Andrew Duff, Senior Fellow at European Policy Centre - Written Evidence (RUI0001)

MEMORANDUM OF EVIDENCE TO THE HOUSE OF LORDS EUROPEAN AFFAIRS COMMITTEE: IMPLICATIONS OF RUSSIA’S INVASION OF UKRAINE FOR UK-EU RELATIONS

Andrew Duff [1]

The Committee will be well aware that the invasion of Ukraine has propelled forward the prospect of that country’s membership of the European Union. Already its Association Agreement of 2014 puts Ukraine on a stronger footing than the UK in respect of the EU relationship. That Agreement, as amended over the years, aims at full Ukrainian integration with the EU’s Single Market plus ever closer political cooperation. Although the pretence was made at the time of its signature that the Association Agreement should not be conceived as a prelude for EU accession, subsequent events have rendered that pretence obsolete.

Nevertheless, the fact of Russia’s invasion coupled with the very difficult task Ukraine already faced in meeting in full the EU’s accession criteria makes for a very long-drawn-out candidacy. There is no prospect of the membership criteria being relaxed just for Ukraine for two reasons: (i) the EU is too weakly governed to be able to shoulder the burden of a large, poor and fragile 28th member state; and (ii) special treatment for Ukraine would be for the Western Balkans (and Moldova) an intolerable insult.

Furthermore, there is no consensus among the 27 member states about the future of enlargement policy in general or about the salience of the link between the widening of Union membership and the deepening of integration. While most acknowledge that the Treaty of Lisbon (2007) is unfit for the purposes of a Union of 30 plus member states, many fear that referendums held to sanction either a revised treaty or an accession treaty would fail to survive nationalist and populist backlash.

The European Parliament and Commission are undertaking efforts to overcome this stalemate. Faced with the imperative of the Ukraine question, both bodies are about to make substantive proposals for treaty change. Parliament has indeed already made one formal proposal to amend Article 48(7) of the Treaty on European Union, the passerelle clause, to reduce the prevalence of the national veto in Council.[2] In her State of the Union speech to the Parliament on 13 September, President von der Leyen promised that a Commission ‘pre-enlargement review’ of policies, institutions, budget and security aspects will be delivered to the Council in the first half of 2024.[3]

Adaptation of the EU’s accession criteria and processes are intended to feature as part of these pre-enlargement reviews. New methodology may be proposed to allow partial membership rights to apply to candidate countries that make steady and verifiable progress towards accession. This implies granting applicant countries greater participation in the work of the EU institutions as and when chapters in the official accession catalogue are closed.

Such step-by-step assimilation will help incoming member states become better acclimatised to the demands of EU membership. Innovatory confidence-building measures should assist the EU both in managing its periphery and in reducing the political divisions among existing member states about enlargement. The EU badly needs to widen its options and multiply the instruments in its armoury if it is to cope more capably with its unstable European neighbourhood.

Consistent with this strategy would be the creation of a formal new category of EU affiliate member state.[4] This provision would be installed in the EU treaties at the time of their next amendment (putatively Article 49a TEU).

The class of affiliate membership would be designed to suit the needs of: (i) candidate states as a probationary measure preparing for full accession (such as Ukraine); (ii) existing member states preferring relegation from the core federal project of the Union (such as Hungary); and (iii) other European states seeking a privileged partnership with but not full membership of the Union (such as the United Kingdom).

While each affiliate member would negotiate a bespoke treaty with the Union to meet their particular circumstances and objectives, some general conditions would apply to all affiliates to ensure a fair balance between rights and obligations and to protect the integrity of the acquis communautaire. One of these conditions must be adherence to Article 21 TEU that sets out the principles and objectives of EU common foreign and security policy.

Affiliate members wishing to contribute to the planning and operation of EU foreign, security and defence policies would subscribe additionally to other relevant provisions of the EU treaties, notably Article 42 (including permanent structured cooperation and the obligation of aid and assistance under attack). This would be an obvious move for non-EU NATO members, notably Britain, Iceland and Norway. It should also be an attractive option for Ukraine, not as a substitute for but as a complement to — and perhaps precursor of — its own NATO membership.

Affiliate membership would imply a significant upgrading of the Union’s current Association Agreement with Ukraine. Moreover, being raised to affiliate status would remedy the democratic deficit inherent in the European Economic Area (EEA) agreements of 1991. The imposition of EU legislation on Norway, Iceland and Liechtenstein without their participation in the law-making process was the main obstacle to the EEA being seriously considered as an option for Brexit Britain.

The precise form of institutional and financial engagement by the affiliate members will be subject to much debate among the EU 27 and between the institutions. No final agreement can be reached before the meeting of the constitutional Convention (Article 48(3) TEU), expected in 2025. All EU institutions, including the European Court of Justice, and EU executive agencies will be involved to some extent in this sea change.

The heart of the matter, however, is that ministers and officials of affiliate member states should be empowered to take part in the legislative decisions of the Council whenever qualified majority voting is deployed on matters that will apply to them directly. This would be the case for all single market legislation.

Such a new form of differentiated integration will only be possible if the Union strengthens the government of its federal core. Only an EU endowed with larger centralised powers could contemplate adopting a more pragmatic strategy towards the affiliation of its neighbours. Brexit removes the British veto on such federal developments.

Any future British government that is seriously determined to repair the damage done by Brexit should be prepared to hitch a ride on Ukraine as that country transitions through affiliate membership towards full EU membership. At the very least, the Ukraine Association Agreement provides a useful template for a UK-EU partnership to supplant the current Trade and Cooperation Agreement. More ambitiously, a British application for affiliate membership of the Union avant la lettre would not go unheeded.

Your Committee can do good service by flagging up the possibility of these constitutional changes in the European Union, by monitoring the progress of the EU’s internal debates, and by encouraging any new UK government to seek observer status at the Convention.

Other scenarios are, of course, available. One is a Russian conquest of Ukraine. Another is that the EU might neglect its constitutional issues and fail entirely to move forward in a federal direction: this would render the EU incapable of enlargement, effectively abandoning its neighbours to their own devices. But of the three scenarios outlined in this memorandum, the first is the most probable and, indeed, desirable.

Received 18 September 2023