achieved in relation to legislative approximation with the EU, especially when it comes to removing technical barriers to trade and improving public procurement.

These achievements have enabled the EU not only to provide Ukraine with unprecedented macroeconomic and State-building assistance, but also to create the conditions for longer-term resilience-building. The EU-Ukraine Association Agreement is therefore not only an instrument for political rapprochement and economic integration, but also a tool for resilience building, which has offered a window of opportunity for the EU to shape the outcome of the current crisis.

The process of convergence has recently been accelerated by the Russian invasion of the country, which has functioned as a catalyst of the desire of Ukraine and its citizens to become member of the EU. The Russian annexation of Crimea and the sign-off of the EU-Ukraine Association Agreement were historical events that collectively determined Ukraine’s European choice. After the start of the war in February 2022, the level of support for integration into the EU among the Ukrainian population reached 86%. As a consequence, on the 28th of February, after 4 days of war, president Zelens’kyj has officially submitted a letter of application for EU membership, demanding a special procedure for Ukraine’s immediate grant of “candidate status” to EU membership.

The following day, the European Parliament issued a recommendation (with 637 in favour and 13 votes against) in support of Ukraine’s official “candidate” status. The Parliament explicitly called for the EU institutions to work towards granting EU such status to Ukraine, in line with Article 49 of the Treaty on European Union (TEU) and on the basis of merit, and, in the meantime, to continue to work towards its integration into the EU single market along the lines of the Association Agreement.

In addition, at the EU summit in Versailles on March 10th, EU Member States have raised the pressure for the European Commission to accelerate its decision-making process. Through a statement of the heads of State or government the European Council acknowledged the European aspirations and the European choice of Ukraine, as defined in the Association Agreement and restated through the Ukrainian application to become a member of the Union, and reasserted the idea that Ukraine belongs to our European family. The Council consequently invited the Commission not to delay the necessary decisions and to “submit its opinion on this application in accordance with the relevant provisions of the Treaties”, with the final objective to support Ukraine in pursuing its European path and to further strengthen the bonds between the country and EU.

The response of the Commission has been positive but, through the words of President von der Leyen, it has also highlighted how for Ukraine “there is still a long path ahead”, even though this position has then been nuanced through the delivery of the aforementioned EU membership questionnaire. Indeed, becoming a member of the EU is a complex process, requiring enormous efforts on both the applicant and the EU parts and it is consequently an extremely long procedure whose outcome cannot be taken for granted. In fact, there are currently five countries that are candidates to join (Turkey, Serbia, North Macedonia, Montenegro and Albania) but their requests have been stuck in limbo for years. The rationale is to avoid the risk that countries may become members of the EU too quickly and in spite of their unpreparedness, thus aiming to ensure a genuine and deep integration of Member States within the Union.

The procedure for the admission of new members is established by Article 49 TEU, which prescribes that the requiring State transmits its pledge to the Council, which deliberates by unanimity, after consulting the Commission and the approval of the Parliament. The requirement of unanimous vote within the Council implies that the accession of new member is subordinated to the consent of all Member States. The article also prescribes that, in order to apply for membership, the aspiring State must respect and promote the values of the Union, as enunciated by Article 2 TEU, and must be compliant with the admissibility criteria defined by the European Council.

These refer to the Copenhagen criteria: countries wishing to join need to have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and the capacity to cope with competition and market forces in the EU; the ability to implement effectively the acquis (the constantly evolving body of common rights and obligations that is binding on all the EU Member States) and to take on the obligations of membership, including adherence to the aims of political, Economic and Monetary Union. Finally, regarding the fast track procedure required by President Zelens’kyj, it is necessary to clarify that despite all the recent rhetoric about a potential “special” procedure, such a procedure does not exist under the EU Treaties.

Throughout the negotiation process, the Commission monitors the candidate’s progress in applying EU legislation and meeting all its other commitments. This gives the candidate additional guidance and an assurance to current members that the state under scrutiny is meeting the conditions for joining. Thus, the EU operates comprehensive approval procedures that ensure new members are admitted only when they can demonstrate they will be able to fully play their part as members, by complying with all the EU’s standards and rules, having the consent of the EU institutions and EU Member States as well as of their citizens (expressed through referendum or parliamentary vote).

Examining the Association Agreement in light of the commitments listed above, its nature as a first step toward membership becomes clear: the Agreement refers to values of democracy, human rights and fundamental freedoms and the principles of a free market economy, which correspond to the benchmark requirements for membership. Moreover, the further implementation of the and DCFTA, together with new forms of sectoral integration, will bring the country closer to meeting the Copenhagen criteria. According to some observers the dynamic nature of the Agreement, combined with its open-ended accession perspective, implies that both the EU and Ukraine can aim to new and more ambitious forms of political association or economic integration, so that, following Ukraine’s EU membership application,  the EU-Ukraine Association Agreement is still fit for purpose.

What remains to be assessed is Ukraine’s effective readiness and eligibility to acquire EU membership, and this has in fact been questioned by some countries such as Austria, Germany and the Netherlands, which have expressed their doubts regarding the country’s compliance with the requirements set by EU law. While the symbolic value of Ukraine accession is undoubted, the possibility that, considering the current state of affairs, this process risks to be counterproductive for both Ukraine and the EU needs to be taken into account and is once again dividing EU Member States and impeding them to reach a common position.