In late June, the European Council (leaders from the 27 EU Member States) granted Ukraine and Moldova the status of “candidate countries” for EU membership, and promised Georgia the same once it meets certain conditions. What are the practical consequences of this seminal decision?

In short, the process of preparing for membership in the European Union is fundamentally political and tailored to each specific country and historical moment. For instance, no country in the EU’s history had to simultaneously wage war to defend its homeland and independence while on the accession path. Although there are various precedents, accession criteria, pre-existing funding streams, and established processes, the scale, type, and duration of benefits available to Ukraine from the EU accession path will be unique. As important as the psychological boost to Ukraine from the EU’s political signal, the tangible benefits from Ukraine’s candidacy status will be invaluable.

Historical Precedents

Notwithstanding four earlier rounds of enlargement in the 1970s-1990s (Denmark, Ireland, UK, Greece, Portugal, Spain, Austria, Finland, and Sweden), significant EU pre-accession funding started with the enlargement process across Central and Eastern Europe (CEE) after the end of the Cold War. The first major program, PHARE (Poland and Hungary Assistance for Restructuring their Economies), launched in 1989 to cover these two countries and soon expanded to eight other candidate countries to prepare them for EU membership. It distributed about €16 billion between 1990 and 2006.  There were also two targeted funding programs for the environment and transport (ISPA) as well as agriculture (SAPARD), which distributed an additional €5 billion.

In 1993, four years before opening formal accession negotiations with the CEE countries, the European Council in Copenhagen set out general guidelines for EU membership, as well as these funding programs (Copenhagen criteria):

  • political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
  • economic criteria: a functioning market economy and the capacity to cope with competition and market forces;
  • administrative and institutional capacity to effectively implement EU law (acquis communautaire) and ability to take on the obligations of membership.

The European Commission assessed each country’s readiness for EU membership in annual reports. It tracked the progress of negotiations across around thirty separate chapters of topics (see, e.g., Poland’s report in 2003). And it identified priority areas for improvement.

In addition to the CEE precedent, the other main process of pre-accession funding has applied to the Western Balkans. Since 2007, the Commission has distributed funds under the Instrument for Pre-Accession Assistance (IPA), which was established under the EU’s 7-year multiannual financial framework. For the period 2007-2013, it had a budget of €11.5 billion; for 2014-2020, €12.8 billion; for 2021-2027, €14.2 billion. Its current beneficiaries are Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia, and Turkey (with Bosnia and Kosovo as “potential candidate countries”). Its funding streams are divided into five categories: rule of law, fundamental rights and democracy; good governance, EU acquis alignment, good neighborly relations and strategic communication; Green agenda and sustainable connectivity; competitiveness and inclusive growth; and territorial and cross-border cooperation.

EU candidate countries can also participate in EU programs, agencies, and committees, as determined on a case-by-case basis, to help them become more familiar with EU policies and to facilitate cooperation. There are several illustrative examples:

  • Horizon Europe provides funds for research and innovation;
  • Erasmus+ funds education, training, youth, and sport programs;
  • EU4Health finances strategic action in promoting health;
  • the InvestEU fund provides resources for sustainable investment and innovation;
  • the Digital Europe Programme enables digital technology to business, citizens, and public administrations;
  • the Connecting Europe Facility is available for cooperation with third countries (such as the UK) and identifies the need to address infrastructure gaps among Member States, including with candidate and potential candidate countries;
  • the European Social Fund Plus’s Employment and Social Innovation (EaSI) aims to foster better labor market and social policies using analytics-based research
  • researchers or public bodies from candidate countries may also participate in the Research Program of the Research Fund for Coal and Steel, although without receiving any financial contributions; and
  • the LIFE Program funds climate action and clean energy.

This enables individuals and organizations to benefit from additional funding opportunities available in these areas.

Candidate countries have also access to technical assistance through the TAIEX program (Technical Assistance and Information Exchange), which organizes workshops, expert missions, and study visits. The Fiscalis program for 2021-2023, which establishes cooperation among Member States in the field of taxation, is also available, as is the Customs 2021-2027 cooperation program. Candidate countries may also join the Union Civil Protection mechanism, which coordinates the civil and humanitarian response following disasters. Similarly, they can benefit from the European Solidarity Corps during national emergencies.

In case of some organizations, candidate countries may only participate as observers: for example, observer status is offered to candidate countries to participate in the European Union Fundamental Rights Agency (EUFRA), the function of which is to protect and research human rights. Judges from candidate countries may also be invited as observers to participate in the European Judicial Network, which works to promote cross-border judicial cooperation in civil and commercial matters. Similarly, the Justice Program, which works to promote democratic values and the rule of law, offers training to candidate country judges as observing members. Candidate countries may also attend, with observer status, the European Security and Defense College (EDSC), which provides strategic training to civil servants and military personnel on the EU’s Common Security and Defense Policy (CSDP).

Accession Process

There is no automaticity to the accession path: whereas the CEE countries took approximately 10 years to complete the process, both North Macedonia and Turkey have been candidate countries for 18 years. Turkey, in particular, had applied for membership already in 1987.

Now that Ukraine has EU candidacy status, the Commission will need to prepare, and the Council of the EU will need to unanimously approve, a framework or mandate for formal negotiations with Ukraine. Historically, this step has taken several years, although in principle it could be expedited, just as Ukraine’s application for candidacy status was accelerated.

Negotiations are conducted across 35 areas, grouped into six clusters: fundamentals; internal market; competitiveness & inclusive growth; Green agenda & sustainable connectivity; resources, agriculture & cohesion; and external relations. Once talks are concluded, the final agreement must be approved by the Commission, Council, and Parliament and the accession treaty must be ratified by each EU Member State pursuant to their domestic procedures. Both the negotiations and ratifications can take years to complete.

Over time, candidate countries can also negotiate improved terms of trade with the EU as they aim for the ultimate objective of eliminating all trade barriers upon accession.

In sum, the process can be a generational endeavor with many steps along the way.

Ukraine’s Benefits from the EU Accession Process

The scale of potential benefits that will accrue to Ukraine as part of its EU accession process may very well dwarf the resources allocated to Central and Eastern Europe as well as the Western Balkans put together. Ukraine is the largest country in Europe by territory (twice the size of Italy) and the sixth in terms of population. Ukraine’s current budgetary needs are estimated around €5 billion per month and the cost of its medium-term reconstruction may exceed €750 billion, based on assessments at the Ukraine Recovery Conference in Lugano on July 4-5.

Since February 24, the European Union has mobilized over €6 billion in financial support for Ukraine, including €2 billion from the European Peace Facility to finance arms supplies from EU Member States to Ukraine. It is also giving Ukraine support through international financial institutions, such as the European Investment Bank and the European Bank for Reconstruction and Development, by providing EU guarantees that enable them to lend to the Ukrainian government and companies.

The European Commission is in the process of setting up an international coordination mechanism—the Ukraine Reconstruction Platform, with Ukraine and the EU in the lead—to map the country’s needs, channel resources, and promote reform. The platform will be open to any country interested in supporting Ukraine. It will also convene a high-level international conference after the summer, with leading experts on reconstruction, to develop a strategy for Ukraine’s reconstruction.

The Commission is also establishing a RebuildUkraine Facility as the main legal instrument for the EU’s financial support, through a mix of grants and loans. It would be embedded in the EU’s budget and modeled on the EU’s €723 billion post-Covid Recovery and Resilience Facility. Given that the financial needs for the Facility vastly exceed the EU’s current budgetary framework, additional resources would be raised through direct contributions by EU Member States (as well as third countries) or through common debt raised by the EU or with Member State national guarantees. DG NEAR will lead administration of the Facility, along with other DGs and the European External Action Service.

While the RebuildUkraine Facility will be the predominant funding stream for Ukraine, much like PHARE for Central and Eastern Europe and IPA for the Western Balkans, Ukraine will also have access to the various EU programs, agencies, and committees that are open to candidate countries (as discussed above). This would help Ukraine learn EU processes as well as obtain technical assistance on various policies. Ukraine can also seek to improve its terms of trade with the EU, as well as other policy measures such as free movement of labor or capital, as it moves along the path to full membership. It already has been granted extraordinary access to the EU’s single market through the EU’s suspension of import duties for one year. Ukraine can now seek to extend the time of the suspension, or even make it permanent, as well as seek to liberalize other areas. Finally, it could leverage its candidacy status to expand its pre-existing partnership with the European Defence Agency.

Next Steps

The long marathon of EU accession has now begun for Ukraine and Moldova, and will eventually commence for Georgia as well. The team at Covington is well placed to advise you on these developments, and how to engage with the relevant decision-makers in these areas.

__________________________

Orla Murnaghan of Covington & Burling LLP contributed to the preparation of this article.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Péter Balás Péter Balás

Ambassador Péter Balás, a non-lawyer, is a senior policy advisor and member of Covington’s Public Policy team. He draws on over 40 years of experience in the field of European and international politics and trade to advise clients on policy related issues.…

Ambassador Péter Balás, a non-lawyer, is a senior policy advisor and member of Covington’s Public Policy team. He draws on over 40 years of experience in the field of European and international politics and trade to advise clients on policy related issues.

Most recently, Ambassador Balás held the positions of Deputy Director General, DG Trade to the European Commission (2005-2014) and Head of the Support Group for the Ukraine in the European Commission (2014-2015). He was previously Ambassador and Permanent Representative of Hungary to the World Trade Organisation.

Ambassador Balás has also held several positions working for the Hungarian Government, including as Deputy State Secretary for International Economic Relations at the Ministries of Economic Affairs (1996-2000) and Foreign Affairs (2000-2002); Assistant State Secretary in the Ministry of Industry and Trade (1994-1996), and Director-General in the Ministry of International Economic Relations in Budapest (1991-1994).

As part of Covington’s global public policy team, Ambassador Balás is part of a market leading group of experienced lawyers and other former senior policymakers. The team advises clients on a range of European public policy issues, including the EU policy-making processes and the functioning of the European institutions.

Photo of Cándido García Molyneux Cándido García Molyneux

Cándido García Molyneux is a Spanish of counsel in the Brussels office of Covington & Burling.  His practice focuses on EU environmental law, renewable energies, and international trade law.  He advises clients on legal issues concerning environmental product regulation, emissions trading, renewable energies…

Cándido García Molyneux is a Spanish of counsel in the Brussels office of Covington & Burling.  His practice focuses on EU environmental law, renewable energies, and international trade law.  He advises clients on legal issues concerning environmental product regulation, emissions trading, renewable energies, energy efficiency, shale gas, chemical law, product safety, waste management, and international trade law and non-tariff trade barriers.  Mr. García Molyneux was very much involved in the legislative process that led to the revision and amendment of the ETS Directive and Renewable Energies Directive.  He is an external professor of environmental law and policy at the College of Europe.

Photo of Bart Szewczyk Bart Szewczyk

Having served in senior advisory positions in the U.S. government, Bart Szewczyk advises on European and global public policy, particularly on technology, trade and foreign investment, business and human rights, and environmental, social, and governance issues, as well as conducts international arbitration. He…

Having served in senior advisory positions in the U.S. government, Bart Szewczyk advises on European and global public policy, particularly on technology, trade and foreign investment, business and human rights, and environmental, social, and governance issues, as well as conducts international arbitration. He also teaches grand strategy as an Adjunct Professor at Sciences Po in Paris and is a Nonresident Senior Fellow at the German Marshall Fund.

Bart recently worked as Advisor on Global Affairs at the European Commission’s think-tank, where he covered a wide range of foreign policy issues, including international order, defense, geoeconomics, transatlantic relations, Russia and Eastern Europe, Middle East and North Africa, and China and Asia. Previously, between 2014 and 2017, he served as Member of Secretary John Kerry’s Policy Planning Staff at the U.S. Department of State, where he covered Europe, Eurasia, and global economic affairs. From 2016 to 2017, he also concurrently served as Senior Policy Advisor to the U.S. Ambassador to the United Nations, Samantha Power, where he worked on refugee policy. He joined the U.S. government from teaching at Columbia Law School, as one of two academics selected nationwide for the Council on Foreign Relations International Affairs Fellowship. He has also consulted for the World Bank and Rasmussen Global.

Prior to government, Bart was an Associate Research Scholar and Lecturer-in-Law at Columbia Law School, where he worked on international law and U.S. foreign relations law. Before academia, he taught international law and international organizations at George Washington University Law School, and served as a visiting fellow at the EU Institute for Security Studies. He also clerked at the International Court of Justice for Judges Peter Tomka and Christopher Greenwood and at the U.S. Court of Appeals for the Third Circuit for the late Judge Leonard Garth..

Bart holds a Ph.D. from Cambridge University where he studied as a Gates Scholar, a J.D. from Yale Law School, an M.P.A. from Princeton University, and a B.S. in economics (summa cum laude) from The Wharton School at the University of Pennsylvania. He has published in Foreign AffairsForeign PolicyHarvard International Law JournalColumbia Journal of European LawAmerican Journal of International LawGeorge Washington Law ReviewSurvival, and elsewhere. He is the author of three books: Europe’s Grand Strategy: Navigating a New World Order (Palgrave Macmillan 2021); with David McKean, Partners of First Resort: America, Europe, and the Future of the West (Brookings Institution Press 2021); and European Sovereignty, Legitimacy, and Power (Routledge 2021).