Ukraine might get a chance to reduce queues at the border with all its Schengen neighbours and get one step closer to a barrier-free Europe.
"Our countries are sisters. We are relatives. And there should be no borders or barriers between us. The Ukrainian and Polish nations have not been mentally separated for a long time. So we agreed to implement this shortly in the relevant bilateral agreement." With these words, during a visit of President Andrzej Duda to Kyiv, Volodymyr Zelensky announced a "historic" joint customs control with Poland.
Crossing the border with friendly Poland, which provides Ukraine with unprecedented support in the war with Russia and accepts millions of refugees, is supposed to become simpler and faster.
Ukraine will have a chance to reduce queues at the border with all its Schengen neighbours and become one step closer to a barrier-free Europe.
Fast, cheap, transparent
Congestion of Ukraine's border infrastructure, especially on the Ukrainian-Polish border, is not breaking news.
Even before the war, truck traffic there exceeded the total capacity of existing checkpoints by 25%. If you look at the traffic of individuals, at least three checkpoints were almost full: Krakivets, Smilnytsia, and Yahodyn; two more, Shehyni and Ustyluh, worked with congestion.
During the war, the problem of congested borders has become particularly acute. Thousands of refugees lined up in queues, trucks with humanitarian aid or exports. Nowadays, the increased volumes of export can be delivered only by land.
You can optimize the border crossing in different ways: build new checkpoints (which are expensive, time-consuming, and difficult), arrange an electronic queue (the war has stopped the process), build dirt roads (expensive and time-consuming), or introduce joint border and customs control, which the Ukrainian authorities have chosen.
This option assumes that border and customs authorities of neighbouring states conduct joint checks of passengers and goods simultaneously at one checkpoint. In our case, this should accomplish the Polish side of the border. Why not the Ukrainian side? Because the border infrastructure is traditionally "not great."
Everyone familiar with joint control in practice says that it has exceptional benefits for all participants.
First, it reduces the check time. According to a study by "Europe without Barriers" in 2018, checkpoints with joint control were up to two and a half times faster. The Ministry of Infrastructure estimates the acceleration at one and a half times.
Second, joint control optimizes resources, as it requires less equipment and space. When the border has become a key hub for humanitarian aid with many crossings, we can see staff shortages today.
Third, it also helps against corruption, smuggling, and illegal migration. The logic is simple: when the border control of two countries unites, it is much harder to bribe them.
After all, Ukraine knows the benefits of such control from its own experience.
The very idea of the joint border and customs control is not something revolutionary.
This policy is one of Ukraine’s commitments under the Association Agreement - Section 3 on border issues and management.
This experimental model was used during the European Football Championship in 2012, which Ukraine and Poland hosted together. The procedure fully justified itself, and many liked it.
Besides, there are currently four checkpoints on the Polish-Ukrainian border where the joint control is already in action:
Ustyluh - Zosin, Smolnica – Krościenko, Hrushiv - Budomierz, Uhryniv - Dołhobyczów. However, not all of them are fully operational. Two of them are open only either for entering or departing Ukraine.
According to the Ukrainian proposal to Poland, joint control will extend to all eight road checkpoints on the Ukrainian-Polish border.
But why hasn't this been done before?
Why does this principle not work with other EU countries?
Legislation of Discord
The joint control with Poland at these four checkpoints became possible because the countries agreed on it in 2002.
Poland was not part of the Schengen area then. All agreements on crossing the border were conducted at the bilateral level. Poland joined Schengen in 2017 and had to implement the principles of the Schengen Borders Code.
For Ukraine, a third party, the European Commission, appeared in the negotiation process, which was to involve other checkpoints. All rules in the joint control agreement had to be agreed upon at the bilateral level and then transferred to Brussels for approval.
The same principle of approval is applicable in similar negotiations with Slovakia and Hungary, who are also Schengen members.
Same as with Poland, the negotiations with them were unsuccessful.
The reason is the incompatibility of Schengen and Ukrainian legislation, namely the transfer of "problematic" citizens. Ukrainian law stipulates that if a Ukrainian border guard finds out that a person at the border has legal problems, he shall hand the person over to Ukrainian law enforcement.
The Schengen Borders Code considers the territory of a joint checkpoint as a place where only the laws and regulations of an EU member state apply.
According to these norms, Ukrainian border guards shall transfer a person to an EU country, even if the person was checked at the Ukrainian part of the joint checkpoint. And this already contradicts the legislation of Ukraine, in particular Article 25 of the Constitution. The Ukrainian side also believes that such a rule of the Schengen Code could use politicians who tried to evade justice in Ukraine and seek protection in other countries.
Interestingly, there is a precedent for overcoming the deadlock - the agreements between Hungary and Serbia. Their situation is a reflection of Ukraine's, as Hungary is a member of the EU and Schengen, and Serbia, like Ukraine, is not.
Budapest and Belgrade agreed to take this problematic issue out of the agreement within separate instructions to the border customs officers.
During the Ukrainian negotiations with Hungary and Slovakia, the negotiators offered different options for resolving the issue. They suggested removing this rule from the agreement altogether or replacing it. Hungary and Slovakia did not seem to mind.
But when the agreement text reached the European Commission, it traditionally opposed it. Brussels believed that the project did not comply with Schengen legislation and turned it down.
Reach out to Brussels
As of today, neither Ukraine has changed its Constitution nor the Schengen Code has changed. So why is there any reason to believe that the agreement will come to an end?
The idea of a joint border received support at the highest level - the presidents of Ukraine and Poland. Both countries have demonstrated a willingness to dialogue on this matter and an ability to negotiate.
They showed that they can conduct bilateral agreements at a record pace after years of cooling in their relations. And this is true: the president of Ukraine has requested to submit the necessary documents in a very short time. So that the prime ministers can soon agree on them at a bilateral meeting.
The political situation has obviously changed. Ukraine is not only fighting against Russia and receiving sincere support from European capitals and Brussels but has also applied for membership in the European Union.
We can debate whether candidate status can help Ukraine gain approvals and agreements with Poland. But we should admit that the European Commission's assessment of Ukraine's accession and joint control arrangements take place in the same Brussels offices.
In addition, a significant part of the questionnaire for candidate status is about border management. If the European Commission evaluates the membership application positively, it recognizes that Ukraine also meets the criteria for border control.
Therefore, there is hope for the "green light" from the European Commission.
However, this does not solve a bigger problem.
It turned out that EU policy does not contain the tools that can offer an effective solution to the two legislations' incompatibility. It is crucial because the same problem will arise with the Hungarians, Slovaks, and then the Romanians when they join Schengen.
Ukraine cannot constantly count on extraordinary events to get the "green light." It needs united legal instruments.
If the joint border works out, it will show that the EU finally trusts Ukraine. Trust is the key to the EU.
Khrystyna Bondareva, "European Pravda" journalist
Iryna Sushko, Executive Director of "Europe without Barriers"
The article is a part of the project "Multicomponent public support for reforms in the field of integrated border management" implemented by the NGO "Europe without Barriers" within the project "EU Support in Strengthening Integrated Border Management in Ukraine (EU4IBM)" funded by the European Union and implemented by the International Center for Migration Policy Development (ICMPD).