Between Association and Membership: what European destiny for Ukraine, Moldova and Georgia?

By Pierre MIREL

By declaring that “Ukraine belongs to our European family”, the European Council did not promise its accession but worked out a compromise formula between the Member States which wish it and those which remain cautious. What are the rules, criteria and practice for joining the Union? What are the conditions and obstacles to this path? Not only to obtaining this status but also, in the longer term, to the potential consequences of these memberships. What responses from the EU: big leap, small steps or an alternative? With an exceptional experience of EU enlargements, Pierre Mirel presents a remarkably documented picture. He ends his proof with a proposition.

“The old world is dying, the new is slow to appear and in this chiaroscuro the monsters arise”. Antonio Gramsci

On February 24, 2022, Vladimir Putin announced his decision to “carry out a special military operation” in Ukraine to respond to the request for help from the People’s Republics of Donetsk and Luhansk, which he recognized on February 21 and with which the Federation of Russia has just signed two “treaties of friendship, cooperation and mutual aid”. As he delivers his speech, Russian troops have just invaded Ukraine in a war that will last and prove to be brutal and bloody.

The European Council condemns this “  unprovoked and unjustified military aggression and unreservedly supports the independence, sovereignty and territorial integrity of Ukraine  ”. Coming after the recognition of the Georgian provinces of South Ossetia and Abkhazia in 2008, and the integration of Crimea into Russia in 2014, this is another serious violation of international law and of Russia’s commitments. . The European Union reacted forcefully and quickly by adopting a package of severe and unprecedented sanctions against Russia.

Promptness also in its reaction to Ukraine’s application for membership signed by President Volodymyr Zelinsky on February 28, 2022, followed by those of Georgia and Moldova on March 3, 2022. On March 10, 2022, in fact, the Informal European Council meeting in Versailles invites the European Commission to submit its Opinions on these three candidacies.

From emotion to caution

It is a strong political gesture in the emotion aroused by the Russian aggression of an independent and sovereign country, aggression which also attacks ”  the dignity, freedom and democracy of the whole of Europe  ” and which Ukraine defends , as stated by the President of the European Council Charles Michel. Emotion again when President Zelinsky addresses MEPs on March 1, 2022 from his bunker in Kyiv: “  We call on the EU to immediately launch the procedure leading to the granting of candidate status to Ukraine for its membership. Prove that you are with us  ”. With an overwhelming majority of 637 votes – 13 against and 26 abstentions – the European Parliament resolution calls on the institutions of the Union to work towards granting candidate country status to Ukraine.

The Parliament nevertheless recalls that any accession is subject to conditions and is based on the candidate’s own merits. During the debate, the President of the Commission, Ursula von der Leyen, stressed that there is a long way to go, while there are ”  different positions and sensitivities in the Union on its enlargement  “, as Charles Michael. Moreover, the European Council did not take up the idea of ​​an express procedure as requested by the Member States since there is no express route to accession, as indicated by the Prime Minister of the -Bas, Mark Rutte. He did not open the accession procedure but relied first on the Opinions of the Commission. President Macron expressed the general sentiment well by declaring: Open a procedure with a country at war, I do not think so. Close the door to him and say never, it would be unfair  .

Not taking Ukraine’s request into consideration would indeed have been a victory for the master of the Kremlin, and like a denial of the revolution of dignity with its European choice at Maidan in February 2014. The Council’s decision is therefore a a strong symbolic response to the need for these three countries to anchor themselves more than ever in the European Union in these days of bloody war, and when their membership of NATO is no longer on the agenda. Their candidatures illustrate the attraction that the Union represents for the States of the continent wishing to freely and voluntarily share elements of their sovereignty and the values ​​with the 27 Member States, in order not to succumb to integration in the Russian Federation. or the forced alignment with the Putinian political regime.

Declaring that ”  Ukraine belongs to our European family », the European Council did not promise its adhesion but worked out a formula of compromise between the Member States which wish it and those which remain cautious. This did not prevent the Lithuanian President from affirming: “Historic night at Versailles. European leaders have said yes to the European integration of Ukraine. The process has begun”. Statement which reflects the determined support of eight Central and Eastern European countries for the rapid granting of candidate status, in a letter to the Commission. These eight Central and Eastern European countries are: Estonia, Latvia, Lithuania, Poland, Czechia, Slovakia, Slovenia and Bulgaria. While Germany, France and Benelux, among others, will highlight the unpreparedness of the candidates, the geopolitical consequences and the absorption capacity of the Union. These candidacies indeed represent great challenges for the European Union. Before examining them, let us set the terms of the debate:what are the rules, criteria and practice for joining the Union?Between Association and Membership: what European destiny for Ukraine, Moldova and Georgia?

Pierre Mirel

Joined the European Commission in 1981, Pierre Mirel was Director there for accession negotiations with Hungary, Slovakia, Czech Republic and Slovenia, then Croatia and Turkey, before being responsible for the Western Balkans until his retirement at the end of 2013. Lecturer at Sciences Po-Paris since 2010 on the EU and its neighborhoods.

I. Rules, criteria and practice of accession to the European Union

I.1 Can these three countries join the European Union?

The Treaty of Lisbon is clear in its Article 49: “  Any European State which respects the values ​​referred to in Article 2 and undertakes to promote them may apply to become a member of the Union  ” .Except for the reference to values, the phrase has not changed since the Treaty of Rome. In the very spirit of Jean Monet’s messianism, the Union has a vocation to welcome all the European States that so wish, in order to ensure peace and prosperity on the continent. The European character of Moldova and Ukraine is not only undeniable, it is formally enshrined in the preamble to the association agreements signed by the two countries respectively in 2013 and 2014. The preamble also refers to the whole of article 49, but without saying so, placing the two countries in the position of potential applicants for membership:

“the contracting parties, aware of the fact that Ukraine ( or Moldova), as a European country, shares a common history and values ​​with the Member States of the European Union and is committed to promoting these values. »

What are the values ​​to which article 2 refers? They are at the very foundation of the Union: ”  values ​​of respect for human dignity, freedom, democracy, equality, the rule of law, as well as respect for human rights, including rights of persons belonging to minorities. These values ​​are common to the Member States in a society characterized by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men. »

Membership of the Union has in fact long been the stated priority of Moldova and Ukraine, the latter having even included it in its constitution in 2019, with the support of several Member States. Lithuania and Poland in particular have been urging the Union for several years to grant them a ”  European perspective “. We can also assume that it was these two countries that suggested to President Zelinsky that he seize the opportunity of Russian aggression to submit his country’s candidacy for the Union. Have the Commission, the Council Secretariat and some large Member States been consulted beforehand, as is customary, as to the appropriateness of the moment when an application can be submitted? A political opportunity which depends both on the situation of the candidate and the state of his reforms, as well as on the situation of the Union itself. This survey is important to avoid that the Council’s silence, or worse its refusal of an application, does not put the candidate in a difficult position. We can assume, at the very least, that the President of the Commission was informed of this.

Georgia is in a different situation since the preamble to its 2013 association agreement takes note of Georgia’s European aspirations and its choice to turn towards Europe, recognizes the determination of Georgia, an Eastern European country , to translate these values ​​into practice and to promote them. Its European commitment is recognized by the Union but it is not shared in the strong terms of the agreements with Moldova and Ukraine. We can clearly see that it is its geographical position in Eastern Europewhich makes the difference. And if its president, Salomé Zourabichvilli, has worked tirelessly for membership for years, the prime minister, Irakli Garibachvilli, maintains a more neutral attitude between Russia and the Union, even if he signed the application .

There is another rule, unwritten, which these three countries comply with – the Trio, as they call themselves – and that is to have an association agreement with the Union before they can pose their candidacy. They are therefore effectively entitled to apply for membership of the European Union on the basis of Article 49 of the Treaty. What are the conditions?

I.2. What are the conditions for their membership?

Before the accession of the countries of central and eastern Europe in the 5th enlargement on 1 May 2004, two general conditions were required for membership, unwritten but implicit: to be a democracy and to have a market economy , in accordance with the principles and values even of the founding countries. It is of course the first condition which delayed the acceptance of the candidacy of Greece, Spain and Portugal until the end of their military regimes. As for the state of market economy, it was accepted a priori for the three countries, and a fortiorifor the previous accessions of the United Kingdom, Denmark and Ireland in 1973, members of the European Free Trade Association. And of course also for the accession in 1995 of Austria, Finland and Sweden. The need to define the double implicit condition of being a democracy and having a market economy therefore did not arise before the 1990s.

From the beginning of the latter, Poland and Hungary, then gradually the other countries of Central and Eastern Europe, clearly indicated their intention to join the Union. However, they were in transition from a system of one-party rule and a command economy. Moreover, the reunification of Germany had shown that the rapid integration of the economy of the former German Democratic Republic (GDR) into a de facto Unionexpanded had led to the closure of many state-owned enterprises that had become uncompetitive, without sufficient restructuring transition. The European Council therefore considered it necessary to lay down specific conditions for membership to guarantee political adaptation and to ensure an economic transition limiting the risks of abrupt adaptation. This is what it did in Copenhagen in December 1993 by laying down the following conditions, which have become primary law for any new accession referred to in Article 49 of the Treaty, according to which a candidate country must have:

“Stable institutions guaranteeing democracy, the rule of law, human rights, respect for minorities and their protection;

. A functioning market economy and the ability to cope with market forces and competitive pressure within the EU;

. The ability to assume the obligations of membership, including the ability to effectively implement the rules, standards and policies that form the body of EU law (the “acquis”) and to subscribe to the objectives of political, economic and monetary union. »

To these criteria, the Union has added conditions specific to the Western Balkans within the framework of the Stabilization and Association Process adopted at the Thessaloniki Summit in June 2003  : “good neighborly relations and regional cooperation”. The good neighborly relationship involves resolving any bilateral dispute before being able to join , or even before being able to obtain the opening of accession negotiations if a Member State of the Union is party to the dispute since unanimity is required. Macedonia was a victim of this for more than ten years due to Greece’s opposition to its name, until the Prespa agreement in 2018 when it became the Republic of North Macedonia. However, it remains a victim of this with the opposition of Bulgaria for reasons of identity and language.

It is also Serbia which is subject to this condition of good neighborliness as long as it has not concluded, in accordance with the Union’s request, a legally binding agreement with Kosovo , which separated from it by a unilateral declaration of independence in February 2008 and which it does not recognize. However, this agreement should logically lead to the recognition of Kosovo and its acceptance as a member of the United Nations. This is what Serbia opposes at this stage with the full support of Moscow. Sergueï Lavrov certainly said that Moscow would follow Belgrade’s position at the United Nations. But it is to be feared that the war in Ukraine has reshuffled the cards.How not to think that Russia will use Kosovo as an element of exchange in the overall negotiation which could engage with Russia after the war in Ukraine? While Putin has again just made a parallel between the independence of Kosovo and that of the self-proclaimed republics of Donetsk and Luhansk which he recognized. This condition of good neighborliness was developed to avoid again the unfortunate accession of a divided country, the Republic of Cyprus, after the refusal of Nicosia by referendum of a plan for the reunification of the island accepted by Northern Cyprus with the Turkish agreement. Since then, the European Union has been hostage to Ankara. And we therefore understand the Union’s desire to no longer accept divided countries. This will pose a great challenge for him with the Trio.

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If the Commission follows the rules and the practice until now, its Opinions should therefore say whether the three countries meet the criteria for membership and if not, under what conditions and deadlines they could. Or consider a completely different association with the Union. They should also offer an approach to their occupation and division by Russia.

I. 3 The process: the Commission helps the negotiators, the Member States decide

Article 49 is very succinct in this respect: ”  The requesting State addresses its request to the Council, which decides unanimously after consulting the Commission and after obtaining the approval of the European Parliament, which decides by a majority of the members compose. The eligibility criteria approved by the European Council are taken into account. The conditions of admission and the adaptations which this admission entails … shall be the subject of an agreement between the Member States and the requesting State. This Agreement is subject to ratification by all Contracting States, in accordance with their respective constitutional requirements. »

Four essential points emerge: the Council has an obligation to consult the Commission, which the Versailles European Council did with the requests of the Trio; membership is acquired only by the unanimity of the Member States and by the majority of the European Parliament; each Member State and the candidate State must ratify the Accession Treaty.

The treaty does not give any further indications. This is why the following concrete process has been developed in favor of previous memberships:

. As soon as the Council asks the Commission to prepare its Opinion, the latter sends a questionnaire to the requesting State to find out the detailed way in which it fulfills the Copenhagen criteria or plans to do so, as well as the transition periods for which it feel you need to join. To this questionnaire submitted very quickly by the Commission to the Trio at the end of March 2022, Ukraine replied on the political part on April 18, 2022 and on the acquired part on May 9, 2022, Moldova on April 22, 2022 and May 12, 2022 respectively , and Georgia on May 2 and 10, 2022. Note that the questionnaire on learning includes nearly 3,000 questions.

. On the basis of the responses, the Commission presents the Council with its Opinions on the merits of the applications. It must say whether the conditions are met to confer the status of candidate country or whether specific reforms should be made beforehand. Albania only obtained this status four years after the Commission’s opinion. Bosnia and Herzegovina is awaiting this status three years after the Opinion because the conditions set for its granting have still not been met. The Commission plans to issue its Opinions on the Trio’s requests on June 15, 2022.

. Even if the requesting State receives this status, the opening of accession negotiations may be conditional on the completion of certain reforms. Four years have thus passed for Albania. And it had to wait another two more years, after other reforms, before the 27 decided unanimously on the opening of negotiations.

. Once this decision has been taken, a framework for negotiations is unanimously approved between the 27 and the requesting State. This is not a formality since Bulgaria is today blocking this act with North Macedonia. This framework divides the negotiations into 33 chapters grouped into clusters which are as many areas of the acquis, supplemented by two chapters on the institutions (34) and other possible questions (35) And, as one cannot imagine the 27 negotiating hundreds of directives and regulations with the requesting State, the Member States give the Commission a mandate to prepare position proposals for them on the basis of the negotiating positions of the requesting State.

. Negotiation is a misnomer. There is in fact very little to negotiate apart from a few specific areas, the post-accession budget and the candidate’s possible transition requests. It is above all a question of ensuring that the requesting State has actually adopted the European legislation and that it has the capacity to implement it “efficiently and effectively” as requested by the European Council of Madrid. in 1995. Hence a continuous exercise of monitoring and control through interaction between the Commission and this State, with field missions to ensure the veracity of the declarations and to which the Member States can delegate experts.

. Member States must decide unanimously on each proposal of the 33 chapters, for their opening and closing, in addition to intermediate references/benchmarks. Which means at least 66 blocking opportunities by one of the 27! This unanimity is the rule because these are intergovernmental conferences of 1 + 27 and not the latter sitting in “Council” formation within the meaning of the Treaty. It is moreover the rotating presidency which has pre-eminence.

. Once all the negotiations have been completed, the Commission issues a new opinion to say whether the candidate is ready to join. It again requires the unanimity of the Member States and the agreement of the European Parliament. Ratification of the Accession Treaty by the Member States and the candidate completes the process.

The prompt decision of the European Council in Versailles, on March 10, 2022, the speed with which the Commission sent its questionnaire to the Trio and above all the speed with which its members responded to the thousands of questions do not fail to raise questions. Hence the question of deadlines.

I. 4. What are the process deadlines?

The table below clearly shows that there are no fixed deadlines and that they vary considerably between the application and the opinion of the Commission, as well as between this and the adhesion of the State. applicant. The delays are all the longer between the Opinion and the opening of negotiations if a Member State opposes it. This was the case of Greece for ten years with North Macedonia . This is again the case today with Bulgaria.

Table: Variable timelines for the membership process

State candidacyOpinion of the CommissionState Membership
Spain, 3rd candidacy
28 July 1977
November 29, 1978January 1, 1986
Poland
April 5, 1994
July 15, 1997
Opening of trading. March 1998
May 1, 2004
Serbia
December 22, 2009
October 14, 2011
Candidate status March 2012
Open negotiations
January 2014
North Macedonia
March 22, 2004
November 9, 2005
Candidate status December 2005
Opening negotiations?
Albania
April 24, 2009
November 9, 2011
Candidate Status 2014
Opening negotiations?

Realization of the painting: Pierre Mirel for Diploweb.com , May 2022.

So we can only be surprised by the very short deadlines with the Trio so far. How to respond so quickly to what constitutes the very heart of the complex foundations of the Union. It is true that their association agreement with the Union facilitates both their replies to the Commission’s questionnaire and the processing of the replies by the latter.

I.5 What is the status of the three countries with the European Union?

The results of the neighborhood policy initiated in 2004 with the Union’s new neighbors to the East did not live up to expectations. To remedy this, the Eastern Partnership was launched on 7 May 2009 in Prague under the impetus of Poland and Sweden .. Although it includes six countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova, Ukraine), only those of the Trio accepted these Association Agreements (AA) coupled with “Deep and Comprehensive Free Trade Agreements” (ALECA). Georgia and Moldova signed them in 2013. We remember that Ukrainian President Yanukovych refused it under pressure from Moscow, which triggered the dramatic events in Maidan Square in Kyiv. Dismissed after his flight to Russia, he was replaced by Petro Poroshenko elected on May 25, 2014 and the agreement signed on June 27, 2014. Meanwhile, the oblasts of Donetsk and Luhansk had entered into rebellion with the support of Moscow and Crimea attached to Russia in March 2014, which also launched a hybrid war against Ukraine.

What is the nature of these agreements capable of triggering such upheavals? They aim at political association with the Union and at economic integration into its internal market, while respecting common values. Political association goes a long way since Article 7 envisages “  convergence in the field of foreign and security policy, including the common security and defense policy” . The ”  free trade ” part is ambitious since it provides for the gradual elimination of customs duties and quantitative restrictions, the adoption of Union norms and standards, the freedom to provide services and the right of establishment, as well as the adoption of public procurement rules, competition and intellectual property. This implies the integration into the legal order of the candidates of more than 120 directives and regulations of the Union. Added to this is economic cooperation which covers all areas in which the Union has competence, in particular transport, energy and the environment.

The commercial aspect of these agreements entered into force on January 1, 2016 and the association agreement itself on September 1, 2017. These agreements therefore go beyond those concluded in the early 1990s with European countries centre, then with the Western Balkans, but without considering membership. Their extent is however such that once implemented, the Trio would be close to Norway’s situation with the Union. They are, in fact, the result of a compromise between the Member States who wanted to offer the Trio a “  European perspective  ” and several founding members who opposed it.

Their application for membership will relaunch the debate between the Member States. But this time under the harsh light of war where reason and emotion, moral and political, will clash to offer or not the status of candidate country, that is to say to open or not right now the road which will lead to their membership. In the light of the framework we have laid down, what are the conditions and the obstacles to this path? Not only to obtaining this status but also, in the longer term, to the potential consequences of these memberships.

II. Conditions and Barriers to Candidate Status and Membership

II.1. In the light of the Copenhagen criteria

The European Commission regularly reports on the implementation of the association agreements with the members of the Trio. And regular meetings in the framework of the Eastern Partnership also highlight progress and shortcomings. The European Parliamentary Research Service has compiled a 2020 assessment of Ukraine. CEPS has gone further by publishing a detailed sector rating for Moldova and Ukraine and comparing them to the Western Balkans  [ 1 ] .

For these two countries, a contrasting picture emerges in terms of political criteria. Elections are free and fair. Individual liberties and satisfying rights. In contrast, the rule of law is weak and corruption high to which a dependent judiciary contributes. Transparency International rates the perception of corruption at 32/100. In Ukraine, the re-evaluation of magistrates remained erratic. The fight against corruptionwas one of the priorities of President Zelinsky elected in 2019. A year later, he sacked the attorney general he had appointed and his reformist government. The political culture has very little to do with that of the members of the Union. We are also witnessing the incestuous marriage of the oligarchy and information – often in its hands – with politics. The result is hybrid regimes, in transition between democracy and authoritarianism, caught between post-Soviet forces with proven methods and reformers who struggle with the tools of the European agreements and their conditionality.

This conflict is exacerbated in Georgia where the ruling Georgian Dream party has succumbed to the temptation to control the political game in elections and interference in political trials. Only the anti-corruption legacy of former President Saakashvili gives it a more positive perception of 55/100. The implementation of the acquis is good there , but overall, Georgia stands out from the other two countries by an anti-democratic drift which distances it from the principles and values ​​of the Union.

Significant progress has been made in the various aspects of the acquisfree trade agreements with Ukraine and Moldova. But reforms in sensitive areas remain weak or require major implementation efforts: public procurement, competition and intellectual property. Corruption is a factor, as well as an insufficiently reformed and efficient public administration. Economic vulnerability is a serious problem, as both countries are largely dependent on external financing, from the IMF and the EU. Ukraine received €16 billion in budgetary aid and loans between 2014 and 2021. It is obvious that the occupation of Crimea, Transnistria and the conflict in Donbass, in addition to the slowness of certain reforms, create insecurity and hamper investment.

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The evaluation of the state of the Western Balkans in accession negotiations (Montenegro, Serbia) or about to enter (Albania and North Macedonia) is generally higher than that of the members of the Trio. Especially when it comes to corruption and the judiciary. On the basis of the Copenhagen criteria alone, if the Commission sticks to its approach with Albania and North Macedonia, it should condition obtaining candidate status on real reforms in these two key areas so that the candidates demonstrate their willingness and ability to actually improve the situation.

II.2 The forgotten Copenhagen criterion: the capacity to integrate new members

Many analyzes of the conditions for EU membership omit what some have called the 4th Copenhagen criterion:

“The Union’s ability to assimilate new members while maintaining the momentum of European integration is also an important element in the general interest of both the Union and the candidate countries. »

This capacity should be assessed against internal policies. It is obviously the cost of membership that is important. The following table provides elements of comparison with Poland and Bulgaria which joined in 2004 and 2007 respectively (Sources: Eurostat and DG Trade).

The total population of Ukraine and Moldova is equivalent to that of Poland and Bulgaria. However, the total cost of the 2021-2027 structural policies for these two countries will amount to €85 billion. This shows the extent of the budgetary funds that the Union should transfer to the Trio, given the standards of living and with identical parameters, to facilitate their development and hasten economic catch-up with the 27. That of Poland is impressive but it has took place in a period of stability and without insecurity for investments. To this should also be added the gigantic cost of reconstruction in Ukraine, an initial estimate of which, at this stage, amounts to 500 billion €.  [ 2 ]

In addition to these macro-economic costs, and without prejudging the analysis that the Commission will conduct, let us focus on three policies. The largest agricultural country in the Union, Ukraine is one of the world’s leading exporters of cereals, most often produced on very large farms. The common agricultural policy would necessarily have to be adapted to take this into account, which will have a cost. The implementation of the “  Green Deal  ” will also pose financing problems. Finally, uncontrolled migration from the new neighbors after accession would present a high risk if the latter were to show themselves to be as bellicose as ever, like Belarus in the past months. The financing of these accessions would clearly require new own resources. Could a European peace tax be envisaged, which would already be put in place during the reconstruction in Ukraine?

II. 3 Governance of the Union, the renewed consensus on enlargement in 2006

A European Parliament report in February 2006, at the instigation of MP Elmar Brock, proposed that the Union’s integration “capacity” should become a formal criterion, implicitly aiming to rule out Turkey ‘s membership . He also asked for a report from the Commission, which in November proposed the ”  renewed consensus on enlargement  ” with three components: ”  an imperative consolidation  ” according to which new membership must not endanger the institutional functioning of the Union nor its ability to pursue new policies; “  strict conditionality  ” which implies that the new member is ready to assume all of its obligations; “  strengthened communication on the membership process. The conclusions of the European Council of 14-15 December 2006 took up these three Cs.

Faced with new accessions, the governance of the Union will obviously have to be reformed, while it is already struggling to find a consensus on complex or sensitive issues such as immigration. Three key issues arise here. First of all, beyond the adaptation of the distribution of votes in the Council and seats in the European Parliament, the accession of Ukraine would lead to a notable strengthening of the votes of Central and Eastern Europe in the institutions Europeans. It is no offense to President Zelinsky or President Sandu to write that the illiberal regimes that prevail today in Hungary and Poland could give rise to fears of a similar development among future members with a recent and fragile democratic past.. Then there is the sensitive issue of the number of Commissioners. According to article 17.5. of the Treaty, their number should be equal to 2/3 of the number of Member States, unless the European Council decides otherwise. It will have to find an appropriate formula because it is hard to imagine a Commission with more than 30 Commissioners if the Western Balkans are included. Finally, the question of unanimous voting in tax or social matters would arise even more acutely, when the risks of “dumping” would be real, unless specific conditions and long transitions are negotiated. Without forgetting the unanimity in terms of foreign policy, the pernicious nature of which we see today for the sanctions against Russia.

II. 4 Borders, Divided States and Union Security

The treaty establishing a Constitution for Europe was rejected by France and the Netherlands in 2005. The 5th enlargement (2004) was one of the reasons, part of public opinion believing that it had gone too far, too quickly and at too high a cost. The question of borders has since then often been raised in academic works. The Laeken Declaration of December 15, 2001, however, did not set any: “  the only border traced by the EU is that of democracy and human rights. The Union is only open to countries which respect the fundamental values”.Naivety? Messianism rather in the very spirit of Jean Monnet, but which comes up against the incomprehension of part of public opinion and fuels Eurosceptic and populist discourse. In 2010, a report, at the instigation of France, further reinforced this approach: ”  The Union must remain open to potential new members from Europe and assess each candidate on a case-by-case basis and according to their degree of compliance with membership criteria. This is in fact where ‘the real limits of Europe’ lie”  [ 3 ] . President Sarkozy, who expected arguments against Turkey’s membership, did not find his account.

To our knowledge, no official document of the Union has ever addressed its limits, nor asked to fix them even temporarily. We bet, however, that these three new candidacies will relaunch the debate on Europe’s borders, with three corollaries: their limits, the reception of countries divided and occupied by Russia, the Union’s ability to ensure its own security. But the debate on its limits is now biased since it arises in the light of the war in Ukraine, with all the emotion that surrounds it. It is therefore difficult to contest its extension to Ukraine and Moldova, which rather refers to a debate on the very type of links of these countries with the Union.

Some plead for the Union to “recognize that its security is inseparably linked to its ability to project its power by offering the prospect of membership, thus showing Russia its readiness to defend the international order it prefers”.  [ 4 ] . Position widely shared in Central Europe but very surprising if we remember that it was following the EU agreement with Ukraine in 2014 – and not NATO measures – that Russia annexed Crimea and contributed to the conflict in the Donbass. Underestimating the challenges posed by this agreement, the Union did not have the capacity to react forcefully . How could she a fortioriby extending its borders to Russia, or even only if the master of the Kremlin, locked up in his mental bunker, took umbrage at the opening of negotiations? It being understood that one cannot compare Ukraine and Finland. Obviously, it is not the Union’s soft power that will suffice. As Pierre Hassner wrote: “power through the norm can never impose itself alone and by itself, it depends on the interests and the respective weight of the actors at the same time as on their values”.

Moreover, Article 42.7 of the Treaty provides: ”  In the event that a Member State is the object of armed aggression on its territory, the other Member States must help and assist it by all the means in their power  ” .It is certainly not the collective defense clause of Article 5 of NATO. But the Member States, even acting together, today do not have this capacity. The Russian war in Ukraine precisely underlined the weaknesses of the Union and marked the great return of NATO. Will it develop it between now and possible accessions to the extent of a possible new aggression by Russia, which has remained belligerent? It cannot be said that the expansion of the EU would be a guarantee of security, except to create serious illusions, as was already the case with the opening of accession negotiations with Turkey.

The occupation of parts of the territories of the three candidates in the republics created and recognized by Moscow is obviously another major obstacle to their accession: Abkhazia and South Ossetia in Georgia, Transnistria in Moldova, Donetsk and Luhansk in Ukraine, in addition to the absorption of Crimea . Accession negotiations cannot succeed by ignoring this state of affairs, since that would mean accepting the policy of force which has detached these territories from sovereign States. But refusing it because they are divided, in line with the position of the Member States so far in this regard, would make these three countries and the Union hostage to Russia. In any event, none of these memberships could succeed without a new relationship between Brussels and Moscow, reinforced by continental security agreements.

There is another actor who could noisily interfere in membership negotiations, and that is public opinion. Let us remember the 300,000 Dutch citizens who initiated a consultative referendum against the ratification of the association agreement with Ukraine by The Hague in April 2016. Its approval by 61% of voters led the government to negotiate with the other Member States an interpretative declaration of which the European Council of December 2016 took note, in these terms: “  the Association Agreement does not confer candidate status nor is it a commitment to confer it in the future…. will not lead to any form of mandatory defense cooperation”.To the chagrin of some Central European countries, especially since only 32% of citizens took part in the vote. We now understand Prime Minister Mark Rutte’s caution in the face of these candidacies. Beyond this case, we must expect more reactions from public opinion against European foreign policy measures in the future, as we have already seen in trade matters, a fortiori on extension of the borders of the Union to Russia.

II.5 A new approach with the Western Balkans. And with the Trio?

In what looks like a race towards membership, the Western Balkans – Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia – are theoretically in the lead since the European Council in Thessaloniki on 23 June 2003 gave them a ”  European perspective “ “. But progress has been very limited so far. Only Croatia joined in 2013. Montenegro has been in membership negotiations for ten years but only three of the thirty chapters opened have been provisionally closed. The record of two against eighteen is not more flattering for Serbia, in negotiations for eight years. Bulgaria maintains its veto on the opening of negotiations with North Macedonia for reasons of identity and language. Albania, associated with it by the Council for a joint opening, therefore also finds itself blocked. As for Bosnia Herzegovina and Kosovo, they remain unfinished and unstable states, with the status of “  potential candidate  ”, far from being able to obtain that of candidate. The latter, because five Member States of the Union  [5 ] and Serbia have still not recognized its self-declared independence in February 2008. Bosnia and Herzegovina because the Bosniaks, Croats and Serbs who compose it do not find a consensus on the type of federal state they want , which translates into their inability to meet the 14 priorities set by the Union to obtain candidate status.

Although the delays and obstacles are above all linked to the insufficient political will for reform in the States concerned, the result is a loss of credibility for the Union and a geopolitical vacuum that Russia, China and Turkey are happy to fill increasing their influence there. While fears are emerging that Moscow, thanks to the war in Ukraine, is using its networks there to destabilize the region. The Western Balkans are concerned, for their part, that the war in Ukraine will change the order of priorities, especially since the European Council promptly requested the Opinions on the candidacy of Ukraine, Moldova and Georgia. Kosovo has already pleaded to receive candidate status. And Bosnia and Herzegovina to be conferred without the 14 priorities being met.

In his “  Oath of Strasbourg”in the European Parliament on May 9, 2022, President Macron proposed “a European Political Community to organize Europe from a political point of view and wider than the European Union”. It targeted membership applications from Ukraine, Moldova and Georgia. He nevertheless created trouble in the Western Balkans, even if he specified in his press conference that “for the Balkans, the path has already been traced”, implying that of membership. What he confirmed on May 20, 2022: this Community would be “a complement and not an alternative to the enlargement process”. The foreign ministers of Austria, Hungary, Slovakia, Slovenia and the Czech Republic asked Josep Borrell for a debate in the Council because it is “urgent to give impetus to the integration of the Balkans”.

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The process of their accession is no longer suitable, despite a new methodology adopted by the Council in May 2021 at the instigation of France. President Charles Michel proposed on May 18, 2022 to change it to make it ”  progressive, gradual and reversible, and with socio-economic benefits during pre-accession  “. He reiterated this idea in Belgrade on May 19, 2022: “  We need to create new incentives for reforms, which means starting integration now during the accession negotiations rather than waiting for their outcome  ”. This is the new approach  [ 6 ]that we have been defending since 2019. It seems useful to us to detail it here because it could also inspire relations with the three new candidates in the East.This approach is based on three principles: putting an end to the binary system of limited pre-membership aid followed by massive post-membership funds once a member; move towards membership in stages according to the reforms carried out, each stage passed giving access to increased funds; establish a consolidation phase at the end of the negotiations before full membership. The first step would be the implementation of the association agreements and certain symbolic reforms, for example the electoral law in Bosnia and Herzegovina. The candidate country would then receive a fraction of the structural funds, but higher than what the pre-accession aid program (IPA) would have granted to it.

The second stage would consist of the country’s integration into the Union’s internal market, a key and concrete stage to solidly secure the Balkan economies, when 66% of their trade is already done with it. This, combined with the parallel realization of the regional common market, should accelerate investments and therefore curb emigration. The reforms in the different sectors/chapters would induce the passage to the following stages. And progress on the fundamental elements of the rule of law should be made throughout the process, for example in the fight against corruption in relation to the internal market (public contracts and conflicts of interest in particular).

Each step change would provide access to increased funds. As well as the country’s participation in the various bodies of the Commission and the EU in the policies concerned, observation and then as of right. Priority should of course be given to the Union’s new emblematic policies, such as the Green Deal, as well as to an association with security and defense policy. When the Commission confirms that the criteria for membership have been met, a final stage would begin where the candidate would have the rights pertaining to his membership, with the exception of the right of veto and without having a commissioner. This last stage of consolidation would be so for two reasons. On the one hand, to verify that the acquisadopted is effectively implemented, that the country does not begin to deny the values ​​subscribed to and the principles accepted, nor is it already opposed to new common policies. But also to put an end to complex bilateral disputes. And to allow the Union, on the other hand, to finalize a new governance, including the number of commissioners. At the end of this stage, of variable duration, the country would be a full member of the Union.

III. What responses from the EU: big leap, small steps or an alternative?

III.1 The terms of the debate

The European Commission is certainly faced with a dilemma that it has never known in this area, while its President, through several statements, suggests that she is in favor of candidate status for Ukraine, Moldova and Georgia. If the Commission sticks to the membership criteria and to the practice hitherto, it should propose the status of “potential candidate” and indicate the conditions and reforms to be accomplished in order to become a “formal candidate”. On the other hand, it cannot ignore the difficulties for the Union to integrate these three countries, because of the costs for several policies and the need to reform the Union itself. Just as it cannot ignore questions of borders and security. Of course, at this stage, it is only a question of answering the question of the status, but responding positively to it already opens the way to membership. Hence the importance of indicating, at the very least, the relevant elements for the rest of the process. And discuss an alternative.

But the context of the debate is far from serene when Olga Stefanishyna, Ukrainian Deputy Prime Minister in charge of European integration says with emotion “we have already paid for our membership with blood”. While his colleague in charge of foreign affairs, Dmytro Kuleba, complains that “Ukraine is treated as second class by certain Member States”. And that Nicolae Popescu, his Moldavian counterpart, declares that the Union’s refusal “would show that his country is hostage to Russia”. It is in fact the Union which is held hostage by Ukraine and Moldova, which consider that membership is their due, the war having created the right to rapid membership. The Baltic and Central European States as well as the European Parliament openly express their support. On the other, Austrian Foreign Minister Aleksander Schallenberg voiced his opposition, calling for an alternative. He will not be isolated in the Council. Prime Minister Orban could oppose it because of his links with Putin and his recriminations against the treatment which he claims is discriminatory reserved by Kyiv for the Hungarian minority. The caution of the Netherlands and the proposals of Enrico Letta and Emmanuel Macron show that the Council will be very divided and in an atmosphere that is likely to be harmful.

The former Italian Prime Minister has, in fact, proposed a European Confederation of 36 countries with the Western Balkans, which is very similar to what François Mitterrand had proposed to Central Europe in Prague in June 1991, but this time obviously without the Russia  [ 7 ] . It was then rejected, in particular by Vaclav Havel, in favor of membership to which these States considered they had a historical right. In his “  Strasbourg Oath” to the European Parliament on May 9, 2022, President Macron proposed a “  European Political Community”. That is to say a new organization allowing “democratic European nations adhering to our core values ​​to find a new space for political cooperation, security, cooperation in energy, transport, investment, infrastructure , circulation of people and in particular of our youth. Joining it would not prejudge future accessions to the European Union”. His arguments: “We have a historical duty, not to do as we have always done and to say the only answer is membership, but to initiate a historical reflection on the organization of our continent. For it is the truth to say that the process allowing them to join, would take…. probably several decades … unless we decide to lower the standards of this membership”.

The terms of the debate are therefore clear. Either the Commission recommends granting the three countries candidate status, which will logically pave the way for the process of their accession. Which would indeed take decades as the countries are so far from meeting the criteria, except to lower them, even in the case of accessions by stages. With the risks associated with the veto of member states at any time over such a long period of time. And those related to the extension of borders without a security agreement on the continent. There is also a risk of creating expectations among citizens with the illusion of imminent accessions, leading to frustrations and a gradual loss of credibility for the Union, as we can see today with the Western Balkans. Finally, there is a risk of reinforcing Eurosceptic and populist discourse.

Either the Commission proposes the status of “potential candidate” as the three countries are so far from being able to enter the process. Such a proposal would correspond more faithfully to the reality of their situation with regard to the criteria. However, it would follow the same logic as before with a simple time lag to move from one status to another. And we can predict very strong political pressure to accelerate this transition over the years. Ultimately, the risks would therefore be the same. In both cases, the major risk would be that of premature accessions and therefore necessarily subject to specific conditions and long transition periods which would make the States second class members. Worse still if post-accession control procedures were introduced, the ineffectiveness of which we have seen with Bulgaria and Romania. Because if conditionality is ineffective before accession, it is doomed to failure after [ 8 ] . In either case, Georgia cannot be treated like Ukraine and Moldova.

Candidate or potential candidate, if the Commission recommends one of these two options, it will split the European Council anyway. Because several Member States will consider that the Union cannot place itself in the classic context of a process which succeeded until 2004 but failed with the Balkans and is a fortiori not appropriate today with the new candidates. This will reinforce the East-West divide, making the founding states appear cautious and selfish. Let’s dare to sketch an alternative.

III.2. An alternative: a  strengthened “ European perspective  ” in a political Community?

Any alternative would have to avoid two pitfalls: open a process that would be carried as a standard of additional victory in the war, a facility that the Union and the candidates would pay for with endless negotiations; reaffirm that the candidates are members of the European family but without concrete offers. However, the latter expect a strong symbolic gesture which strengthens them in their fight and concretely confirms their European destiny. If the market has played a key role in the construction of the Union, its strengths must continue to be a lever for the integration of candidates. But there also needs to be an institution. It is the combination of the two that can offer an alternative around the following elements.

European perspective. The European Commission could propose to offer the three States a ”  European perspective  “, as the Thessaloniki Summit did with the Balkans in 2003. That is to say, to recognize that they have a vocation to adhere to the Union, what they have been asking for for several years and at every Eastern Partnership summit. And postpone the opening of the concrete process until a form of normality has returned to Ukraine and Moldova . It is then that the Commission would present concrete proposals. . Perspective reinforced by the extended Association Agreement/ALECA. The scope of this

agreement is unfortunately underestimated by the candidates and by the States which support them, preferring to headlong rush towards membership. The Commission would propose supplementing and strengthening the “  acquis” part and the economic cooperation of the agreements for integration into the internal market. It could also consider the creation of a Customs Union. Just as it would offer increased assistance in the fight against corruption and the independence of the judiciary.

Agenda 2030. In 1997, the Commission happily brought together in Agenda 2000 with the Baltic States and Central Europe, its Opinions on their applications for membership and a vast study of their impact. The Commission could do the same with the 2030 Agendawhere it would offer a real study of the impact of the three possible accessions on all the policies of the Union, including the costs of reconstruction in Ukraine. It would include a proposal to extend the association agreements, or even the Customs Union. Because, after the war, Ukraine and Moldova will need exports and investments more than ever. The 2030 Agenda would also make proposals for the European Political Community and for a new resource for peace.

An own resource for peace: The Commission would propose a new Union own resource for reconstruction in Ukraine, Rebuild . She could consider using frozen Russian funds. Above all, it would be based on a levy on Russian oil and gas imports – if these are not interrupted – and on the Union’s financial transactions.

European political community. Faced with illiberal forces from Moscow to Beijing and the desire of certain powers to change the liberal international order, it is essential that the 27 Member States, the 6 Western Balkans and the 3 new candidates affirm the values ​​they share. The members of this European Political Community would meet on the sidelines of the European Councils in June and December. Its purpose would of course be to explain the conclusions of the Councils. Above all, it would be to assess the state of the continent, to propose continental initiatives (energy, transport, health, for example) and to create a European feeling of belonging and solidarity. The countries of the European Economic Area, Switzerland and Turkey could be observers.

By Pierre MIREL

Pierre Mirel, Doctor of Public Law (University of Poitiers), served in the French embassies in Cairo (1971-1974) and Saigon (1974-1976), as well as at the International Institute of Public Administration, Paris (1979-1981).
He joined the European Commission in 1981, where he was Director for accession negotiations with Hungary, Slovakia, the Czech Republic and Slovenia, then Croatia and Turkey, before being responsible for the Western Balkans until his retirement at the end of 2013.
Lecturer at Sciences Po-Paris since 2010 on the EU and its neighborhoods, he has published articles at the Robert Schuman Foundation on these themes. He continues to intervene in the Balkans (training, seminars, missions). He also published ”  The Egypt of Ruptures  “, Ed. Sindbad, 1982.

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