Ukraine Failing Its Own Strategy To Meet EU Requirements Swiftly

Monday, 14 November 2022 — , European Pravda

Kyiv has been desperately fighting to start formal EU accession negotiations in previous months. The Ukrainian government got outraged by the fact that the European Commission had postponed by a year the assessment of Ukraine's progress in the implementation of the so-called "Seven requirements" defined by the European Commission. Without their fulfillment, it is impossible to start accession negotiations.

Kyiv saw in this an attempt to slow down its progress toward membership: it started negotiations with member states to circumvent this problem, etc.

The biggest obstacle is how Kyiv acts itself.

Having just obtained candidacy, the Ukrainian authorities took a good pace in fulfilling the EU's requirements. At the same time, President Volodymyr Zelenskyy publicly promised that Ukraine would complete the "Seven requirements" by the end of the autumn. The "deadline" was eventually postponed to the end of 2022. But is it real?

A consortium of Ukrainian think tanks and analysts (including the editor of "European Pravda"), led by "New Europe Center," did what the European Commission does not want to do yet: it has analysed the implementation of "Seven requirements." And it isn't very reassuring. It turns out that after a quick start in the summer, Ukraine has slowed down the pace in the autumn: the cautious progress in fulfilling some criteria is leveled by regression in respect of others.

Although not in all cases, the slowdown is the government's fault. It now seems virtually impossible to complete the criteria within the stated time frame.

If Ukraine does not reconsider its attitude toward its obligations as a candidate state, it will become much more difficult to speed up the EU accession. Besides, Kyiv should understand that some of the plans and promises it declares to the EU are unrealistic. This creates inflated expectations, which Ukraine then "disrupts," creating an unnecessary problem that can be avoided.


Step forward and back two

In late August, before Independence Day, experts analysed how Ukraine fulfilled the requirements, which is mandatory to start accession negotiations.

The conclusion then was quite optimistic. Only two months after the EU granted Ukraine the candidate status and defined the list of criteria, Ukraine had already made significant progress in fulfilling them. If the pace were maintained and accelerated, it would be possible to accomplish the work by the end of the year and start demanding from the EU to start accession negotiations.

The previous two and a half months have become a period of pause.

The expert panel has agreed that Ukraine has shown tangible progress only upon one requirement: the reform of the Constitutional Court. In August, it was an absolute outsider. It has started to progress, but the main work is still ahead. The others show mixed signals - from small positive changes to reasons for concern.

If we speak in the language of numbers, then in 2.5 months, Ukraine's overall score has increased only from 4.4 to 4.7 (0 means no implementation, and 10 - full implementation of the criteria defined by the European Union for Ukraine with the candidate status).


This trend is not promising. With such "progress," the plans of the Office of the President and the government for quick accession are meaningless.

Currently, Ukraine is convincing the European Union to establish an assessment mission as soon as possible. But if it came to Kyiv today, Ukraine would receive an assessment that it still needs to fulfill the requirements. Such critical reports are not tragic. They are even helpful for identifying problems. However, this is definitely different from what Kyiv sought when it fought for an official assessment and claimed that it would complete the implementation of the criteria in the autumn.

The most worrying thing is that for some requirements, it has a reverse movement; for one, the situation has worsened compared to the summer.

Is everything really bad? To make it short: "not yet, but we need to act. Urgently."

In fact, we cannot name the trends fatal, and the regression of reforms is only selective, not systemic. But it exists and is unacceptable. Following the unprecedented mobilisation of everyone to obtain candidate status, this issue has ceased to be perceived as a priority.

However, the speed of Ukraine's progress toward membership is "normal" by the standards of the European Commission. Brussels is used to slow work with candidate states following the Balkan wave of expansion. It can even praise Ukraine for what it has achieved. But this is unacceptable for Ukraine.

First, such a slowdown means that Ukraine can forget the intentions announced by the official Kyiv to fulfill the seven EU requirements this year. These ambitions of Kyiv seemed too bold even at the very beginning. There was hope that the parliament, the president, the government, and other state structures would mobilise efforts and do what seemed incredible.

Secondly, it will reduce the level of trust of European partners in Ukraine's assurances that it is ready to implement EU legislation at a record pace within the framework of membership negotiations. We heard criticism at every corner, but Kyiv replied that it would be able to break European traditions and reform them quickly and efficiently. The European colleagues now will be able to answer: if you do not fulfill your own promises regarding the pace of implementing the reforms, how can you talk about the rapid implementation of thousands of legislative acts of the Acquis communitaire as part of the membership negotiations?

The longer Ukraine thinks about how to overcome this crisis - instead of passing the necessary laws - the less likely it is that the EU will, in principle, be ready to talk about an accelerated procedure for Ukraine.

However, we should remember that in some fields, the European Union has contributed to slowing down Ukraine, taking its time to provide the necessary conclusions regarding the laws that Kyiv is planning. For example, the EU's media law requirement. Back in August, Ukraine adopted the first reading draft and sent it to Brussels for examination, but it has to wait more than two months for their answer.

Seven necessary steps for Ukraine' future

We will explain to you in more detail about each of the seven requirements and the "pain points" that prevent the authorities from taking steps to start negotiations on EU accession.

Media: a step forward and back one

Rating: 6 points (back in August 6)

The requirement to align Ukraine's legislation with the EU audio-visual media services directive is number six on the list of "Seven requirements." We outline it as #1 on our review list since, but what happened in this area is very illustrative.

Ukraine had to "adopt a law on media that will align the legislation with the EU Directive on audio-visual media services." At the same time, the requirement description is the following: "tackle the influence of vested interests by adopting a media law that aligns Ukraine's legislation with the EU audio-visual media services directive and empowers the independent media regulator." The EU added this requirement in response to restrictions on broadcasting opposition TV channels. In Brussels, they did not directly advocate their interests but instead decided to push for a reform that would reform the sector as a whole.

At first, the idea of ​​the EU worked.

On August 30, the Verkhovna Rada adopted in the first reading draft law No. 2693-d on media, which was backed politically by the EU. Expert public and media organisations discussed the draft law and substantially revised it before its adoption in the first reading.

Moreover, the EU promoted this project for several years but faced opposition from the business lobby.

It seemed like Ukraine had a perfect advocacy story when its movement to the EU let it push a dated reform that was already pending. However, in order to submit the document for the second reading, the parliament had to receive a "green light" from Brussels. The document was immediately offered for joint analysis by the European Commission and the Council of Europe... but Ukraine had to wait until November for an answer. Only now has it reached the Verkhovna Rada, opening the way to the possible adoption of the law.

In any case, even the first reading should have raised the performance level to 7 points.

But simultaneously with efforts to fulfill this requirement, the authorities made a U-turn.

In early November, the newly created broadcaster with non-transparent financing, "We - Ukraine" was allowed to produce a joint telethon, although TV channels close to the opposition ("Espresso," "Piaty," "Priamy") were denied their participation in the marathon. This selectivity can negatively affect the political assessment of the European partners, leveling the achieved progress.

Therefore, the experts could not ignore it.

As a result, the fulfillment of this requirement remains at the level of 6 points out of 10.

Constitutional court: limited positivity

Rating: 3 points (before 0)

This is the only EU requirement where Ukraine had performed positively since August when it was at 0 points.

Since then, several significant changes have occurred.

On September 6, the Verkhovna Rada adopted draft law No. 7662 on the reform of the Constitutional Court in the first reading.

The draft is questionable at a certain point: for example, it stipulates that the Advisory Group of Experts, which will elect judges, should consist of international experts and representatives of the authorities, and not civil society representatives (as VC recommendation provided).

However, it is important to understand how the VC will treat the project now and whether it will revise its recommendation. The position of the Council of Europe and VC, whose decision is currently pending, needs to be clarified.

The same thing happened here as with media: having taken a positive legislative step, the authorities simultaneously demonstrated their readiness to violate the principles on which their draft law is based.

One of them, Olga Sovhyria, was appointed after the European Commission decision (July 27) in violation of the Constitution (no open competition took place) and the law "On the Constitutional Court of Ukraine" (individuals having a representative mandate on the day of appointment cannot be appointed as the Constitutional Court judges).

Conclusion: very limited progress.

Judicial reform: Changes for the worse

Rating: 6 points (before 7)

Ukraine met the decision of the European Commission with good achievements. Laws on the reform of the High Council of Justice (HCJ) and the High Qualifications Commission of Judges (HCJC) were adopted back in 2021, and they remain to be implemented. On August 15, the parliament elected two honorable members of the Supreme Council of Justice from among the candidates recommended by the Ethics Council, which led to a high assessment of Ukraine's progress on the first "candidate-check" study.

However, since then the situation has changed for the worse.

On August 19, the congress of scientists, violating the procedure, elected a member of the Supreme Council of Justice, whose integrity is very questionable. The Ethics Council recommended 16 candidates for eight vacancies under the quota of the Congress of Judges. Only four have no claims of integrity in the public domain. Written decisions have yet to be made public. Online broadcasts of interviews have recently been closed. There is no way to verify whether candidates have disproved self-doubt. All this led to a decrease in the rating.

Meanwhile, the competition for the High Qualification Commission of Judges continues. The competition commission will only analyse the candidates after the beginning of 2023 for objective reasons.

Anti-corruption: progress with nuances

Rating: 6 points (before 6)

The previous 2.5 months have shown positive and negative events that affect the fight against corruption, including top-level corruption, which the EU expects from Ukraine.

After the appointment of the head of the Specialised Anti-Corruption Prosecutor's Office in July (meeting the first part of the EU recommendation), experts noted significant progress in strengthening the fight against corruption: effective investigations into top corruption improved.

However, they still have to elect the director of the National Anti-Corruption Bureau (NABU). And we got some disturbing news: On September 30, discriminatory law No. 8003 entered into force, which introduces new requirements for the director of NABU and artificially narrows the number of willing candidates. Lawyers who, after February 24, went abroad for personal reasons and stayed there for more than 21 days cannot participate in the competition.

In general, Preparation for the competition continues.

NABU's competitive commission includes strong international experts, taking into account the experience with the selection of the head of the SAP, and the voting system corresponds to the best practices.

Money laundering and organised crime: unchanged

Rating: 5 points (before 5)

The good news is that the government, together with the European Commission, has identified the steps necessary for implementing the first part of the recommendation: amendments to legislation in terms of FATF.

As "European Pravda" reported, it was not obvious to Ukraine what exactly Brussels was waiting for. An explanation was sent to Kyiv that the EU expected amendments to the legislation in six key areas.

Ukraine has already adopted some of these laws: for example, in September, Law No. 6320 on business beneficiaries; also, in September, parliament ratified the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism.

However, not all decisions of the parliament correspond to the recommendations of the EC. Thus, in November, during the adoption in the second reading of the draft law No. 8008 on the prevention and combating of money laundering, MPs supported harmful amendments that weaken the financial monitoring of public figures contrary to FATF standards and the requirements of EU Directive 2015/849.

As for the law enforcement sector, the Office of the Prosecutor General of Ukraine (OPG) has already developed the Criminal Justice Reform Concept 2022-2030, which includes most of the issues the recommendation covers. The Ministry of Internal Affairs (MIA) has developments regarding public security sector advancement – an extension of the Ministry of Internal Affairs Development Strategy 2017-2020.

Since August 1, a working group in the Office of the President has been working on the Strategy for the post-war reform of public administration in Ukraine.

According to experts, the government does not have the political will to adopt the prepared documents. A global strategic vision of system development was proposed elsewhere.

Oligarchs: as bad as before

Rating: 2 points (before 2)

To implement this recommendation, Ukraine should put into practice the so-called "anti-oligarchic law," taking into account the forthcoming opinion of the Venice Commission (VC) on the relevant legislation.
Although the law was adopted in 2021, Kyiv appealed to the VC. Ukraine is still waiting for the conclusion of the VC, which was originally planned to be adopted in December 2021. The next steps should have been planned taking it into account. However, consideration of the document in the VC has been stopped for now.

Despite this, the "anti-oligarchic law", not yet analysed by the VC, has entered into force and has a real impact.

Due to the law, Ukrainian businessman Rinat Akhmetov gave up his media business, and ex-president Petro Poroshenko also formally withdrew from ownership of his media assets. Both could have fallen under the decision of the National Security and Defence Council regarding the assignment of the oligarch status.

Ukrainian and international experts' caveats: the existing legislation is not systematic, fully thought out, and sometimes contradicts other regulatory documents.

Legislation on national minorities: do not show to anyone

Rating: 5 points (before 5)

Even though the authorities proposed a non-standard draft law, "On National Communities" (read more in the article "Ukraine's Actions to Start EU Accession Negotiations: Detailed Plan and Analysis"), in fact, nothing has changed in the 2.5 months since the preliminary inspection.

The draft law "On National Communities" was revised taking into account preliminary comments from the EU, received in August 2022. At the end of September, the parliament wanted to put the bill to a vote. Still, at the call of the expert community, they decided to wait for the conclusion of the European partners: the head of the Verkhovna Rada announced that the draft law would be forwarded to the European Commission and the Council of Europe, whose conclusions had not been received as of the end of October.

However, the VC, which is the key institution of the Council of Europe for this draft law, did not receive it.

The caveats of specialised experts remain unchanged: elements of rights' narrowing (unclearness of certain provisions regarding the scope of rights of national minorities and indigenous peoples), unsettled terminology that is absent from the Constitution and other legislative acts ("national communities"), lack comments from specialised international organisations.

It is necessary to wait for the comments of international institutions as well. Currently, the authorities still need to start this process. In addition, it does not consider the criticism of Ukrainian experts and does not submit the draft law to the Verkhovna Rada. However, if the approach to the performance of this work does not change, there can be no question of quick implementation of the candidate's "Seven requirements," even in theory.


Author: Sergiy Sydorenko
"European Pravda" editor

Participated experts:

- Mykhailo Zhernakov (DEJURE)
- Oleksandr Marusiak, Roman Smaliuk, Yevhen Krapyvin (CPLR)
- Olena Halushka, Anton Marchuk (CPC)
- Andrii Borovyk, Kateryna Ryzhenko, Oleksandr Kalitenko (Transparency International Ukraine)
- Oksana Romaniuk (IMI)
- Vadym Misky ("Detector Media")
- Sergiy Sydorenko ("European Pravda")
- Iuliia Tyshchenko (UCIPR)

Coordinated by the "New Europe Center"

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