Fast-Tracking Ukraine

Whatever the outcome of the current crisis, Ukraine needs to join the European Union as fast as possible. Neither Trump nor Putin can veto this. The EU, for long lukewarm about widening and deepening, must take rapid steps to facilitate Ukraine’s entry. This will involve revising the terms and conditions of accession.

Although Volodymr Zelensky has seen EU membership as second best to NATO, he well knows that his country’s sovereignty now depends on the European Union. As an EU Member State, Ukraine will be a full equal among the comity of democratic nations. Joining the EU will be the basis of Ukraine’s economic recovery. EU citizenship will extend to all Ukrainians the guarantees of the Charter of Fundamental Rights. Ukraine will have the full protection of EU and international law and will benefit from EU solidarity when under attack or misfortune.

When Zelensky first applied to join the European Union, on 28 February 2022, he asked for a “new special procedure” to facilitate membership. The European Council accepted Ukraine, along with Moldova, as a candidate country. At 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 2023, the European Council decided to open accession negotiations and established a Ukraine Facility to assist that purpose. Hungary’s Prime Minister Orbán left the room to allow his colleagues to make their decision by unanimity, in full respect of Article 235(1) TFEU. What motivated Orbán to abstain was not entirely clear, but it is obvious that the Putin apologists among EU leaders still have plenty of opportunity to block Ukraine’s membership.

The risk of veto

Ukraine’s bid is not helped by the tougher methodology adopted by the EU in 2020, entitled, apparently without irony, 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. Prime mover behind the reform was Emmanuel Macron who faced re-election in France. Commission President von der Leyen claimed that the revised system would give Member States more of a political steer over enlargement. That is true.

As things stand, unanimous decisions of the Council are required for the opening and closing of six clusters incorporating all 33 chapters of the accession portfolio. The Commission may advise the Council to halt or even reverse the process if strict conditions are not met. Von der Leyen commissioned some “pre-enlargement reforms and policy reviews”, which are due to be published this April. Against this background, the first Intergovernmental Conference on Ukraine’s accession took place under the Belgian presidency of the Council on 25 June 2024. It established an official Negotiating Framework which doubled down on the tougher 2020 methodology.

The Council, acting by unanimity on a proposal of the Commission, lays down benchmarks for the purpose of screening. As and when Ukraine demonstrates progress on the “fundamentals”, it will be phased into the internal market and sectoral policies. 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.

It does credit to the Kyiv government that, to date, the Commission and Council have declared themselves satisfied at Ukraine’s progress towards accession, even under martial law. But the prevalence of the veto means Ukraine can yet be held hostage by any single EU government for any reason whatsoever. Recognising that risk, at the Munich Security Conference both von der Leyen and António Costa, President of the European Council, spoke of the need to accelerate Ukraine’s membership. So how might the process be speeded up?

Suppressing the veto

The first step must be to reverse the unorthodox incursion of unanimity into Council decision making on enlargement. Von der Leyen, backed by Costa, should now insist that each Commission recommendation as to how to proceed with Ukraine 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 brought back into line 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 is to ratify the accession treaty according to its own constitutional requirements. In the meantime, Member States are expected to cooperate sincerely to accomplish enlargement. And as Christophe Hillion recalls, the Council is intended to act throughout by QMV.

On probation

A second reform involves reviewing the concept of graduated integration. Where Ukraine clearly fulfils the obligations of membership it should be allowed a vote in EU policy matters as soon as the accession treaty is signed and not made to wait as a mere observer until the end of the accession process. Nowhere is Ukraine’s inclusion more important than in the executive 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. Ukraine should be admitted quickly to relevant bodies including the Political and Security Committee and EU Military Committee. Kyiv will contribute from the outset to the costs of any CSDP mission in which it is engaged. It will also be a partner in Berlin Plus arrangements to utilise NATO facilities for EU initiatives (without the US). “Nothing about Ukraine without Ukraine”.

When it comes to law making, a Ukrainian minister should be able to vote in the Council (without a veto) on any legislative act that is to apply to it within a chapter where Ukraine has already met the accession criteria. Ukraine should be assimilated gradually with full democratic rights over the whole acquis, but some aspects of EU law making will exclude Ukraine until such time as – in the ghastly phrase – it has “done its homework”.

Draft the treaty

Thirdly, the EU and Ukraine should set themselves the ambitious timetable of drafting the accession treaty by December 2025. The shift in Council procedures away from unanimity to reverse QMV could be incorporated in the treaty as one of those “conditions of admission” referred to in the second paragraph of Article 49. The treaty would also lay out the transitional institutional arrangements for the probationary period, along with a mechanism to finalise the whole process.

Ratification of the accession treaty will not be quick, during which phase the normal screening of the enlargement chapters will continue. The intervening time will allow Ukraine to return to constitutional normality after the ending of martial law and for majorities for enlargement to be assembled in national parliaments or referendums across EU 27. The target for completion would be the elections to the European Parliament in 2029.

The EU treaty will be based on Ukraine’s international boundaries as they were in 1991, but the acquis will be suspended in 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.

Some objections will be raised that the candidacy of Ukraine receives privileged treatment. But Europe is at war and the frontline is Ukraine and Ukraine is first in the queue. The addition to the Union of a large and dynamic Member State with a democratic purpose and geopolitical cause may be the injection Brussels needs. Who among the EU’s homegrown nationalists will dare to wield a veto against Ukraine, jeopardising its very existence as a sovereign state?