Negotiations as an integral part of the EU accession process. What is of main relevance for Ukraine?

A more recent historical step in the relations between Ukraine and the EU happened in June 2022 when the country was granted a candidate status for accession to the EU. The decision took place in a very specific geo-political environment and only a couple of months after Russia started its full-scale aggression on Ukraine that developed into a war not experienced on the European continent since World War II.

Granting of a candidacy status represents a very important step on Ukraine’s path towards the beginning of the EU accession negotiations and ultimately towards full membership. This step should nevertheless be looked at within the overall context of the highly complex EU accession process. The main objective of this policy brief is to present the main features of the EU accession negotiations as an integral part of the broader EU accession process with special reflection on the case of Ukraine.

Two parallel tracks of the EU accession process for an EU acceding county

The EU consisting of 27 Member States is a unique political and economic entity that combines international cooperation and integration among sovereign states within Europe. Throughout its more than 7 decades long history, the EU and the European Economic Community as its predecessor enlarged seven times, the first time in 1973 and the last time in 2013.  

The legal basis for the enlargement has always been incorporated in the Treaty. Under the current EU’s Treaty on European Union (TEU), this subject is addressed in Article 49. It says that any European state which respects the EU values referred to in Article 2 [human dignity, freedom, democracy, equality, the rule of law and human rights] and is committed to promoting them may apply to become a member.

Before the 1990s, there was no formal criteria an EU aspiring country had to meet in order to become an EU Member State. Such criteria were set by the 1993 Copenhagen Economic Council when the EU was faced with the membership requests of 12 ex-communist countries from the eastern part of the continent. The so-called Copenhagen criteria include the following: (i) stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (the political criteria), (ii) the existence of a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the EU (the economic criteria), and (iii) the ability to take on obligations of membership (the acquis criteria). The latter requires a candidate country to incorporate acquis into its national legislation and to implement this legislation effectively by using appropriate administrative structures and judiciary.

The EU accession of an EU aspirant country is an extremely complex process that is in fact composed of processes running on two parallel tracks.

• The EU association process based on association-type agreement. The agreement deals with a wide range of activities that are needed to meet the three Copenhagen criteria. As already mentioned, in the case of Ukraine, the Association Agreement was signed in June 2014 and entered into force in September 2017. The main objective of the association-type agreements is to strengthen the political association and economic integration of the aspirant country with the EU.
• The EU accession negotiation process. This is a process in which an EU candidate country has to reach an agreement with the EU Member States about the terms of its accession to the EU. Under the 2020 Enlargement Methodology, the process is organized under 6 clusters with each of them containing certain number of the negotiating chapters.

The two processes are closely interlinked and with the EU negotiations advancing, they increasingly merge nearly into a single process. Nevertheless, they should be regarded as separate processes as they are based on different legal bases and deal with different tasks. While the association process is dealing with the complete acquis, i.e. with complete harmonisation of the national legal order with the EU legislation until the day of the actual membership in the EU, the negotiation process is dealing with specific problems in the transposition of the acquis and ends with the completion of accession negotiations approximately two years before the membership in the EU. In order to run both processes effectively and in a highly coordinated manner, an EU candidate country has to design and put into operation an institutional structure and procedures that are capable of reaching these objectives. 

The process of the EU accession negotiations

The process of the EU accession negotiations is a long, complex and also highly technical process that may be classified into three stages: (i) Before the EU accession negotiations start, (ii) During the EU accession negotiations, and (iii) After completion of the EU accession negotiations and before the candidate country becomes an EU Member State.  For the 21 current Member States to complete the EU accession negotiation process – all the three stages – and join the EU (the remaining six were original founding members), the process lasted on average about 9 years. The timeline varies, however, depending on national and global politics and on how much a country needs to reform its own laws to meet the EU’s standards. The negotiation stage alone – the second stage – is typically by far the longest. Among the current EU members, the time between the launch of negotiations and the signing of an accession treaty has taken an average of about four years – accounting for roughly half of the average duration of the overall accession negotiation process.

Each of the three stages consists of several sub-stages.

Before the EU accession negotiations start

1. Application for EU membership. Accession to the EU is laid down in Article 49 of the EU’s Treaty on European Union (TEU). On 28 February 2022, i.e. immediately after the start of the Russian aggression on Ukraine, the country submitted its application for EU membership.
2. Preparation of the Opinion. Once the application is filled and on request of the Council, the European Commission prepares the Opinion which is being drafted on the basis of responses to the questionnaire completed by the applicant country. In the case of Ukraine, the European Commission delivered its Opinion on June 17, 2022 which means that the Opinion was prepared in an extremely expeditious manner and much quicker than in similar cases in the past.
3. Decision of the European Council on the EU candidacy status of the applicant country. The Opinion is discussed at the European Council. On the basis of the European Commission’s recommendation, the European Council may decide either to grant the EU candidacy status to the applicant country, to hold it or to reject it. The decision must be taken with unanimity. At the European Council of 23-24 June 2022, Ukraine and Moldova were given a status of the EU candidate countries.
4. Decision of the European Council to start the EU accession negotiations with the candidate country; Again, on the recommendation of the European Commission, the European Council may take a decision to open the EU accession negotiations with the candidate country, and again, the decision must be approved with unanimity. In the case of Ukraine, the European Commission set seven recommendations as a prerequisite to open the EU accession negotiations. These recommendations include: (i) constitutional court reform, (ii) judicial reform, (iii) anti-corruption reform, (iv) anti-money laundering and law enforcement reform, (v) anti-oligarchic law, (vi) harmonization of audio-visual legislation, and (vii) legislation on national minorities. Over the recent time, Ukraine has made significant steps forward on all seven areas which are expected to be fully recognized in the European Commission Analytical Report on Ukraine`s alignment with the EU acquis that will be released in October 2023. If the recommendations are met sufficiently, the European Council is expected to open the accession negotiations in December 2023.

During the EU accession negotiations

Over the last 25 years, the process of the EU accession negotiations has gone through several stages and consequently we can talk about several generations of these negotiations. The new 2020 Enlargement Methodology that de-facto represents a guidance for a new generation of the EU accession negotiations is based on the following four principles:

• more credibility: leaders of the candidate countries must become more credible on their commitments to deliver fundamental reforms while the EU must in return deliver on its commitment to the merit-based process, i.e., member states should agree to move forward in the negotiations if candidate countries meet the objective criteria. Negotiations on the fundamentals – rule of law, functioning of democratic institutions and economic reforms – will be opened first and closed last and will be guided by roadmaps.
• stronger political steer: while EU accession negotiations have been considered pretty much a technical process in which on the EU side the European Commission plays an important if not even dominant role, in future these negotiations should get a stronger political connotation. This means that both sides should show more political leadership and should live up to their respective commitments.
• a more dynamic process: this means a possibility for faster negotiations of those candidate countries which can and wish to move forward quicker. On the other hand, for those who opt to go slower the enlargement process will be slowed down. The main instrument for making the process more dynamic is clustering of the 33 negotiating chapters of the acquis into 6 logically connected thematic policy clusters: (i) fundamentals including rule of law, (ii) internal market, (iii) competitiveness and inclusive growth, (iv) green agenda and sustainable connectivity, (v) resources, agriculture and cohesion, and (vi) external relations. The very heart of the accession negotiations will be the fundamentals cluster as it will be opened first and will remain open until the end of the negotiations. Progress under the ‘fundamentals’ cluster will determine the overall pace of negotiations and will be taken into account for the decision to open or close new clusters or chapters.
• predictability, positive and negative conditionality: more clarity on what the EU expects from the candidate countries and consequently what are the positive consequences of the progress achieved or the negative consequences associated with the lack of progress. 

Applying the above four principles, this stage of the EU accession negotiations includes the following sub-stages: 

1. Formal start of the EU accession negotiations. First Intergovernmental Conference on the candidate country’s accession to the EU represents the formal start of its negotiations for accession to the EU accession. At this Conference, the EU presents the so-called Negotiating Framework for the candidate country’s EU accession negotiations. It is realistic to expect that preparation of the Negotiating Framework for Ukraine’s accession negotiations will be a very demanding political task for the EU member states in circumstances of the candidate country’s territorial integrity question.
2. Screening. During this process, the European Commission and the candidate country examine the candidate country’s legislation in each area of the acquis. The main objective of this process is to determine where, why and how the domestic legislation needs to be adapted to the community law. The European Commission reports to the Council on the screening of each chapter and may propose the opening of negotiations or conditions to be met – so-called benchmarks – prior to opening of the negotiations.
3. Meeting “opening benchmark” conditions. Within this sub-stage, a candidate country has to meet the so-called “opening benchmarks”. They are not stipulated for all the negotiating chapters but only for those ones that are considered as more demanding.
4. Negotiations. Once “opening benchmarks” are met for all the negotiating chapters within a thematic cluster, a candidate country is invited to present its negotiating positions for all the chapters being part of that very cluster. The response of the EU (common position draft) is drafted by the European Commission but must be approved by the Council. “Closing benchmarks” are an integral part of the EU common position. Closing benchmarks focus on implementation, capacity building, alignment of procedures, and further alignment with EU funds and cohesion policies.
5. Provisional closing of the negotiations on each of the negotiating chapters. For the (provisional) closure of the negotiations on each of the negotiating chapters, a candidate country must prove a high degree of harmonization with the EU standards on that chapter and a sufficient track record in implementation of the EU standards in this chapter.
6. Conclusion of the EU accession negotiations. The process of negotiations (that typically lasts several years) is completed when a candidate country and the EU reach an agreement on all the negotiated “chapters”. During the concluding round of the EU accession negotiations, the exact date of the accession is determined, and based on this date the financial conditions of accession to the EU must be calculated and negotiated. The time period between the end of the negotiations and the completion of all the required ratification processes usually takes 1.5-2 years.    

After completion of the EU accession negotiations and before the full membership

1. Drafting and approval of the accession treaty. Once negotiations are completed, the accession treaty is drafted. It must be approved by the EU Council with unanimity and by the European Parliament through a consent procedure. 
2. Ratification of the accession treaty. After the accession treaty is signed, it must be ratified by the parliaments of both the candidate country and all the EU Member States.
3. Accession to the EU. This is a moment when the acceding country becomes a full EU member state with all its rights and obligations.

Conclusion

A year and a half ago, there was a high probability that Ukraine would not receive a candidate country status if it had decided to formally apply for membership in the EU. The February 2022 Russian aggression on Ukraine and its geopolitical implications changed this narrative profoundly. In a matter of months, Ukraine received the candidate status and today it is well on the way to start the EU accession negotiations by the end of this year.

At this very moment, it is of utmost importance for Ukraine to demonstrate its capacity and political will to implement the reforms efficiently, both in terms of their quality and speed. On the other hand, the EU should continue its highly proactive approach towards Ukraine’s EU accession demonstrated over the last year with opening of the accession negotiations in the months to come. It is also important for the EU to operationalize its 2020 Enlargement Methodology with a clear roadmap and timeline of the negotiations as well as with tangible incentives for gradual integration.