Take Down the Wall. And Make Russia Pay for It

EU law allows admitting Ukraine into the Union immediately. This is not only the moral imperative, it would also not require any Treaty revision and mark a return to the classical approach of the first EU accession: accession first, full taking on of the acquis later, with lengthy transitional periods.

The special situation requires such a change in approach as well as distinguishing Ukraine from all the other candidate countries. Deep differentiation is already the case, as Ukrainians enjoy free movement under temporary protection, which would be absolutely untenable for the Union not to prolong.

Immediate accession upon victory will not be enough, of course: Ukraine will require a super Marshall plan to ensure speedy reconstruction. This is doable: the seized – say confiscated – “Russian” money, a bit short of a trillion by now, will be enough, with the EU hopefully topping this amount.

A rebuilt prosperous Ukraine in the European family is what the values of the Union unquestionably require: appalling Yugoslav failures throwing a shadow on the Union’s mission of peace in Europe cannot be repeated again. Most importantly, there is clear political will and mass mobilization of European citizens throughout the continent to help Ukraine. This help is empty words, without welcoming Ukraine as a full member of the Union, as President Zelensky requested.

Special cases require special treatment

The aggressive war started by Putin in Ukraine has reminded the European Union of its raison d’être as nothing before. The question what the Union is ultimately for is now more urgent than at the fall of the Berlin Wall: the scale of the tragedy added clarity and focus, enabling greater mobilization. President Zelensky, who is unquestionably the moral leader of the democratic world today, has sensed this moment of truth wonderfully: the request to admit Ukraine in the Union without any delay coming from him is not knocking on the Union’s door. Rather, it is a reminder to all Europeans what the Union was created for and pledged to uphold. Peace in Europe has been the goal and the focal point of the Union’s self-understanding since the very first day of integration. This objective comes first. The economic unity, the four freedoms, and all the rest of the acquis are but the tools to achieve this objective. The history of EU enlargement law teaches us that accession to the Union is an extremely long and difficult process and the length of accession preparations has only been increasing. The accession of Ukraine has already started: the Council asked the Commission to prepare an avis, awaited in a matter of months, thus granting Ukraine the candidate country status. Yet President Zelensky’s request for immediate admission has been snubbed as unrealistic. This perspective is flawed: Ukraine can and should be admitted immediately after the war is over.

Indeed, admitting Ukraine to the Union is as realistic as the destruction of Ukrainian cities, mass civilian deaths and 2 million refugees in Poland alone is realistic. The two make part of the same reality, and this reality is far removed from the business as usual the Union and its Member States are accustomed to, demanding different thinking and different speeds of action. Moreover, what President Zelensky is asking for is perfectly possible under EU law. Twenty years of studying EU Enlargement Law taught me one thing: Article 49 TEU, which governs this process, allows for Ukraine to be admitted in the Union immediately after Ukraine’s victory in this war, right upon the signing of the peace Treaty. To claim the contrary more often than not amounts to a misuse of the law in order to justify one’s political position, which goes against the raison d’être of the Union. EU law is on Ukraine’s side.

EU Enlargement Law is on Ukraine’s side

Article 49 TEU establishes clear conditions of admissibility, which Ukraine meets with no difficulty, as it is unquestionably a European state (and a member of the council of Europe) committed to the values of Article 2 TEU, including democracy, the rule of law and the protection of human rights (it is paying with blood for this commitment). Exact modalities of accession is a somewhat different matter. While the Treaties mention negotiations between states with the position of the European Council taken into account, the customary practice of organization of accessions has been different: the Commission has played the key role here, establishing a handful of principles and approaches not found in primary law and generating humongous amounts of poorly-drafted paperwork on the candidate’s “readiness” to accede largely unrelated to the principled political decisions on enlarging the Union, while providing a bit of window-dressing of respectability, what I have characterized as ‘The Failure of Conditionality’ in a book-length analysis. Some recent upgrades notwithstanding, this system of years and years of shallow Commission’s vetting failed to prevent rule of law backsliding it was precisely designed to avoid. In other words, the approach based on the overt lack of trust between the Union and the candidate countries, requiring overwhelming pre-accession adaptations followed by lengthy transitional periods essentially has failed to prevent autocratic legalism and attacks on EU values post-accession. Moreover, its precise modalities are not required by primary law.

In the face of the failure of the ex ante pre-accession adaptation approach, the Court of Justice and other institutions rushed to remedy the enforcement gaps resulting from this failure. This ultimately made it possible to say what many have been thinking all along: ex post transposition during the transition periods in the face of tightened post-accession enforcement scrutiny could work at least as well as the currently dominant approach, if not better. In other words, rather than negotiating with Ukraine while it is being rebuilt and monitor / enforce legislative change to bring about acquis and formal values compliance, what happened with Poland, Hungary, Romania, Croatia and all the other most recent additions to the Union – the new approach could be to secure full commitment only on the matters of principle: full acceptance of the acquis, with an emphasis on the unquestioned acceptance of the values of the Union as the core part of its law, and a promise to create institutional capacity – followed by immediate accession and lengthy transitional periods, potentially different in all the fields, to allow for the acquis to the fully operational in 10, or, if necessary, 20 years. This was, essentially, the approach taken in the context of the first enlargement.

Crucially, Article 49 TEU allows for both approaches. Failure to complete adaptation by the end of the agreed-upon transitions should trigger suspension clauses and clearly formulated penalties, which would make part of the Treaty of Accession. Although inertia and reduced capacity of self-criticism makes the Commission favor the first, its abundantly clear failure makes it imperative to start speaking about the second seriously, making it most appropriate, in particular, in the context of the special case of Ukraine.

Indeed, the case of Ukraine is special, which allows dismissing the arguments that it is ‘jumping the queue’ ahead of all the current candidates. Special cases require special treatment and Ukraine already relies on it: Ukrainian citizens today enjoy more rights in the EU than Poles, Estonians or Hungarians did for seven years after their accession. EU’s responsibility for peace in Europe and the promotion of the values on which our continental unity is built does not stop at embracing Ukraine just as the EU has embraced its people – the Ukrainian refugees.

The new Marshall plan paid with Russian money as part of the accession trajectory

Ukraine will need a significant Marshall plan to ensure speedy reconstruction. Here too, business as usual cannot apply. Having admitted Ukraine the Union will have to take full part in rebuilding the country ravaged by the Russian tanks and rockets. The rebuilding and a truly unprecedented inflow of capital will coincide with the the application of the post-accession transitional periods used by Ukraine to take EU law on board.

The good news is that the Russian money frozen in the West – an absolutely unprecedented amount – should be enough actually, assuming ‘frozen’ in fact means ‘confiscated’: what EU officials are starting to speak openly about. The rights of the nationals of pariah states tend to be downgraded to the junk level of former colonials: the usual operation of passport apartheid, which the Union has so far fully adhered to. While the rule of law guarantees behind the taking of the assets of those Russian nationals who have no relation to the war in Ukraine have to be significantly improved, as Mr Chichvarkin has also argued in the Guardian, the funds seized from the Russian Central bank and the businesses and individuals connected to the government should already be an amount significant enough to start speaking about the speedy reconstruction of Ukraine seriously: Russian money will thus help Ukraine no matter what Putin’s ideas could be in this regard, which is good news. Effective deployment of the Marshall plan drawing on the funds confiscated from the aggressor and hopefully topped up with EU’s own money as a clear expression of solidarity should be woven into the preparation of Ukraine to a most speedy accession in the history of the Union.

Drawing on the special case of Ukraine to rethink EU’s approach to values

The special case of Ukraine, rebuilt and forward-looking, once it enters the Union, will need to push the EU to think about how to reform its failing enlargement law and the concrete approaches to be applied to all the other candidate countries. The customary law as applied is not only prone to disastrous political manipulation unrelated to the candidate country’s actual progress towards Article 2 TEU values and the rest of the acquis, but also produces members, like Poland and Hungary, openly at war with the values Ukrainian soldiers and civilians are literally dying for. Arguments along the lines ‘but we are not killing Ukrainians at the border as we killed the Afghanis!’ are obviously part of the problem we are discussing, as they showcase the chronic failures to apply the law equally to all, which are endemic in the EU legal context.

My last point is thus very simple: in agreement with Prof. Pech and other colleagues, it is necessary to underline that helping Ukraine and welcoming it to the EU should not give a carte blanche to the abusers of what the Union stands for, making the fight for basic legality in failing rule of law systems like Poland more acute than ever. In the face of the basic reality that the values of Article 2 are binding law and the situation where the Polish state is at war with this values, just like Putin’s Russia is, even if in a more cunning way, any argument suggesting that EU enlargement law has been a success is unrelated to the reality on the ground: the failure of conditionality, which has been predicted at the moment of Polish and Hungarian accession, is a fact, not an opinion. Ukraine, while benefitting from a radically renewed approach to regulating accessions, could thus also help the Union to upgrade its failing pre-accession mechanisms crucially oblivious of the values on which the Union and the Member States are founded.