Kyiv will take the Albanian path to EU membership: details of Ukraine's negotiating framework emerge

Wednesday, 13 March 2024 — , European Pravda
The European Commission has set out the rules for Ukraine’s future EU accession

Another milestone has been passed on Ukraine's path to EU accession negotiations.

After some hesitation and attempts to delay the process, the European Commission has finally provided member states with the draft negotiating framework – the regulation governing the forthcoming accession process. It will be identical for both Ukraine and Moldova, with one slight difference that will make life easier for the Moldovans.

European Pravda has analysed the document and found it to be mostly "copy-pasted" from the negotiating framework used for two Balkan candidates – Albania and North Macedonia (apart from the addition to the Ukrainian framework of a safeguard against the arbitrariness of states such as Hungary).

We have also found out more about the plan going forward for opening accession negotiations.

For now, our framework is still a draft that must be approved by the member states, most likely in June – Kyiv has received firm assurances of this from its partners. Before that, the EU will attempt to change the methodology of voting on enlargement, significantly reducing the number of decisions that need to be approved by consensus.

The approved negotiating framework also makes it clear that the main criteria that will determine Ukraine's progress are the level of democracy, respect for European values, and combating corruption.

The negotiating framework and the path to membership

In mid-December 2023, the EU made a significant political decision: Ukraine had met the initial conditions and it was time to open official EU accession negotiations. But the process would not start immediately. Several procedural "half-steps" needed to be taken.

The EU enlargement process is tightly regulated, which makes the EU very different from, for example, NATO, where the main condition for enlargement is the willingness of other states to accept a candidate into the club. The European Union, though, is primarily a single market and a political and economic union with supranational bodies, and it requires potential member states to meet a set of criteria – otherwise the single market would collapse. Unfortunately, this provides member states and their representatives in Brussels with procedural opportunities to block or delay the start of accession negotiations with a candidate.

In simple terms, the procedure for accession negotiations is as follows.

The European Commission begins screening – examining the extent to which Ukraine's laws align with the EU acquis. Meanwhile, the European Commission approves the draft negotiating framework which will regulate the negotiations. (This is roughly where we are now.)

Next, after consultations with Ukraine, the Council of the EU (all member states) approves the negotiating framework unanimously.

Following this, the first meeting of the Intergovernmental Conference – the new bilateral body that will subsequently conduct the negotiations – takes place. Ukraine and the EU will finally approve the negotiating framework at this conference.

The actual negotiations are conducted in parallel with regard to all 33 chapters of the accession treaty. So to begin negotiations on the alignment of, say, Ukrainian transport legislation to EU norms, the transport chapter is opened. The negotiating framework sets out some important rules governing the opening of chapters, but subsequently each chapter is opened by a separate EU Council decision.

When Ukraine has duly completed the negotiations on all 33 chapters, and the EU has agreed to close all the chapters, confirming Ukraine's readiness for membership, the accession treaty is signed – subject to the unanimous consent of all EU members.

Hungary’s forthcoming EU presidency: the clock is ticking

The draft negotiating framework prepared by the European Commission and distributed to member states is confidential, but European Pravda has obtained a copy of the drafts for Ukraine and Moldova.

The only substantive difference that makes life a bit simpler for Chișinău is that Kyiv will be obliged to provide an official Ukrainian translation of the entire EU acquis as soon as possible and to train translators to do further work when Ukraine joins the EU. There is no such requirement for Moldova because Romanian is one of the EU's official languages, so the European Commission already provides Romanian translations of all legislation.

The other provisions of the framework are identical for Ukraine and Moldova. The European Commission has decided not to reinvent the wheel: essentially, the Ukrainian document has been copied from the latest framework currently in force for Albania and North Macedonia.

European Pravda also has a copy of the "Albanian/North Macedonian" regulation. We compared it with the document for Ukraine and Moldova and found only a few different provisions in 20 pages of text.

An important detail: Brussels approved Albania’s framework in 2020, and it was fundamentally new at the time. But the experience of Albania and North Macedonia is not encouraging. The EU did not agree to open negotiations with them until 2022, two years after the framework had been approved.

Kyiv and Brussels are convinced that Ukraine will not face such a long wait.

"There are two scenarios," a senior EU official told European Pravda on condition of anonymity. "The less realistic one is that we will start in March. The more realistic one is that the intergovernmental conference will take place in June, after the European elections."

Ukrainian Deputy Prime Minister Olha Stefanishyna also told European Pravda that Ukraine's accession negotiations should officially start in the first half of the year, before the end of Belgium's EU presidency.

"We expect the negotiating framework to be approved and negotiations on Ukraine's accession to begin during the Belgian presidency, in accordance with the agreements reached," she said as she welcomed the European Commission's decision on the negotiating framework.

The end of June as the deadline is no accident, as Hungary will take over the EU presidency on 1 July.

Many in Brussels believe, though, that the Hungarians themselves do not want the Ukrainian intergovernmental conference to fall within the Hungarian presidency. It is far from certain that Budapest will be able to stall it and postpone the start of Ukraine’s negotiations until 2025, as on this matter Orbán does not have a single ally. So ultimately it may turn out that Orbán or his representative will have to formally chair the conference at which Ukraine will open accession negotiations, which would be a political humiliation for him.

Furthermore, EU co-leaders Ursula von der Leyen and Charles Michel and Belgian Prime Minister Alexander De Croo (the leader of the presiding state) have personally promised the Ukrainian leadership that they will do everything possible to start negotiations by the end of June.

Is Ukraine like Albania? Pros and cons

The choice of the "Albanian" framework has both advantages and disadvantages.

One advantage for Ukraine is the certainty that negotiations will start in principle, and this will happen very soon.

The European Commission appears to have decided to provide the strongest possible guarantee that its proposal will be approved without unnecessary discussions, problems or delays, and without adjustments, or significant ones at least. If a fundamentally new negotiating framework had been drafted for Ukraine, that could have led to disputes within the EU about its content.

Instead, both Kyiv and Brussels now say that Plan A is to open negotiations in June.

The disadvantage for Ukraine is the lack of ambition inherent in the old approach to negotiations.

Ukraine is keen to join the EU as soon as possible, with government leaders even declaring that they intend to "complete the negotiations within two years". Ukraine had intended to open all the negotiation chapters simultaneously to speed up the process. But the framework drafted by Brussels gives no grounds to hope for lightning-fast negotiations. In particular, the idea of opening all the chapters at once can be safely abandoned. The philosophy of the framework envisions a gradual move towards membership.

Experts said from the beginning that the government's "Napoleonic" plans to complete the negotiations in two years were unrealistic. Nevertheless, some acceleration would indeed be helpful.

But does the choice of the "Albanian" framework mean that Ukraine is guaranteed to get bogged down in negotiations for decades, as has happened with several Western Balkan states?

Fortunately, it doesn’t. For one thing, further changes to the process are currently in preparation to facilitate Ukraine's European integration.

There are also no guarantees of success: everything will depend on the reforms that Kyiv is required to carry out.

Democracy, anti-corruption, public administration

Since Croatia's accession in 2013, no other Balkan state has come close to joining the EU, largely due to the fault of the candidate states themselves. They all got stuck reforming their legislation. And unless you do that, accession is impossible.

The Ukrainian framework also emphasises several key areas of reform, without which progress in other areas will carry little weight.

Of the 33 negotiation chapters, five are of the utmost importance, and they are grouped together in a cluster called Fundamentals. These are the chapters entitled Judiciary; Justice, Freedom and Security; Public Procurement; Statistics; and Financial Control (the latter chapters are crucial for the functioning of the EU single market). Also included in the Fundamentals are criteria that are not the subject of separate negotiations but will undergo thorough scrutiny by Brussels, particularly the state of democracy and public administration.

The negotiating framework clearly states that negotiations on the Fundamentals cluster will be opened first and closed last, when Ukraine is ready for accession in terms of all the other requirements.

In addition, Ukraine will need to draft and obtain EU approval for three roadmaps (reform plans with assessment criteria) on the following:

- Judiciary and justice, freedom and security

- Functioning of democratic institutions

- Public administration

And this is not just a formality.

These are the three areas of reform on which the negotiation progress as a whole will depend.

The European Commission has proposed – and EU member states are sure to approve this – that everything depends on the progress made in implementing these fundamental reforms, particularly with respect to reforming the judiciary and the rule of law.

Subsequent chapters not directly related to the rule of law will not even be opened unless Ukraine succeeds in making the agreed progress on the fundamentals.

In addition, Ukraine will have to prove to Brussels that it is determined to combat corruption in each specific area.

As the negotiating framework puts it, "Anti-corruption policy will be integrated into all relevant negotiation chapters. Accordingly, negotiations on a chapter will not be considered closed until sufficient anti-corruption policy has been implemented in that specific area."

Another important detail: the framework very clearly provides for Ukraine to be penalised in the event of any backsliding in reforms on the fundamentals – right up to the freezing of negotiations on individual chapters or as a whole. This gives the EU serious leverage over Kyiv in the event of any problems.

"The negotiating framework is standard, and the key for Ukraine now is for it to be adopted by the European Union and for negotiations to open," Olha Stefanishyna emphasised in her comment to European Pravda.

How to get round Hungary

Of course, we cannot ignore the elephant in the room, which is that even if all the reforms are carried out perfectly, the principle of consensus in the EU remains. Orbán and others still retain their veto, and there is no hope of that changing. There is no prospect of EU reforms abolishing the principle of unanimity in the foreseeable future, and Ukraine needs to join the EU before that happens.

One of the few amendments made to Ukraine’s negotiating framework compared with Albania’s should make Ukraine's life easier.

Previously, the presiding state also had the right to brief other EU member states on a candidate's progress. It is now proposed that this should be left to the European Commission. Given the complexities of our relations with certain neighbours, for us this is a very good initiative.

That doesn’t mean we can forget about Hungary's existence.

But there is one initiative that could reduce the level of made-up claims from our neighbours.

Next week, the EU General Affairs Council will discuss a German-Slovenian initiative that proposes to amend the enlargement methodology so that the decision of a qualified majority will be sufficient to open negotiation chapters.

This decision will be of extraordinary importance for Ukraine. It will mean that Orbán, even if supported by a couple of other states, will not be able to block the start of negotiations with Ukraine in any sector. These amendments have a good chance of being adopted, since the decision to close each chapter and finally admit a country to the EU will still require unanimity, thus protecting the rights of current member states.

This would also give a real boost to the negotiations of other candidate countries.

However, it is impossible to guarantee the initiative's success.

Sergiy Sydorenko,

Editor, European Pravda

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