Yellow Light for Ukraine: EU Commission Decision on When EU Accession Negotiations Will Begin

Wednesday, 8 November 2023 — , European Pravda
Credit: AFP/East News

On 8 November in Brussels, the European Commission (EC, the EU’s executive body) adopted a long-anticipated but still interim decision regarding the start of accession negotiations with the EU. 

Why is it referred to as an "interim" decision? Where are the "buts"? Here are some explanations.

First, the European Commission's decision has to be confirmed by the member states in December. Potentially, any member state could block it. Hungary, for instance, has a legal right to do so.

However, there is also good news. Currently, the process is moving in the right direction. It seems likely that the decision in December will be positive, without any veto.

Second, even with a "green light" in December, Ukraine will still be obligated to fulfil several preconditions for meaningful negotiations to start. It was known in advance that there would be preconditions in the European Commission's decision. This was announced by European officials and sources, and in recent days there was active "horse-trading" in Brussels regarding the nature of these preconditions for Ukraine

The final decision by the European Commission brought surprises – both pleasant and not so pleasant.

A very important positive thing for Ukraine is that, despite the preconditions, the technical process of preparing for accession will begin immediately after the December decision, without waiting for Ukraine to be "greenlit" by the EU again.

This is a special procedure that accelerates Ukraine's path to membership.

However, the substantive part of the accession negotiations will not begin until Kyiv fulfils those conditions. Therefore, for now, this historic and overall positive decision by the European Commission gives Ukraine not a "green light" but an "yellow light" for further progress towards membership.

The bad news is that the list of conditions set by the European Commission includes not only expected (but unpleasant) standards pushed by Hungary. The new political whim by the EU, which ought not to be among its requirements for Ukraine, is also a cause for concern.

The final approval of this list must come at the EU summit [in December – ed.]. Kyiv needs to try to persuade member states to change their mind within a month. Otherwise, Ukraine will have to comply with it, potentially opening a Pandora's box.

What was decided in Brussels?

Details are certainly important, but sometimes it's necessary to take a step back. An overall assessment of the decision taken on 8 November indicates that it is undoubtedly positive for Ukraine.

The European Commission recommended that the member states (those who make the final decision) initiate EU accession negotiations with Ukraine. This is a victory.

Public support by Ukrainians for the EU truly matters, because it serves as a guarantee that politicians in Ukraine will be compelled to implement the necessary reforms for accession.

Furthermore, the report repeatedly underscores that Ukraine is already demonstrating its commitment to future membership, showing that reforms can be implemented even in times of war.

This is the conclusion drawn by the European Commission.

"In light of the results achieved since June 2022 under the political criteria, within the framework of the seven steps and beyond, the Commission considers that Ukraine sufficiently fulfils the criteria related to the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, set by the Copenhagen European Council in 1993, provided it continues its reform efforts and addresses the remaining requirements under the seven steps. On this basis, the Commission recommends that the Council opens accession negotiations with Ukraine."

This is why Ukrainian officials involved in European integration did not hold back their emotions on Wednesday.

Yes, this decision still requires approval at the EU summit and at the EU ministerial level. However, the majority of member states have already publicly declared their unconditional support for Ukraine's path to EU membership or their willingness to vote in favour of it if the European Commission gives a positive recommendation.

It is also important to emphasise that the above quote means, in EU terminology, the start of negotiations without any preconditions. In June 2022, Ukraine was granted EU candidacy. The phrase "provided it continues its reform efforts... and addresses the remaining requirements" pertains to the next steps towards membership.

Shortcut for Ukraine?

First, let's briefly discuss the next stages along Ukraine's path to EU accession.

The EC decision is not final. It must be approved (either in its current form or in an updated version) by the EU summit, scheduled for 14 December.

This decision will determine the criteria that the European Commission will monitor. Its assessment will take place at the following summit, in March 2024.

If the assessment in March 2024 is positive, the EU will try to expedite the process, potentially in April 2024, by holding an intergovernmental conference, where member states will approve a technical document called the "negotiating framework." After that, the negotiations will begin. However, the exact dates are not yet known, because every decision requires consensus.

The European Commission has already approved and will not reconsider the approach that no decision on a "negotiating framework" will be considered without the requirements being fulfilled.

And here's the important positive news.

Until now, the EU had been following a slow, step-by-step procedure. Approval of the "framework" was the first step. Its absence meant a complete blockade of negotiations. This is what Albania and North Macedonia experienced: they received a political decision to start negotiations in March 2020 but had to wait for the "framework" approval for over two years. Even then, they have not made significant progress, and the "screening" process, which involves checking compatibility of domestic with EU law, took another year. The first negotiation chapters opened in December 2023.

Kyiv has always argued that such a slow pace is unacceptable.

Ukraine is committed to fulfilling the EU's conditions quickly. Moreover, most European capitals support the idea that the artificial slowdown of enlargement should be relegated to the past.

The European Commission has taken the new reality into account.

They have created a procedure for Ukraine's accession that never existed before.

The aim is to ensure that the approval of the negotiating framework, which depends on fulfilment of the requirements, does not hinder Ukraine's progress as significantly as it did in the Balkans. The Commission has decided to transition from a "step-by-step" to a "parallel" approach in the initial negotiations.

The intermediate, technical stages will begin in December as soon as the political decision is made at the EU summit.

"The Commission stands ready to start preparatory work, in particular the analytical examination of the acquis (screening) and the preparation of the negotiating framework," according to the officially approved document. "On this basis, we have recommended today that the Council open accession negotiations," confirmed Ursula von der Leyen at a press conference on 8 November.

However, a consensus is required at the December summit in order to move forward. So, Ukrainians, who are used to hearing hostile statements from the Hungarian government, including threats to block negotiations, may wonder whether Viktor Orbán will disrupt all of Ukraine's plans.

Fortunately, there are grounds for a cautiously optimistic forecast.

Brussels does not give Ukraine a 100% guarantee, but it asserted in closed-door talks that an agreement with Orbán is likely to be reached, as numerous sources in Ukraine and the EU informed European Pravda. Moreover, the Hungarian prime minister has repeatedly demonstrated that he is willing to compromise on his "principles" in exchange for financial inflows from the EU. There are probably calculations for a similar scenario now.

However, Ukraine also has its work cut out.

New Brussels requirements

Four requirements are listed in the EC decision that Ukraine must meet by March 2024 in order for accession to be greenlit. Ukraine's Parliament has to:

- enact a law proposed by the government increasing the staffing cap for the National Anti-Corruption Bureau of Ukraine;

- remove from the law on corruption prevention the provisions restricting the NACP's powers to continued verification of assets that have already undergone the verification process and limiting NACP's powers to verify property acquired by declarants before joining the public service, without prejudice to the rules applying to national security during wartime;

- enact a law regulating lobbying in line with European standards, as part of the anti-oligarch action plan;

- enact a law addressing the remaining Venice Commission recommendations from June 2023 and October 2023 linked to the Law on national minorities, also addressing the Venice Commission recommendations linked to the laws on State language, media and education.

The first two points do not raise significant issues. Ukraine was aware of these two conditions but has not yet fully met them. The draft laws have been drawn up. The Ukrainian Parliament can agree on their final version if they wish to.

However, the last two points need more attention. According to European Pravda, there were diplomatic negotiations on national minorities with Kyiv and its closest partners. Ukraine insisted on more specific terms. However, the point remained vague.

This gives Hungary (and the Commissioner for Enlargement, Olivér Várhelyi, appointed by Hungary) the opportunity to both praise and criticise Ukraine's compliance with this condition, depending on the political situation. For Orbán, this "game" with the European Commission is financially beneficial, as he can leverage blocking Ukraine and receive financial advantages in return. Ukraine must compromise with Hungary in order to satisfy it.

As for the status of the Russian language, in June, the Venice Commission recommended strange and impracticable requirements for Ukraine, including some relating to the "protection of Russian speakers". These provisions can never be implemented, and Brussels would have to turn a blind eye to them. This has indeed happened. The European Commission has already stated that it will not monitor the rights of the so-called "Russian-speaking minority".

However, the third requirement is truly dangerous.

It sets a precedent that could pose problems for Ukraine in future negotiations. This requirement is to make membership negotiations dependent on whether Ukraine passes a lobbying law.

This requirement is explained in the EC report as a measure to reduce the influence of oligarchs in Ukraine. An anti-oligarch condition had been included in the "seven steps" by the EU for Ukraine in June 2022. A draft law on this matter does exist. It was drawn up by the National Agency on Corruption Prevention (NACP) and is criticised by many stakeholders. However, it is much more critical that such a requirement was not part of the EU's previous position.

There are no "European standards" for lobbying, even in the EU, to which the European Commission refers. There is no European Regulation or unified approach among EU countries.

Ukraine thus faces a situation where it is presented with a requirement that is not based on European standards and was not part of previous requirements for acceding to the EU. 

If Ukraine decides to tolerate this approach, similar requirements may appear regularly during negotiations. Therefore, tacit compliance with this seemingly simple condition could lead to significant undesired consequences. 

The Ukrainian negotiating team must do everything it can to prevent this from becoming EU practice right from the beginning.

Sergiy Sydorenko,

European Pravda, Editor

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