Admitting Ukraine to the EU: Article 49 TEU is the ‘Special Procedure’

Abstract

The authors analyze the history of EU Enlargement Law as well as Article 49 TEU and the legal political framework surrounding it across the different rounds of enlargement to demonstrate that as EU law stands today, Ukraine can join the European Union virtually immediately: the law does not stand in the way – lacking political will does. Delving into the modalities of ‘pre-accession’ the authors argue that its deployment in the case of Ukraine will be not only counter-productive, but also dangerous. Besides producing Poland and Hungary as members and thus failing to deliver on the core promise of lasting entrenched liberal democratic transition, ‘pre-accession’ is also not required by the Primary Law of the Union. Indeed, a handful of successful enlargements was concluded without pre-accession. Given the moral imperative of offering Ukraine a European path as well as the dangers that yet another failed pre-accession would bring, it is evident that a radically new approach to accession needs to be tested out in the case of Ukraine. This radically new approach should be closely connected to the text of Article 49 TEU, which contains the procedural rules governing enlargements. A pure and clear application of this article without pompous ‘pre-accession’ techniques sponsored by the Commission in the context of the latest enlargement rounds, which failed the Union and the populations of Hungary and Poland, would result in a de facto new and sped-up accession procedure serving the interests of Ukraine and the EU in the best possible way.

Keywords: EU Law, Article 49, Pre-accession, EU enlargement, Ukraine, EU values, conditionality