Ukraine’s Membership Bid Puts Pressure on the European Union

Revise the Enlargement Consensus?

The EU acts on the basis of the renewed 2006 enlargement policy consensus and its “three Cs”: consolidation of the enlarge­ment area, strict conditionality as laid down in the Copenhagen accession criteria, and communication of the objectives, costs and benefits of admitting new countries in order to improve public acceptance of the enlargement. The “Kyiv effect” (Manfred Weber, MEP) could trigger adjustments to all three principles:

Consolidation: The principle of consolida­tion relates to the political commitments the EU has undertaken to countries with an explicit accession perspective, these being Turkey and the Western Balkan states. By making this objective one of the three en­largement process premises, however, the EU indicated to other European states, which in principle can apply for membership under Article 49 TEU, that they cannot per se expect political support from the Union. This point was aimed at EaP coun­tries like Ukraine. Towards them, Brussels drew a line between enlargement and neigh­bourhood policy based exactly on the question of accession perspective.

The EU might now cross this line and state, in keeping with the Thessaloniki model, that the future of Ukraine, Moldova and Georgia is within the European Union. In 2003, the EU sent a political signal of that kind to the Western Balkan states, of which only one, Croatia, has since (in 2013) joined. There are many reasons on both sides why that message fizzled out and the credibility of the accession promise suffered. But Thes­sa­loniki did at least harden the EU’s self-com­mitment inasmuch as a departure from it can be well-nigh ruled out. For the most part, an accession perspective does not yet mean for a country that it will directly become an accession candidate. For that the Council requires it to be able to demon­strate a cer­tain level of preparation for acces­sion nego­tiations. The Council must decide unanimously, and even that status does not mean negotiations will follow directly. In respect of Ukraine, this means that in principle there is scope for a sym­bolic recognition policy at (seemingly) low cost. Furthermore, an acces­sion perspective and a membership appli­cation are not neces­sarily closely linked. An application is the prerequisite for a me­ticu­­lous examination procedure and a recom­mendation by the Commission to enter into negotiations. Three of the five current mem­bership can­didates – Turkey, Serbia and Montenegro – are involved in acces­sion negotiations while Albania and North Mace­donia are still wait­ing for the go-ahead and Bosnia-Herze­govina and Kosovo are only considered to be potential candidates. Every little increase in status has hitherto been disputed in the EU, partly because it is con­ditional on veri­fiable progress by the can­di­dates in fulfil­ment of the accession cri­teria, but also because individual member states pursue in this context their bilateral quar­rels with would-be members and brake processes with a veto. From a Brussels view­point, an accession perspective or indeed a candidate status would provide Ukraine with an ex­cep­tionally quick start. How swiftly matters then progress is hard to say as far as the EU is concerned. The basic rule of accession conferences from start to finish is unanimity. In the entire process there are many indi­vidual veto and intervention oppor­tunities for the 27 governments.

Given a suitably strong political will on the part of all 27 member states the EU could in principle even enter into symbolic negotiations at short notice with the Zelen­sky government in order to send a signal of solidarity and support to the people of Ukraine. That would at the same time make it clear to the Russian aggressor that the EU wanted to relieve Ukraine from its dan­ger­ous in-between status and anchor it firmly in Euro-Atlantic structures. The envisaged Ukrainian membership would then be an expression of the incipient bloc-building.

For countries with a considerable backlog in relation to the EU’s acquis and with serious governance deficits, the time that elapses between membership application and membership can easily be ten to twenty years. Only Germany’s new federal states (Länder) were able to “accede” to the European Communities without delay and without membership negotiations by virtue of their incorporation into the territory governed by the Basic Law.

Conditionality: The requirement of strict fulfilment of the accession criteria was made even stricter by the changes to the methodology of the accession process that France initiated in 2019. In Ukraine’s case and despite the diverse forms of differenti­ated integration that already exist, the EU has very little leeway to reduce the political and economic requirements or to handle selectively the rights and duties to adopt primary and secondary EU law in the new member state. The priorities are protection of the Union’s values (political criteria, Article 2 TEU), the uniformity of the judi­cial area and the functionality and capacity of the EU (economic and acquis criteria). Temporary transitional arrangements – the traditional adjusting screws – would not, in view of Ukraine’s fundamental short­comings in respect of the acquis, be enough to cushion a hasty admission.

Pre-war Ukraine would definitely not have fulfilled the political criteria. On the other hand, the EU lowered its sights on the political criteria when entering into nego­tiations with Turkey. Its leap of faith in Ankara’s will and ability to reform was soon disappointed. The central arena of action will be Ukraine’s specific pre-acces­sion progress toward the EU acquis. In this process the EU can use instruments tried, trusted and new to provide support, for monitoring and to interlock with Ukraine’s economic and political reconstruction and reform programmes. Security policy co­operation is likely in the future, and in contrast to traditional enlargement policy, to play a much larger role inasmuch as post-war Ukraine will be a country with a permanent political and physical line of conflict with Russia, unstable borders and a fragile peace in an unsettled neighbour­hood. The accession talks may be the politi­cal arena on which the wider public is focussed, but they mainly reflect progress and problems in the pre-accession process.

Communication: The EU could argue that some kind of special procedure for the Ukraine was an extraordinary emergency measure, but it would need to communicate the measure as such.

Emergency admission of European states was discussed in the EU in the 1990s im­medi­ately after the fall of the Iron Curtain. Discussion was triggered by precarious inter­nal developments in East-Central and South-Eastern European countries and by the hope that a move of this kind might prevent a dangerous departure from the path of democratization or at least open up a way out of the hostilities in a disinte­grat­ing Yugoslavia.

The Russian war of aggression against Ukraine is, like 1989/90, a caesura and a turning point. Back then the CSCE states most confidently laid the foundations for an all-European architecture of democracy, peace and unity (Charter of Paris for a New Europe). The partial order established by the European Communities in the west of the continent was the political centre of gravity. In 2022, in contrast, a time is dawn­ing that will be characterized by geopolitics and the creation of countervailing power and by an interaction mode of containment and confrontation between Russia on the one hand and the EU and countries ori­ented toward it on the other. Bearing that in mind, the hardship Ukrainians face today is greater than it was for the coun­tries of East-Central Europe in the 1990s, so an emergency admission strategy appears prima facie plausible.

In a nutshell, the EU member states are at liberty to offer Ukraine a membership perspective, to recognize it as an accession candidate and even, albeit only symbolically, to enter into accession negotiations. They would thereby express their solidarity with the Ukrainian struggle for sovereignty and democracy and commit themselves politically to Ukraine joining the EU once it fulfils the terms and conditions. The main difference between this and the pre-war policy on Ukraine would therefore be that it is no longer a question of whether but of when Ukraine becomes a member of the EU.

These decisions would, however, put the other two “Cs”, consolidation and conditionality, on the back burner or undermine them. The EU’s efforts to restrengthen the credibility of its enlargement policy, which took a serious hit in the Western Balkans, will be subjected to an even tougher test if the number of potential new members was extended to include the EaP countries. Sympathy with Ukraine may be very great at the moment and the present circumstances may make special measures acceptable, but opening an accession perspective for Kyiv would mean a revision of cornerstones of the enlargement policy with lasting consequences for the EU27.

The EU might therefore feel it advisable to define in the framework of European treaties a new status of partial or junior membership or to create a new Euro­pean political and economic area with a strong security policy component below the threshold of membership with and for associated third states. This could be a precursor or a permanent alternative to full membership. The construct to be developed would thus be more an intensified EaP with closer institutional links to the EU than a flawed EU membership.

Security and Integration Policy Aspects

If the EU were to open up an accession perspective for Ukraine, it would be a very far-reaching promise. Keeping it would re­quire a prudent strategy that took for­eign, security and integration policy dimen­sions into account. They will here be touched upon only in brief:

EU and NATO: The EU would need to clarify quickly where an enlargement strat­egy for EaP countries stands in relation to NATO and its open door policy. The Atlan­tic alliance does officially adhere to this policy, which is supported by EU states that are also NATO members.

The accession of the EFTA states to the EU in 1995 and the Mediterranean coun­tries Cyprus and Malta in 2004 were the last enlargement rounds involving coun­tries that were non-aligned. Since the Russian invasion of Ukraine, Sweden and Finland have been considering joining NATO more specifically than ever. Only Ireland, Austria, Malta and Cyprus would then be neutral or non-aligned EU mem­bers. This means that traditionally member­ship in NATO precedes membership of the EU, as is, for instance, the case among the candidates in the Western Balkans with the potential exception of Serbia. If, in Ukraine’s case, EU membership were to go ahead or even entry into NATO were de facto to be ruled out, that would mean the EU admitting a geopolitically extremely exposed country in a precarious security situation. Under Article 42.7 TEU EU mem­ber states would be obliged to provide “aid and assistance by all means in their power” to Ukraine as a member state in the event of an armed aggression on its territory. Even if the EU and its members possessed more robust capacities of its own they could not do so without NATO safeguards. In perspective, member states’ mutual aid and assistance would need to be understood more in military and security policy terms than the current wording of the article under the CFSP chapter suggests. Irrespective of membership issues, NATO and the EU ought to coordinate closely their co­opera­tion with EaP states in the area of security and defence. In the 1990s Yugoslav wars the since disbanded Western Euro­pean Union (WEU), as an organization sub­ordinate to the EU, established a new asso­ciated partner status for non-aligned Cen­tral and Eastern European countries. That did not mean the WEU was committed to come to their assistance as it was for its mem­bers, all of which were members of NATO and the EC/EU. But the associated partner countries were thereby regularly involved in a security alliance that served inter alia the purpose of consultation and defence planning. In addition, there was the Eurocorps, a brigade under dual EU and NATO command that served with the Stabi­lisation Force (SFOR) in Bosnia.

The EU and NATO might, for example, set up a joint organization for security policy cooperation with the EaP countries. The core group of this spin-off would be the countries that make up NATO’s European pillar. In the best case they would include the UK, which was, after all, one of the guar­antee powers of the 1994 Budapest Memorandum on Security Assurances. The range of topics could include all aspects of defence, including cyberthreats and pro­tection of critical infrastructure. Above all, however, the new organization would have to deal with security guarantees for Ukraine and the longstanding conflicts in the seces­sionist territories and de facto states of the Associated Trio. The EU would need to con­nect this Euro-Atlantic spin-off with other cooperation and integration formats, espe­cially with the Energy Union, and to link the initiative with the political and eco­nomic measures to strengthen the resilience of the EaP countries. This new organi­zation would be a security policy flanking to EU enlarge­ment and could be a preliminary stage to NATO membership for EaP countries.

How large would the number of new candidates be? Would the political signal of the accession perspective apply only to Ukraine or to the Associated Trio as a whole or would it extend further? That issue and, above all, the problem of NATO membership make it clear that the enlargement strategy must be embedded transatlantically and in security policy terms. It would have to be implemented in a hostile environment that the EU would directly encounter in its new borders as envisaged.

The EU’s absorption capacity: Including Ukraine as an accession candidate would have considerable implications for the medium-term development of the EU. Even if enlargement is seen primarily as a foreign policy instrument, a view likely to predomi­nate in Ukraine’s case, the consequences for the EU’s system of governance and indi­vidual areas of politics must most definitely be taken into consideration. In the years of polycrisis the EU was already struggling with centrifugal tendencies of various kinds. In policy formulation and decision-mak­ing processes it shows clear symptoms of overstretching, the cause of which is not only the number of members but also the heterogeneous nature of their preferences and starting positions. These signs of over­loading can at best be attenuated by the forms of differentiated integration and the transition to majority voting. Each enlarge­ment, especially those that involve un­consolidated democracies with weak econo­mies, increases the pressure of problems and the pressure for reform of the EU. How­ever, capacities for solving difficult tasks, crises and dealing with conflicts of objec­tives and priorities in the EU27 do not increase accordingly. That is why there is much to suggest that the EU should only admit new members once it has reformed its institutions and decision-making pro­cesses. With existing and new assurances to ten countries, the EU is conjuring up a scenario that exceeds by far its absorption capacity – even taking the next two decades into consideration. Accession of Ukraine (population approx. 44 million) and of Turkey (population approx. 84 mil­lion), which has not yet been entirely ruled out, would also shift the EU’s geographical focus to its present periphery. The core Europe around France, Germany and the founding countries might be less and less able to hold together such an overextended EU. Countries might join an EU that was arguably even more strongly integrated than today and bring with them an un­broken nineteenth-century sense of nation­al sovereignty that, taken to its polemical extreme, made them feel as dominated by Brussels as they had been by Moscow.

Today and for the foreseeable future the EU is not ripe to admit EaP countries as new members. To effectively be able to secure the borders with Russia it would have to enlarge its military capabilities substantially within the framework of the Common Secu­rity and Defence Policy (CSDP) and to deepen its cooperation with NATO.

Dealing with the Membership Application

The European Commission and Council will not simply neglect the accession re­quest from Kyiv. The EU will probably not, how­ever, take time to prepare its reply care­fully, weighing up different viewpoints in an internal clarification process. European Council President Charles Michel had imme­diately noted differences between member states on this issue. Commission President von der Leyen has called for a “moment of truth for Europe”.

The EU has at least two combinable ways to deal with the membership application. First, the European Council could, after a recommendation by the Commission, grant Ukraine candidate status directly, as it were, without lead times. This would remain until further notice a purely sym­bolic act and would temporarily earn the EU moral repute. It could encourage Ukraine and bolster it up in the event of genuine cease­fire and peace negotiations with Russia.

That move would surely shunt not only Ukraine but also the Associated Trio onto a track of very lengthy accession negotiations. Georgia and Moldova have already jumped on the bandwagon and submitted applications of their own at the beginning of March – an act the EU had often advised against because it would be too soon and the response would surely be negative. The candidate countries in the Western Balkans will probably also step up pressure on the EU to bring the ongoing or faltering nego­tia­tions to a conclusion.

At the informal EU summit meeting held in Versailles at the beginning of March 2022 the 27 heads of state and government agreed on the second option. Acknowledg­ing Kyiv’s application diplomatically (rec­ognizing Ukraine’s “European aspirations” and its “European choice”) and noted that the Coun­cil had acted swiftly and invited the Com­mis­sion to submit its opinion. That triggers the customary Article 49 TEU pro­cedure. In addi­tion, the 27 national parlia­ments and the European Parliament are in­formed about the application. But an answer to the request is de facto deferred until the end of war and hostilities in Ukraine. A detailed review or screening of the appli­cation by the Com­mis­sion, dealing mainly with assess­ing a coun­try’s readiness for accession in the light of the Copenhagen criteria, cannot be under­taken meaningfully in view of the war and its consequences. That is why at the Ver­sailles summit the EU27 also an­nounced their intention of fur­ther deepen­ing their relations with Ukraine until the Commission’s opinion is publish­ed. The point of reference continues to be the asso­ciation agreement (DCFTA). The Council also in­vited the Commission to submit its opinion on the applications of Moldova and Geor­gia. With regard to Ukraine, the 27 re­assur­ed that it “belongs to our European family”. Over­all, formulas are used that put a damp­er on the high-flying expectations of the pro-accession forces,including not only Ukraine itself but also EU member states like Estonia that are now aggressively advo­cating can­di­date status for Ukraine. They cer­tainly have solidarity with Ukraine in mind, but at least Poland and Hungary, which is more re­strain­ed in its support for Ukraine, could make use of the momentum of secu­ritiza­tion that is sweeping the EU to have the con­flict with Brussels over the rule of law and democracy dropped from the agenda as irrelevant.

The EU should also, in view of the course set in Versailles, wonder how sustainable an accession perspective for Ukraine is if a level-headed cost-benefit calculation by individual member states is set against it and the still unforeseeable geopolitical effects are costed in. As in the case of the 2004 eastward enlargement the EU is running the risk of ensnaring itself in its own political rhetoric (Frank Schimmelfennig’s “rhetorical entrapment”) if it espouses President Zelensky’s moral argumentation. He called on the EU heads of state and gov­ernment and MEPs to back an accession perspective for his country. Such a com­mit­ment would allow decision-makers to show themselves to be Europeans and demonstrate that they were on the side of Ukraine, which was fighting for its rights, its free­dom and its life, and to become an equal member of Europe. He was thereby appeal­ing to the normative foundations of the EU as a peace community and exerting moral pressure on it. Because Ukraine is the vic­tim of the Russian war of aggression and in resisting it is defending those values on which the EU, but also NATO, are founded, it “deserves” (according to the Polish and Lithuanian Presidents speaking in Kyiv on 23 February 2022) candidate status. The more the EU accepts this line of argument, the more difficult it will become to set other viewpoints and interests (absorption capacity, EU security) against it and refer to the technocratic logic of the accession negotiations.

The Perspectives: Ambivalences Remain

The EU has long underestimated or mis­judged the geopolitical implications of enlargement and of the EaP. That was shown in 2013 when Russia’s intervention against Kyiv’s association agreement with the EU was intended to prevent Ukraine from turning towards the conceptions of international order of the West and its orga­nizations. The EU had/has offered its eastern neighbours a far-reaching and ever closer association, if only in a cooperative environment, i.e. with a non-revisionist Russia, including development opportunities up to and including membership, which the EU has never ruled out.

If the EU embraces the geopolitical logic, the war in Ukraine will mark the end of the era of incremental EU enlargement to the east. The end of the Cold War in 1989/90 opened up an unexpected window of op­por­tunity to extend the peace zone in Europe by admitting neighbouring Central and Eastern European states into the Euro­pean Union. The framework conditions for co­operation and integration in Europe were favourable and there was a justified hope of converging views on political order among the CSCE states.

There is much to suggest that the EU is continuing to pursue its enlargement policy under the conditions of the new bloc for­mation in Europe with the aim of consolidating its membership promises. Emergency admission is highly unlikely and regular ac­cession is a very distant prospect for Ukraine. That is why the EU should (at least) in re­spect of the EaP countries devel­op integration and cooperation arrangements below the level of EU membership as out­lined above and improve its own ability to act in all areas in order to be able to assert its values and interests itself. To that extent, ambivalences with regard to Ukraine and other EaP countries will continue to exist. As long as Russia pursues an aggressive and imperial policy toward its neighbours, the EU, to­gether with the United States, must coun­ter­act it by all means and in the longer term.

Nothing forges a stronger bond than a common foe. The war on Ukraine initiated by Putin could have the effect of the exter­nal threat uniting the EU27 in unprecedent­ed political cohesion and consistency in action. The EU has shown in its reaction to the Rus­sian invasion of Ukraine that it is capable in this exceptional situation of projecting power collectively. The basis for that is its economic and financial power and a supra­national executive that must be deepened and secured.