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The Ukraine Application

On February 28, 2022, a few days after the commencement of the conflict with Russia, President Zelensky applied for EU membership.[1] On June 17, 2022, following an accelerated accession process, the European Commission recommended that the European Council grant Ukraine candidate status,[2] and the European Council unanimously approved Ukraine's application on June 23, 2022.[3] However, Ukraine's ongoing candidacy status remains contingent on satisfying the following seven reform demands by the EU: (i) reform of the Constitutional Court; (ii) continuation of judicial reform; (iii) anti-corruption, including the appointment of the head of the Specialized Anti-Corruption Prosecutor's Office; (iv) anti-money laundering; (v) implementation of the anti-oligarchic law, including recommendations of the Venice Commission; (vi)adoption of a media law that aligns Ukraine's legislation with the EU audio-visual media services directive, particularly as regards to empowering the media regulator, transparency of media ownership, and equal market conditions; and (vii) changes in legislation on national minorities.[4]

At the same time, however, the European Commission acknowledged in its candidacy opinion report that Ukraine has ratified the main international human rights instruments and that its domestic legal and institutional framework regulating fundamental rights broadly follows European and international standards.[5] Like with many potential member states, however, the Commission flagged that gender-based violence remains an issue but, the day following the report's publication, Ukraine's government asked parliament to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (better known as the Istanbul Convention), which Ukraine's parliament then did without delay.[6]

In light of the conflict with Russia, the symbolism of having EU membership is important to Ukraine.[7] The Russian Foreign Minister, Sergey Lavrov, has downplayed the threat to Russia of Ukraine's potential EU membership, noting that the EU is not a military alliance like NATO.[8] Commentators also consider that candidate status will have no immediate effect on the conflict.[9]For many Ukrainians, however, NATO membership would be the natural next step following EU membership.[10] In any event, while candidate status has not yet been the direct cause of any EU military aid or other support toward Ukraine during the conflict, on July 22, 2022, the EU offered two additional assistance measures to Ukraine worth €500 million (approximately USD 510 million) under the European Peace Facility ("EPF").[11] The EU's contribution under the EPF for Ukraine now totals €2.5 billion (approximately USD 2.55 billion),[12] and therefore demonstrates the EU's commitment toward supporting Ukraine during the conflict regardless of candidate or membership status. In any event, commentators suggest that candidate status could providepeople with a morale boost, knowing that they are now also moving toward a more democratic future, more robust individual rights, and fuller integration with the West.[13]

As of July 2022, membership negotiations have not yet ed. The European Commission committed to assess completion of the seven criteria at the end of 2022, after which the next steps will be defined.[14]

The Formal Process

Any country that satisfies the conditions for membership, referred to as the "Copenhagen criteria" (see below), may submit a membership application to the European Council which in turn asks the European Commission to assess the applicant's ability to meet the Copenhagen criteria.[15]

The Copenhagen criteria are based on three pillars: (i) the political pillar includes respect for democracy, the rule of law, and human rights; (ii) the "economic" pillar requires the applicant to have a functioning market economy; and (iii) the "administrative and institutional" pillar requires the applicant to incorporate the EUacquis communautaire, the accumulated legislation, legal acts and court decisions that constitute the body of EU law.[16]

If the European Council unanimously approves the application, the applicant is designated candidate status. Based on the Commission's opinion, the Council then decides on a negotiation mandate for the applicant to accede to the EU as a member.[17] During the negotiation process, the EU offers a variety of support to assist the applicant in fulfilling its membership mandate. This support includes offering: (i) trade concessions; (ii) economic and financial assistance; (iii) assistance for reconstruction, development and stabilization; and (iv) the drafting of stabilization and association agreements entailing mutual rights and obligations between the EU and the applicant country.[18]

Practical Considerations

A recent poll showed that 69 percent of Ukrainians expect Ukraine to join the EU within the next five years.[19] However, while the President of the European Commission, Ursula von der Leyen, stated that she supports Ukrainian accession, she emphasized that the process will take time.[20] Indeed, given the number of reforms required for Ukraine to even maintain its candidate status, it has been suggested in some corners that a period from ten to twenty years after the conflict ends would be a more realistic timeframe.[21]

One additional obstacle for Ukraine is that it has contested borders, including Crimea and parts of Ukraine's Donbas region which could remain under Russian control for the foreseeable future.[22] At the same time, however, the EU already set a precedent for admitting a country with unsettled borders. In May 2004, the EU admitted Cyprus as a member notwithstanding the fact that the country has long been divided by Turkey's occupation of Northern Cyprus.[23] The difficulty for Ukraine, however, is that Turkey is (at least formally) an EU candidate country, while it is very unlikely that Russia would consider applying for EU membership in the foreseeable future.[24]

There is popular support for Ukraine to become an EU member, even among the general public: a recent survey found that 57 percent of people living in EU member countries supported Ukraine joining the EU, compared with only 19 percent who opposed it.[25] Therefore, given the practical difficulties faced by Ukraine described above, it is possible that the EU may consider changing its membership criteria.[26] At the very least, it may introduce a new tier of EU "associated" countries-a status short of full membership-similar to the suggestion of French President Emmanuel Macron to create a wider "European Political Community."[27]