Immediate EU membership for Ukraine? In conversation with Dimitry Kochenov

“We need to think about the political benefits that capitalizing on having the most popular country in the world among the members of the European Union would bring to Europeans on both sides of the current border, on the Ukrainian side, and also on the Union side.”

On 28 February, in the early days of Russia’s invasion of Ukraine, President Volodymyr Zelensky officially applied for membership of the EU. On 18 April, it was confirmed that Ukraine had completed the membership questionnaire, with President Zelensky expressing his hopes that Ukraine could become a full candidate state ‘in weeks’. This interview, conducted by Rule of Law section editor Oliver Garner, considers the feasibility of immediate EU accession for Ukraine with Prof. Dimitry Kochenov, Professor in the CEU Legal Studies Department and Lead Researcher in the Democracy Institute Rule of Law work group. Dimitry has recently argued that immediate accession for Ukraine is feasible under the EU Treaties for Verfassungsblog, and in an article co-authored with Ronald Janse for EU Law Live.

Oliver Garner: My first question is why do you think Ukraine’s immediate accession to the EU is actually necessary?  Would this be purely symbolic, or do you believe it will actually be required for the post-war reconstruction of the country and its economy?

Dimitry Kochenov: That is a wonderful question. I think that, as long as we give Ukraine and other European countries a chance to apply, this is something that is definitely the right of non-members under Article 49 TEU. The right answer would be to ask the Ukrainians, so to me the sufficient reply is ‘because they want it’. And they want it for quite clear reasons because now, in the context of a terrible conflict, it is absolutely clear that the choices of Ukraine have been made, albeit probably not to the extent that they would have wished for them to be made in advance. So, for now, Ukraine is definitely part of Europe; it is definitely one of the countries that risks the most at the moment in defense of the basic European values including self-determination, democracy, and Rule of Law, and the basic idea that we should honor the ideal of international law as well as the law itself. I think that a forceful restatement of our support, as well as obviously absolute condemnation of the conflict that Russia started, could be accompanied by an offer of membership of the EU.

As I have argued in two small pieces – one building on the other – legalistically there are no obstacles to this kind of membership, which means that now this question is entirely in the political field. It is up to the Member States to see how far politically they are ready to go in recognizing the obvious stakes of the game for Ukraine and for Europe as such.

I would like to remind everybody that the EU was designed as a way to promote peace, and as an institutionalized approach to international cooperation which aims precisely to exclude conflicts like the one that we are witnessing in Ukraine today.

Offering Ukraine a place in Europe would be absolutely in line with the founding mission of the European Treaties, where peace played a significant role.

Probably the last point on this is that the literature on the EU as a promoter of peace has been overwhelmingly critical of the EU’s role in the context of peacekeeping and peace promotion. Andrew Williams especially made the criticism of this aspect of European integration in a very vocal way in his book The Ethos of Europe (Cambridge University Press, 2010), because he saw a huge discrepancy between the internal peaceful co-existence of Member States of the European Union, and the conflicts at the borders or outside of the European Union –  in particular he had (the former) Yugoslavia in mind. The track record that he traces, and the legal instruments that he looks at, obviously point in the direction that, until now, the EU has largely failed as an external peace promoter. We could interpret the Treaties in such a way that they actually demand that the EU take an active stance in the export of its values and respecting the law, including international law.

The Rule of Law is a general idea that underpins the EU as a promoter of peace. Offering Ukraine membership of the Union would be the first step towards righting its largely negative track record in terms of external peace promotion.

You argued in your answer that Article 49 of the Treaty on European Union does not bar immediate accession. In your blog-posts, you argue that the current practice of the EU of extensive pre-accession conditionality during candidacy may be regarded as ‘customary law’.  The condition for accession being a treaty concluded with the Member States, rather than the EU, suggests that the process sits somewhere between EU law and public international law. Do you think there are any arguments, either as a matter of EU law or public international law, that the existing custom of pre-accession conditionality may make immediate accession of Ukraine legally invalid, or is this purely a matter of politics?

Regarding ‘immediate’ accession, of course we need to insert a footnote –  what I meant is immediate accession after the active military stage of the conflict is over, because it would be highly problematic to speak about accession while the country is torn by war. I say this not as a signal for the admirable resilience of the Ukrainian state today, or as a signal of criticism of Ukraine, but simply as a practical matter. I think that politically and legally it would be impossible to find consensus at the European Union level on incorporating Ukraine before the war is won.

But, as many optimists would testify, we do usually believe that the good guys will be on the right side of history, so I have no doubt that Ukraine will emerge victorious from this conflict, but in which sense exactly they will be ‘victorious’ we do not yet know.

I would like to believe that, once that moment is upon us, this will be the right time for Ukraine to accede to the EU.

A detailed reading of accession law and its evolution demonstrates, as I have argued in the past, that the customary practice of allowing the European institutions to play a larger role than what Article 49 now allows for is probably rooted in the regulation of enlargements that preceded the current shape of the European Union. While Article 49 is directly related to its predecessors in the Treaty establishing the European Economic Community (Article 237)  and the Euratom Treaty, it is quite different from how enlargements were supposed to be regulated in the context of the Coal and Steel Community Treaty. Article 98 of that Treaty allowed the institutions to decide on pretty much all aspects of accession, so it was the Community that was enlarging itself, rather than the Member States of the Community who would be enlarging the Community.

In light of the fact that it was impossible to join only one of the pre-existing Communities, what my reading of the practice of enlargement teaches us is that the Member States, until the death of the Coal and Steel Community, had to somehow find a common denominator between how the EEC as well as Euratom was supposed to enlarge as opposed to how the Coal and Steel Community was supposed to enlarge. There was clear practice, and absolutely clear case law of the Court of Justice of the EU, that it was impossible to join only one of the Communities. So Article 49, as currently interpreted, is rooted in not only the predecessor instruments that we find in the EEC treaty, but also the practice of interpretation of those instruments in the context of granting overwhelming power to the institutions in the Coal and Steel Community Treaty. As it was applied in practice, enlargement was largely customary simply because it was impossible to reconcile these different instruments.

Now, at this stage of the European Union’s development, luckily we don’t have this problem anymore because there is only one provision – Article 49 TEU – which guides any interested party as far as the modalities of enlargement are concerned. That article does not need to be interpreted necessarily in the light of Article 98 ECSC because the European Coal and Steel Community is no more as it expired after 50 years. The application of the customary approach to enlargement law, which we have seen especially in the context of the ‘big bang’ enlargement that resulted in the accession of all the Central and Eastern European Member States, has taught us two things, and those two things potentially apply also to the Western Balkans as well as Turkey.

The first lesson from the customary approach to accession is the most fundamental one: it is impossible to claim that the pre-accession practices as applied actually resulted in guaranteed and coherent adherence to the values of the Union after accession.

We have Poland and Hungary, with Hungary now seeing its EU funds truncated precisely because of Rule of Law problems, and Poland seeing its fake courts proclaiming that Article 6 of the European Convention of Human Rights is against the national constitution. So a variation in the approach is common sense if we approach this from the point of view of European values.

All this is a direct result of the fact that we probably thought too much of the Union’s ability to steer the Member States in the context of pre-accession in such a way that they would remain fully adherent to the fundamental values of the EU. This is not a given, and what I have learnt from the Polish and Hungarian accession stories, which obviously involved long, painful, pre-accession exercises largely conducted by the Commission, is that pre-accession as it is currently applied does not guarantee adherence to the EU values. So, thinking about some other way of dealing with enlargement is obviously possible.

The second fundamental element here is that the pre-accession approach failed to result in a lasting and robust Rule of Law adherence regarding accessions themselves. The European Commission, together with the Member States, came up with this really complex system of pre-accession documents and assessments and different levels of recommendations which would follow each of the countries desiring to accede to the European Union. All this was done in absolute obliviousness of the political nature of the process, which means that the promises given by the Commission on behalf of the Union ended up not being not credible.

The failure of the pre-accession strategy is not only substantive, in terms of falling short of our expectations of generating lasting democracies which are adherent to the Rule of Law as Members of the European Union for many years to come after the enlargement; it also constantly showcases the simple fact that, although Article 49 is interpreted almost as a Rule of Law based pathway towards accession, in the end politics plays the most fundamental role.

When the Commission recommended on a number of occasions to open negotiations with Macedonia, for instance, the country was required to undergo a name change under duress and an absolute, absurd, and disproportionate abuse of power by one of the Member States, Greece. And still the Member States would not act on all the Commission’s promises.

The picture that was sold to the candidate countries of a Rule of Law-based accession ended up being a picture of random application of utterly arbitrary power by the Member States against the expectations of the candidate countries, and in direct contradiction of what the Commission was promising on behalf of the Union as a whole.

The failure of enlargement law and Article 49, as interpreted in the light of its predecessors in treaties that are no longer in force, has led us to the situation of a double failure – of substance and of the procedural level. I think that it would be absolutely untenable to continue with this, especially in light of the dramatic circumstances of what Ukrainians are experiencing today.

On that final point that you mentioned, and regardless of questions of legal validity, could immediate accession for Ukraine after the war ends be morally justified in the face of candidate countries, including the Western Balkans, who have waited patiently through pre-accession conditionality? As you mentioned, this includes the case of North Macedonia even going as far as changing the name of the country purely to assuage Member State concerns.  You stated that the process at present is somewhat arbitrary and capricious – would this not only be exacerbated if there were a different set of rules and timelines applied for Ukraine?

That is a wonderful question, but I wonder how much one can exacerbate the absence of the law that one witnesses today?  The European Union does not have any credible Rule of Law track record as far as enlargements are concerned, and obviously this is a huge problem both for the Union and for the candidate countries. In the current context, I think that the failure of conditionality is really something that marks the whole process, and indeed that was the title of a book I published on enlargement law more than 15 years ago. It was not the most popular book when enlargement was solemnly paraded as one of the main successes of the European Union, whereas in fact – by observing it carefully as a lawyer – it was possible to see the potential drawbacks and dangers of how it was regulated. 

I think that Ukraine needs to be distinguished from the current candidates for a number of vital reasons.  First of all, since we know that there is no Rule of Law that would actually guide pre-accession and accession, we need to keep political will in mind at every stage and at any time when we speak about enlargements of the European Union.

In this context, Ukraine is an unbeatable candidate to try to change the EU’s approach to how it enlarges in a radical fashion because Ukraine unquestionably is the most popular country in the world today.

The European Union preaches the most acceptable and popular values, which are also desired by President Zelensky as the values fully applicable to his country, including both the internal market in terms of openness and the space of law and opportunity to all, and all the values that we find in Article 2, including democracy and the Rule of Law – this is the western choice for Ukraine, there is no other choice at this point. I think that the European Union and Ukraine will both win as a result of finding sufficient political will for the Union to benefit from the popularity of Ukraine worldwide. This popularity of Ukraine will translate into a significant boost for the European project as such, as well as the popularity of the European project in the eyes of plenty of foreigners, and plenty of on-lookers. 

The second point is that it would simply be dangerous to apply the same strategy that was sold to Poland and Hungary to Ukraine today. 

Ukraine is a state that forcefully reaffirms the values of the Union while at the same time it has been attacked in the most brutal fashion, so it is impossible to expect Ukraine to function in the same way as we would expect a successful liberal democracy to function from the moment of winning the war onwards.

So, it is necessary to adapt to what we have on the ground given the political momentum that we also observe.

The third and final point is the money, and I think that money talks because what we saw in the big bang enlargement was a significant co-opting of the Member States to-be into the sea of European values with the use of the carrot through all the pre-accession funding. But all the pre-accession funding fades entirely compared with the amount of money available which could be put to good use immediately in terms of reconstructing Ukraine. The money that I have in mind, of course, is the money that has been confiscated from the Russians at all kinds of levels, so we could include the frozen assets of the Central Bank, we could include state companies, we could include all the banks that have been discontinued or taken over in the European Union and potentially elsewhere, as well as the money of the oligarchs. At this point, what we are witnessing is what Branko Milanović  – one of the leading economists thinking about inequalities in the world today – has compared with the seizure of the church lands [in England by Henry VIII]; it’s one of the biggest transfers of ownership in history, because what we are talking about is probably 600-700 billion Euros up to today. If we trust the assessments of relevant Ukrainian ministries in terms of the harm that Russia has inflicted so far on the infrastructure of Ukraine, and the rebuilding needs that Ukraine will be facing, we see much smaller amounts. We may presume that the seized money from different Russian sources will be seized forever. Here history is on our side, as it were, because all the historical precedents show that what is seized is in fact confiscated. We can discuss the problematic aspects of this, but this is good for Ukraine.

So, even if the European Union chooses not to invest out of its own pocket, it already has confiscated enough in order to build a different Ukraine, which would experience a radically boosted, radically different engagement in terms of funding from the EU compared with any candidate country ever in the history of the Union as we know it. Given that, it will probably be questionable whether the money confiscated from the Russians as a result of Russian state involvement in the war and the waging of this aggressive war in Ukraine will be earmarked specifically for Ukrainian reconstruction, rather than investment in Montenegro, or helping the Georgians, or Moldovans, which I think is just, but Ukraine has much bigger needs.  This is the third argument why I think Ukraine could be distinguished from all the other candidates today. Ukraine will show the way, also in terms of how the EU – it does not matter with whose money – is capable of meeting the financial needs of a total and absolute rebuilding of Ukraine’s infrastructure and institutions, and helping the Ukrainian economy.

You raised some very important and interesting strategic and material concerns and considerations in your answer there. My next question is perhaps pitched at a more abstract and theoretical level. We recently had a podcast with Dr. Signe Rehling Larsen which included her argument that the EU exhibits ‘varieties of constitutionalism’. She argues there is ‘post-fascist constitutionalism’ in Germany and Italy, ‘parliamentary sovereignty constitutionalism’ in the Nordic states and the UK when it was a member, and ‘post-communist constitutionalism’ in the Central and Eastern European Member States. If Ukraine were to accede, would it fit neatly into the category of post-communist constitutionalism, as with other Central and Eastern European Member States, or would it fall under a new category of ‘post-invasion reconstructed constitutionalism’?

I thought the closest comparison could be to France post-World War II, as this was another country occupied by a neighboring power. France then exhibited sovereigntist tendencies in the early days of European integration under Charles de Gaulle, such as during the ‘empty chair crisis’. Could a similar risk arise in Ukraine of it perhaps being an awkward nationalist partner in the EU due to this sovereignty building experience of resistance?

That is a good question, and what I speak of in my Verfassungsblog contribution is a new Marshall Plan for Ukraine. If we think about the rebuilding needs, this will include building new, robust, and well-functioning institutions of democracy in Ukraine because we need to be open about the fact that Ukraine was very far from a paragon of a liberal democratic state honoring human rights in the European space. In fact, if we look at the number of cases pending in front of the European Court of Human Rights, Ukraine has always been one of the leaders next to Russia and Turkey. So a lot has to be changed in order to point Ukraine in a different kind of direction. 

What we can say is that a better comparison would be the founding members of the EU, as they were at the moment when the Schuman Declaration was read at the Salon de L’Horloge, because all of them experienced destruction as a result of the war, and all of them benefited from overwhelming help from across the ocean. 

So this kind of Marshall Plan was something that made the European Union feasible, and it was something that made democracy and the Rule of Law entrenchable, as it were, among the founding Member States of the European Union. That is precisely why American proffered their help.

So it is absolutely in the interests of the European Union to repeat the Marshall Plan, probably renewed at a larger scale in the context of Ukraine after this war that Russia has started. This new Marshall Plan will result in a new state, not necessarily a France, but it can be the Netherlands, it can be Germany –  whatever state you prefer to compare Ukraine with.

What is fundamental is that enlargement of the EU then will go hand-in-hand with EU funded and fully EU supported reconstruction, which will go as deep as it gets and which will necessarily benefit from the available funds which were seized from the Russians.

So, in this sense, I think that the Union and Ukraine will both benefit profoundly from the new partnership between two strong economies. Of course they are on different scales, but there will be a new democratically rebuilt Ukraine as a result of this kind of help. This new Ukraine will have all its moral height, enjoying the prestige of a country that stood against an aggressor, and representing the liberal democratic values of the global west. So it will be a mutually beneficial relationship.

For my final question, the argument has been made that Rule of Law backsliding occurred in Poland and Hungary due to the rushed accession procedure that led to the economic shocks of full free market capitalism taking effect in those countries.  Would this phenomenon be replicated to a more extreme extent if Ukraine were granted immediate accession, and how could this be prevented?

You argue in your articles that a ‘principle of mistrust’ informs pre-accession conditionality at present. Do you think this could actually be overcome if, at the time when compliance with the EU acquis communautaire and its values occurs, Ukraine is already a full Member with democratic representation in the EU institutions?

This goes to the core of the problem that we are facing with all the Central and Eastern European countries.  The question arises: how come the countries that were subjected to the harshest pre-accession vetting in the history of the Union are the worst performers? Well, it is difficult to put everyone in the same basket, but especially Hungary and Poland which were unquestionably the leaders of reconstruction, as viewed by the EU, with the promise and hope of long term consistent adherence to the values the EU was trying to export – however, these countries failed.  And this failure connects to the failure of the pre-accession exercise.

To me, it’s not that the EU allowed the Central and Eastern European countries to enter too soon; that is not the question at all, and in fact when they entered, they were perfectly functioning democratic states respecting the Rule of Law.

They were almost examples for many Western European states that were already in the Union at that time.

The lesson that this teaches us is that pre-accession as such was not designed to produce lasting durable results in terms of value transformation. When you want to rebuild a country, you need to look elsewhere –  not in the direction of the countless thousands of pages of the Commission’s documents related to the pre-accession, which I had the misfortune of reading in preparing for the book called The Failure of Conditionality, because from those documents themselves it was already crystal clear that the exercise itself could not result in an EU- or Commission-boosted lasting transformation, but instead it would be something else.

A main lesson from this is that we need to be ready to act in defense of the values post-accession. This is something that the EU would do anyway because Poland and Hungary are here to stay. This is indispensable for the EU to deal with any future potential backsliding states.

This means that the knock-on effect is that accession for Ukraine would necessarily come with long-duration transition periods in all the sectors of the economy, although probably not for free movement of persons because temporary protection already now de facto effectively grants Ukrainian nationals free movement, and taking away rights is never a popular measure if you want lasting friendship in the context of the Union. But in all the other sectors of the economy, this would definitely be needed. And then those long-term transitional measures should also be backed by potential ‘emergency brake’ provisions which would allow the Union to reaffirm in the most forceful way the supremacy of the values of Article 2 should something go wrong. In fact, as the story goes, it will most likely be possible to incorporate such strong provisions into the Accession Treaty and the Act of Accession that Ukraine and the Member States will sign. 

So nothing prevents us from making this a long-term commitment which will subject one of the Member States, and potentially all the other entrants in the future as well including Moldova and Georgia and the Western Balkan states, to a special primary law level post-accession ‘emergency brake’ procedure.

An emergency brake provision would place the Union in a better position vis-à-vis Ukraine and all those other new states compared with the position in which the EU finds itself today vis-à-vis Poland and Hungary. 

It is absolutely necessary to think constructively, and to read Article 49 very closely because, as is absolutely clear from the Article, pre-accession and all the customary law related to enlargement of the European Union that we saw applied in the context of the last three rounds of enlargements is not something that Article 49 demands. Article 49 is a political instrument that aims for the eventual emergence of a new Member State that will take the key values on board and in full. We need to think about the political benefits and the political gains that capitalizing on having the most popular country in the world among the members of the European Union would bring to Europeans on both sides of the current border, on the Ukrainian side, and also on the Union side.

This transcript has been edited for length and clarity

In collaboration with Karen Culver

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