Europe +1: Ukraine has received the status of a candidate for EU membership. How not to waste a chance
The candidacy is accompanied by a specific to-do list regarding reforms and legislative changes. How easy are they to implement and enforce? And how long will it take?
Today, on June 23, the two-day EU Summit in Brussels begins, where Ukraine will be granted the status of a candidate for EU membership. This forecast does not even provide a conditional method, the decision is practically guaranteed and does not contain any intrigues. Earlier, the European Commission approved a recommendation to the Council, and on the eve of the summit, Euractiv published the latest draft conclusions, which show that the European Council has decided to grant Ukraine and the Republic of Moldova the status of a candidate country. According to the French Foreign Minister, Clement Bonn, “a consensus has been reached” on the Ukrainian issue among the EU countries. Even the Prime Minister of Hungary, Viktor Orbán, who is considered to belong to the opposition, has publicly stated that he would vote for granting Ukraine the status of a candidate.
An additional argument in our favour was the ratification of the Istanbul Convention, which was approved by the Verkhovna Rada on Monday, June 20. This long-term gap was an obstacle to Ukraine's European candidacy, according to the opinion of some countries, especially Scandinavia.
According to European Commission President Ursula von der Leyen, Ukraine is “a European state that has demonstrated the stability of its institutions that guarantee democracy, the rule of law, as well as human rights and respect, and the protection of national minorities.”
Without denying the validity of any of these characteristics, it should be noted, though, that their presence by February 24 was not enough to generate such rapid European integration progress.
Georgian Prime Minister Irakli Garibashvili was the most outspoken, albeit undiplomatic, as he said he would not “envy Ukraine” because the status was granted because of the war, and the candidacy was paid for by huge casualties and destruction. And Moldova should be envied in this situation, as it has successfully squashed into the European half-open door. It should be recalled that a similar attempt by Georgia was unequivocally stopped with reference to the country's lack of democracy.
Thus, the European Commission, for its part, has fulfilled its political and moral obligations, throwing the ball to the side of Ukraine, for which everything is just beginning. In order to start EU accession negotiations, Ukraine should meet a number of requirements (seven in total, Moldova has nine), including judicial and law enforcement reform, anti-money laundering, and copyright enforcement.
Candidate status does not have a deadline – i.e. the preparation can continue until the European Commission recognizes that the country meets all the criteria. Given the scale of the necessary reforms, some of which categorically cannot be carried out during the active phase of hostilities, the path to EU membership is calculated in years. However, the very fact of official recognition of Ukraine's European prospects, as well as access to multibillion-dollar European budget lines specifically for candidates, is an unprecedented civilizational leap.
Mind analysed the list of requirements to be met before the start of EU accession negotiations and assessed the complexity of each of these requirements.
To adopt and implement legislation on the procedure for selecting judges of the Constitutional Court of Ukraine. In particular, on the pre-selection process based on an assessment of their integrity and professional skills, by the recommendations of the Venice Commission
A number of scandals, in particular related to attempts to remove the head of the Constitutional Court Oleksandr Tupytsky, unequivocally show that this Ukrainian sphere needs to be reformed even regardless of the European candidacy.
“The Constitutional Court in Ukraine performs its functions only formally and is extremely inefficient,” says Oleh Bereziuk, director of the Institute for Global Politics and Law.
If there is political will, this requirement of the European Commission can be fulfilled relatively quickly: all the necessary bills have been developed and can be voted on. The main task is to ensure a transparent procedure of judges' appointments to prevent the entry of politically dependent persons.
“For this purpose, we need to radically change the procedure for appointing judges, following the rules of pre-selection based on an assessment of their integrity and professional skills. International organisations and assemblies of judges of the Constitutional Court will delegate candidates and form a staff,” explains lawyer Tetyana Danylenko, head of the Law Office named after her. “In turn, the qualification commission will form a list of candidates (at the request of the President, parliament, and congress of judges) based on the competition commission and will supplement it annually.
Judges of the Constitutional Court of Ukraine will be selected by the Unified Qualification Commission, which makes decisions by 2/3 of the votes of its members.”
To complete the integrity check of candidates for members of the Supreme Council of Justice and selection of candidates for the High Qualification Commission of Judges of Ukraine
The implementation of this point is also directly correlated with the political will and readiness of the authorities to lose leverage over judges.
The controlled, albeit indirect, judiciary has been the cornerstone on which informal presidential power leans in a country where the institution of the presidency is limited in terms of official functions.
Distrust of the judiciary, according to the vast majority of foreign investors, has become one of the main obstacles to investments. “Judicial reform, which has dragged on for years, has a detrimental effect on the country's development, as the country is losing its attractiveness to potential investors,” says Ms. Danylenko. “Competitive procedures for the position of judges have been going on for years and have not found their logical conclusion with the full staffing.”
Like many others, judicial reform turned out to be unfinished. Created on July 14, 2021, the new independent body – the Ethics Council, which is to assess the integrity of all candidates for the Supreme Council of Justice and conduct a one-time assessment of all current GRP members for compliance with professional ethics, is not able to work at full capacity.
The Ethics Council may recommend ten or more candidates out of 33 nominated to the Supreme Council of Justice. “The appointment of exactly ten candidates for the positions of members of the SCJ will make the body authoritative and unblock the procedures for dismissal, removal of judges, and consideration of disciplinary complaints. For this purpose, amendments should be made to the law, which will allow the appointing entities to appoint all candidates recommended by the Ethics Council to all vacant positions during the martial law,” Ms. Danylenko explains.
To ensure that anti-money laundering legislation corresponds to FATF standards
On the one hand, this point is so easily enforceable that it seems as if it was specially added by well-wishers so that Ukraine could easily put a done mark under it.
The FATF has no global claims against Ukraine, even despite the fact, that in the early 2000s Ukraine was on the “black list” due to weak control over the insurance sector, from which it was excluded after the establishment of the State Commission for Regulation of Financial Services Markets. Issues on compliance with the rules of FATF also arose in the last year of Viktor Yanukovych's rule, but these issues were removed after the signing of the Association Agreement with the EU.
And now, for the first time in eight years, Ukraine is once again on the brink of a scandal with the FATF, as the authorities have delayed the synchronisation of legislation on cryptocurrencies. “It was in October 2021 that the FATF updated its anti-money laundering recommendations, having dedicated most of its innovations to virtual (digital) assets. The Ukrainian legal framework for virtual assets was developed before the publication of these new recommendations,” explains Vitaliy Shapran, a member of the NBU Council.
According to the report of the fifth round of inspections of Ukraine by the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL), Ukraine has shortcomings in accordance with FATF international standards. It reports annually about the elimination of such.
In fact, this means that, in addition to the fact that due to the war, cooperation with Ukraine is highly risky for financial institutions, a number of cryptocurrency transactions in our country are not regulated as it is required by the modern practice of combating “dirty money” The piquancy of the situation is that cryptocurrencies were called one of the main channels for withdrawal of capital from Russia.
Thus, the consequences of the implementation will be felt by the crypto and financial markets. “Synchronisation of legislation with current FATF regulations will be most noticeable for those operators who work with virtual assets and cash flow,” says Vitaliy Shapran.
Although the legislator tried to improve the regulation of the cryptocurrency, no real action was taken.
Most likely, this mistake will not be fatal: referring to the war, Ukraine will receive a reprieve for the necessary corrections. The good news, according to Tetyana Dmytrenko, OSCE and UNODC consultant, is that European legislation is also failing to improve 40 FATF Recommendations, especially on new technologies. Thus, at the date of full implementation of the 5 AML Guideline, the terminology of this Guideline no longer corresponded to the updated 15 FATF Recommendation.
However, there are enough rules in European law to regulate financial instruments (MiFID II), and electronic money (EMD2), which includes certain virtual assets. And the so-called MiCA is being developed for all the rest. The European Community is rapidly developing and implementing legislation on digital currencies of central banks (CBDC). Ukraine also has a draft decision of the NBU on e-hryvnia, but it has not been implemented yet.
The EU should also agree on its actions regarding global stable currency projects with the ongoing work of international standard-setting bodies, such as the Financial Stability Board (FSB).
To further strengthen the fight against corruption, in particular at the State level. To complete the selection and appointment of a new Head of the National Anti-Corruption Bureau of Ukraine (NABU) and Prosecutor of Specialised Anti-Corruption Prosecutor's Office (SAPO)
At this point, the European Commission is actually trying to appoint its person to the position of the Head of the Specialised Anti-Corruption Prosecutor's Office. On December 21, the competition for the head of the SAPO ended. The detective of the National Anti-Corruption Bureau Oleksandr Klymenko won, having gained 246 points. His closest competitor, the Prosecutor of the Prosecutor General’s Office of Ukraine Andriy Syniuk – gained 229 points.
The sympathies of the authorities are understandable, the final can be called disappointing for them, judging by the fact that the winner has not been approved yet.
According to ILF lawyer Maryna Kakhnova, Ukraine has a better anti-corruption infrastructure than many EU members, although there are criticisms regarding the work of anti-corruption agencies. “We need to understand that the creation of a system to prevent and fight corruption is not enough, because the key obstacle to overcome corruption in Ukraine is the tolerance of this phenomenon in society. Unfortunately, in today's reality, according to the developers of the anti-corruption strategy, the use of corrupt practices is a far more convenient and efficient way to meet the needs of individuals or legal entities compared to meeting such needs legally,” she says.
A possible solution to this problem could be the digitalization of government services in Ukraine. In particular, the improvement of the project “State in a smartphone”, where the contact with officials when receiving services could be minimised.
To adopt a comprehensive strategic plan to reform the entire law enforcement sector as part of Ukraine's security environment
Reforming the system of law enforcement and justice is crucial to ensure socio-political stability and is an important component of Ukraine's national security.
“First of all, it is necessary to clearly define the competence and delineate the functions of the Ministry of Internal Affairs and the Security Service as well as to ensure reliable control over their activities by the prosecutor's office and the court,” says Oleh Bereziuk, the headmaster of the Institute of Global Politics and Law. According to him, the activities of the recently established NABU, SAPO, SBI, and NAPC should also be critically assessed, and the efficiency of their work and the expediency of independent existence in the law enforcement system should be determined.
“The justice system, which does not fully perform its functions, also needs to be reformed. In particular, there are some serious problems in the sphere of ensuring the execution of court decisions,” the expert emphasises.
The “anti-oligarchic” law should be implemented
This law, adopted at the request of the President's team, is often believed to be useless within Ukraine. However, it seems that the European Commission is quite satisfied with it, as it insists on its implementation. Perhaps, because of realising that in case of presence of independent law enforcement institutions, its rules could become a formidable weapon.
“Today, the Venice Commission is preparing its opinion on this law. So, when it comes to the issue of the effective implementation of this law, the Ukrainian authorities will rely on this very conclusion. After that the recommendations of the Venice Commission will need to be implemented into legislation and only then the law itself will be implemented,” explains Maryna Kakhnova.
She clarifies that at the current stage it is clear that in order for the law to really work, it is necessary to form a register of oligarchs. Getting to the register automatically imposes a number of restrictions on a person, in particular concerning media ownership, participation in large-scale privatisation, and influence on the political life of the country.
To bring media legislation in line with European audiovisual legislation
Despite the emphasis on the media, this paragraph is primarily about the issue of copyright. Ukraine is more civilised In this area, than it may seem – at least in terms of legislative regulation.
As for the media, the relevant provisions of the law on de-oligarchization should be introduced there. “Commercialization and monopolisation of the media pose a threat to national security, as it directly affects the formation of public opinion, ensuring the objectivity of the electoral process and socio-political stability,” says Oleh Bereziuk.
In addition, since the media can be widely used during information warfare, the state will have to find a consensus between freedom of speech and proper control over the objectivity of the information disseminated.
To complete the reform of the legal framework for national minorities in accordance with the recommendations of the Venice Commission and to develop mechanisms for its implementation
The demand was made, apparently, to ensure Hungary's loyalty when voting. As it is known, this country has many wishes, including excessive ones, regarding the Law on the Ukrainian Language and the exclusive rights of residents of the Transcarpathian region.
However, the formulation of this point and the reference to the regulations of the Venice Commission do not leave a chance for Victor Orban to block and manipulate its implementation.
According to the Venice Commission, the Ukrainian authorities were recommended to repeal the provisions of the Law on the Ukrainian Language, which “provide for differentiated attitudes to indigenous languages, languages of national minorities that are official EU languages and languages of national minorities that are not official EU languages.”
In addition, it is proposed to “consider the possibility of abolishing the mechanism of sanctions” for violations of the language law or “at least limit it only to violations in the public sphere and in extreme cases,” as well as to revise the Law on the State Language and remove the rule established for intentional distortion of the Ukrainian language in official documents and texts.
Thus, there is a need to revise the Law on the State language and draft a Law on National Minorities, involving in the consultation process all the interested parties, including representatives of national minorities and indigenous peoples.
Given the politicisation and the great severity of the language issue in Ukraine, it will be very difficult to implement any legislative easings.
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