Poland and Hungary, later joined by Bulgaria, Slovakia and Romania, decided to unilaterally halt the imports of grain and other food products from Ukraine to protect their domestic farmers. The European Commission quickly announced that “trade policy is of EU exclusive competence and, therefore, unilateral actions are not acceptable”. At the same, however, the Commission’s spokesperson also considered that it was “too early” to comment on the legal implications of the Member States’ actions. Instead, the Commission adopted a pragmatic approach. It quickly announced a new support package for EU farmers affected by the increased supply of Ukrainian agricultural products and proposed additional measures to ensure the transit of Ukrainian grain exports to destinations outside of the Union. Significantly, it also added that this package “is subject to Member States lifting their unilateral measures”. This creates a very cynical situation, in the sense that an infringement of EU law may be instrumental to reach a better deal.
The Commission’s reaction must be understood against the background of Russia’s war against Ukraine. In this context, it is deemed crucial to avoid internal divisions and the offer of a set of measures to address the concerns of the complaining EU Member States is an attempt to quickly solve the issue. At the same time, however, the disrespect for key principles of EU law by certain Member States is largely ignored. This form of Realpolitik on behalf of the Commission sets a dangerous precedent for the functioning of the European Union. In essence, it leads to a form of reversed conditionality where EU Member States acting in violation of their EU Treaty obligations are offered certain concessions in order to stop their infringement. This is what apparently happens in the Ukrainian grain imports saga. Through their recourse to unilateral measures, the concerned EU Member States put pressure on the Commission to act quickly in line with their own desires. It is a slippery slope in the sense that breaking the normal legal and procedural rules seems to pay off.
The duty of sincere cooperation
EU Member States are entitled to raise concerns about the potential negative implications from increased Ukrainian grain imports. The crucial precondition, of course, is that this happens with respect to their EU law obligations. In this specific situation, Regulation 2022/870 is of particular significance. With this legal instrument, the EU introduced temporary ‘autonomous trade measures’ (ATM) supplementing the trade concessions applicable to Ukrainian products under the EU-Ukraine Association Agreement. This implies, amongst others, a one-year suspension of tariff-rate quotas and import duties on Ukrainian agricultural products. These measures are intended to economically support Ukraine in the context of Russia’s military aggression. In order to protect the EU market against undesired disturbances, the Commission monitors the impact of the Regulation. If necessary, safeguard measures such as the reintroduction of customs duties can be adopted and EU Member States may request the Commission to investigate the existence of serious difficulties for Union producers. What is crucial, of course, is that the Commission remains in charge. In view of the EU’s exclusive competence in the field of trade and the safeguard provisions specified in Regulation 2022/870, the adoption of unilateral trade bans by EU Member States contradicts their duty of sincere cooperation as defined in Article 4(3) TEU.
Arguably, the entire fuss about the import of Ukrainian grain could have been avoided easily. On the initiative of Polish Prime Minister Mateusz Morawiecki, the Prime Ministers of the five concerned EU Member States wrote a joint letter to the European Commission at the end of March 2023. They called, amongst others, for additional EU funding to support their domestic agricultural producers and suggested that “the Commission should approve [their proposed modifications] as soon as possible (as emergency measures).” In a first reaction, the Commission acknowledged that further assistance may be necessary, in addition to the first support package worth € 56,3 million which had already been reserved for Bulgarian, Polish and Romanian farmers. However, without waiting for the Commission’s full response, Poland was the first to introduce an immediate import ban on 15 April 2023, followed soon by Hungary and the other concerned EU Member States. The Polish measure was adopted a few days after widespread farmers’ protests in the country. With upcoming elections later this year, the domestic political context may thus explain the sudden recourse to unilateral measures but, of course, this does not justify the infringement of EU law obligations. Instead of discussing the consequences of increased Ukrainian imports internally in accordance with the procedural rules foreseen under Regulation 2022/870, the Commission was publicly put under pressure to act swiftly.
One would expect an unambiguous statement that this form of blackmail politics has no place in a Union based on the rule of law. However, the Commission preferred to proceed with the preparation of a new support package as if nothing had happened. This may be seen as part of a broader trend of forbearance, as analysed by Keleman and Pavone in their seminal study ‘Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union’. Their key message is that the enforcement of EU law on the basis of infringement actions against EU Member States is subordinated to the Commission’s policy objectives. The cautious reaction about the possible legal implications of the Member States’ unilateral actions in comparison to the quick offer of a new set of policy measures to address the Member States’ concerns point in this direction.
Implications for the future
The Commission’s new set of measures may help to appease the row about the import of Ukrainian agricultural products in the short term but the long-term implications cannot be underestimated. At least, the perception is created that Member States’ violations of EU law may be instrumental to obtain certain policy objectives – in this case additional support measures for the domestic agricultural sector. The abolition of an illegal situation, i.e. the withdrawal of unilateral Member State measures, is used as a bargaining chip in a cynical game of power politics.
Moreover, the Ukrainian grain import saga reveals that future EU accession negotiations on the Common Agricultural Policy (CAP) chapter of the acquis promise to be very difficult. If the EU is taking the Ukrainian membership application seriously, this implies that the integration of Ukraine into the CAP is to be prepared carefully. As suggested by Silvia Bender, German State Secretary at the Federal Ministry of Food and Agriculture, a structural reform of the CAP is needed before the start of the next funding period in 2028. The current discussions surrounding the import of Ukrainian agricultural products may be a wake-up call to put this issue on the EU’s (enlargement) agenda.
Discussions about agriculture have always been a sensitive issue in the history of the European integration process. It suffices to refer to the empty chair crisis of 1965 or the discussions about the United Kingdom’s rebate when it was still a member of the Union. Past enlargement rounds to the South and the East also created tensions with respect to agricultural products. The famous Spanish strawberry case, brought as an infringement action of the Commission against France in response to the French government’s passive reaction to farmer’s actions against the import of agricultural products from other Member States, remains an important point of reference in EU law textbooks. It recalls the significance of the Member States’ duty of sincere cooperation as a cornerstone of the EU legal order. Even though the issues at stake in the current discussions about the implications of increased Ukrainian agricultural imports on the EU market are of a fundamentally different nature, the Commission missed an opportunity to remind the concerned Member States that respect for the legal rules matters. This is the Commission’s role as guardian of the Treaties, which should not be forgotten in its search for compromise solutions in a difficult political context.