Ukraine's progress towards the European Union Membership: Brief facts and further steps
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On 23 June 2022, the European Council granted candidate country status to Ukraine1.
This decision built upon the European Commission Opinion on Ukraine's application for membership of the European Union (the "EU")2. The latter assessed Ukraine's political and economic state of play as well as its capacity to fulfil the obligations of membership.
According to the Commission Opinion, Ukraine is well advanced in reaching the stability of institutions guaranteeing democracy, the rule of law, human rights, has continued its strong macroeconomic record, and is demonstrating a noteworthy resilience, with macroeconomic and financial stability remaining ensured also after Russia's invasion in February 2022.
Nevertheless, the decision to grant the status of a candidate country includes reservations, and accession negotiations will not start immediately. Further steps will much depend on Ukraine's capacity to meet the Copenhagen and Madrid criteria3.
To this end, the Commission specified seven conditions which Ukraine has to fulfil. The first assessment of Ukraine's efforts in that direction is already planned for the end of 2022.
Current achievements of Ukraine in getting closer to the EU membership
Ukraine has been following its path towards the EU for many years, having signed the first cooperation agreement in 1994.
The most significant legal framework for deepening political ties and economic integration between the EU and Ukraine was entered back in 2014 – the EU-Ukraine Association Agreement4 (the "Association Agreement") with the Deep and Comprehensive Free Trade Area as its integral part. In 2017, the Association Agreement fully entered into force.
The Association Agreement reflects the Copenhagen criteria and facilitated the European integration of Ukraine by pursuing reforms and approximation of the country's legislation to the EU acquis.
As recently reported, 63% of the Association Agreement have already been implemented5. In 2021, Ukraine's exports to the EU increased by 47.9% y-o-y to € 24.1 billion. Imports from the EU to Ukraine increased by 22.5% y-o-y to € 28.3 billion6.
To combat corruption, Ukraine adopted laws and established new institutions such as the High Anti-Corruption Court of Ukraine (the "HACC"), the National Anti-Corruption Bureau of Ukraine (the "NABU"), the Specialised Anti-Corruption Prosecutor's Office (the "SAPO"), the National Agency on Corruption Prevention (the "NACP") and the Asset Recovery and Management Agency (the "ARMA"). Since 2019, the HACC rendered 72 judgements, out of which 39 are final sentences, including against members of parliament, judges, prosecutors, members of local councils and heads of state-owned enterprises7.
The judicial reform to strength trust in the Ukrainian courts is still ongoing. Following the transparent re-selection of all Supreme Court justices, Ukraine is now in the process of reforming the High Council of Justice (the "HCJ") and re-launching of the High Qualifications Commission of Judges of Ukraine (the "HQCJ").
For this purpose, an Ethics Council was established in 2021 with the participation of international experts (retired judges from the USA and the UK as well as the former Prosecutor General of Estonia)8. This Council is expected to help determine whether aspiring and current members of the HCJ meet the criteria of professional ethics and integrity.
The case law of the European Court of Justice (the "ECJ") also plays an important role for Ukraine. The Association Agreement and a number of other laws obligate Ukrainian authorities to take into account the ECJ practice in some cases9. The ECJ itself was in fact dealing with a case concerning a dispute between a Ukrainian company and Moldova under the Energy Charter Treaty (even though none of these countries was even a candidate to the EU at the time)10.
Ukraine is also party to a number of other agreements with the EU, such as the Common Aviation Area Agreement, agreement on Ukraine's association to Horizon Europe and the Euroatom Programme. The country has passed deoligarchisation law, is conducting public administration reform, and continues to implement digitalisation.
This, of course, is not an exhaustive list of developments that played a role in securing candidate country status for Ukraine.
Next steps for Ukraine
In the context of candidate status, the European Commission set seven groups of requirements for Ukraine. Once they are met, the European Council will decide on the further steps.
A big portion of those requirements concern the finalisation of candidates selection and appointments to the HCJ, the HQCJ, the SAPO and NABU as well as the Constitutional Court of Ukraine. It also covers further implementation of the already adopted deoligarchisation law, and finalisation of a number of other reforms.
Since Ukraine attained candidate country status, it has made further progress in achieving the goals set by the European Commission.
In particular, in August 2022, the Parliament of Ukraine appointed two members of the HCJ recommended by the Ethics Council. Earlier, in July this year, the Head of the SAPO was appointed. At the same time, Ukraine's potential membership also depends on the EU's capacity to integrate new members. The European Commission will assess the impact of Ukraine's accession on EU policy areas at a later stage.
However, even now, Ukraine may expect further Pre-accession Assistance in the form of, in particular, grant schemes and infrastructure investments that are available for EU candidate countries11.
Recently, Ukraine has also signed agreements with the EU on cooperation in the customs and tax spheres, and became part of the Digital Europe Programme.
As a result, Ukraine receives access to funding and support for projects in such areas as supercomputing, artificial intelligence, advanced digital skills, and usage of digital technologies across the economy and society12. In October 2022, Ukraine will join Conventions that will simplify the movement of goods between Ukraine and EU Member States, and other common transit countries13.
In addition, Ukraine has already presented its Recovery Plan which includes 850 projects to be implemented over the course of ten years. Among them are plans on energy independence and the Green Deal, infrastructure projects and further digitalisation14.
To attract new investments, Ukraine launched the Advantage Ukraine programme with an investment menu and tools to contact the Ukrainian Government directly and find out more about the opportunities15.
The European Commission has also presented plans to establish a Ukraine Reconstruction Platform that would determine the priority areas selected for financing, coordinate the financing sources and their destination to optimise their use, including investment support and guarantees for private sector investments16.
1 European Council conclusions, 23-24 June 2022
2 The European Commission Opinion on Ukraine’s application for membership of the European Union
3 Criteria for membership set by the European Council in Copenhagen in 1993, as well as in Madrid in 1995
4 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part
5 According to the Report On Implementation of the Association Agreement between Ukraine and the European Union for 2021 prepared by the Ukrainian Government
6 According to the Association Implementation Report on Ukraine for 2021 prepared by the European Union
8 More information on the Ethics Council activity
9 For instance, Art 153, 264 of the Association Agreement, Art 2(11) of the Law of Ukraine “On Electricity Market”, Art 2(2) of the Law of Ukraine “On Natural Gas Market”
10 Case C-741/19, Republic of Moldova v Komstroy LLC
11 More information on Pre-accession Assistance
12 More details are available here
13 More details are available
14 More Information is available here
15 More details on the programme
16 Communication: Ukraine relief and reconstruction
Olena Solonska (Legal Intern, White & Case, Prague) authored this publication
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