The EU-Ukraine Association Agreement. An Innovative Instrument of Hierarchical External Governance by the EU?

Table of contents

1.Introduction

2.The External Governance Approach

3.The EU-Ukraine Association Agreement
3.1.Genesis of the Agreement
3.2.EU legal basis and competencies
3.3.The Association Agreement - an innovative legal instrument

4.The EU Association Agreement with Ukraine - a hierarchical mode of EU External Governance?

5.Conclusion

Reference list

Abbreviations

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1. Introduction

The enlargement waves of the European Union (EU) in 2004 and 2007 had led to an ‘Enlargement Fatigue’ (see e.g. Schimmelfennig, 2008). In this context, the European Neighbourhood Policy (ENP) was developed in order to offer alternative privileged relationship to the 16 EU neighbouring countries (European External Action Service, no date). These policies, which certainly are a focal point of European foreign policy, are mainly based on the political instrument of conditionality, however without the prospects of accession.¹ This conditionality in general includes a process of legislative approximation. In this way the EU´s acquis is projected partly on non-member countries. This process has inspired Lavenex and others to theorize the so-called ‘External Governance Approach’ which is an attempt at “analysing forms of integration into the European system of rules that remain below the threshold of membership” (Lavenex and Schimmelfennig, 2009, p.792). According to the authors, External Governance can have different characteristics and as such be based on either hierarchy, networks or markets.

This paper argues that the Association Agreement (AA) between the EU and the Ukraine that includes the establishment of a Deep and Comprehensive Free Trade Area (DCFTA) is a prominent example of EU External Governance as it is an unprecedented, innovative legal instrument that will lead to the adoption of a large part of EU laws into Ukrainian national law. The paper hypothesised that the mode of this External Governance relation is rather hierarchical than network- or market-based.

The AA with Ukraine served as a template for similar agreements with Moldova and Georgia and replaces the outdated Partnership and Cooperation Agreements (PCA) with these countries. It recently shifted into the focus of the public in the light of the dramatic events in the Ukraine, starting with the unexpected refusal to sign the Agreement by Ukraine´s former President Yanukovych in the late 2013 (Dragneva and Wolczuk, 2014, p.214). As such alone, it attracts the interest of scholars of International Relations and European Foreign Policy already. Furthermore, it is of significance to the EU itself. Former President of the European Council Van Rompuy had called it “the most advanced agreement of its kind ever negotiated by the European Union” (van Rompuy, 2013). Therefore, analysing this Agreement more in detail is crucial to understanding new EU external policies towards its neighbours.

After an explanatory introduction to the notion of External Governance as a theoretical basis, the paper will try to assess the EU-Ukraine Association Agreement more in-depth. After a short overview over the genesis of the Agreement over the last years, the paper will briefly address the internal legal basis and competencies within the EU with regard to the Agreement. Concluding this empirical chapter, this paper will point out the most important innovative legal aspects of the EU- Ukraine Agreement. These will be of relevance for the final part of this paper in which the main hypothesis − that with the Agreement, the EU is setting rules beyond its borders as part of its External Governance in a hierarchical way − will be assessed. In the concluding section, the findings of the paper will be summarized.

2. The External Governance Approach

The word ‘governance’ has rapidly become a popular term over the last years which has been used with different meanings in different contexts, often in a vague manner. According to the Oxford Dictionary, governance merely assigns “the activity of governing a country […] or the way in which a country is governed” (Oxford Dictionaries, no date). The author of the theoretical framework that will be the basis of this paper, Sandra Lavenex, uses the term ‘governance’ as designating a certain form of political organization which cannot be described adequately by concepts of sovereign states anymore (Lavenex, 2004, p.682). Following Lavenex, the term was chosen because it is able to capture this “multi-level and multi-actor constellation” that the EU and its relations to third countries constitute (ibid.). While governance approaches often focus exclusively on internal governance processes within the respective political entity that is being analysed², the concept of External Governance adds an outside perspective that can be useful for the studies of EU external relations.

The notion of External Governance has been introduced and substantiated significantly by Lavanex in cooperation with changing renowned academics. In a notable paper of 2009, Lavenex and Schimmelfennig address the general concepts of the approach (Lavenex and Schimmelfennig, 2009). They argue, that over the last decades, the European Union has expanded its external relations from traditional fields of cooperation as external trade to various policy areas. This is due to the fact that these traditionally domestic areas, now falling under the legislative competence of the EU, rapidly develop an external dimension beyond EU borders. Therefore, in the framework of the its external relations and foreign policy, the EU attempts to influence these external effects by transferring its rules and policies - usually formalized in the acquis communautaire - to third countries. It is the objective of the concept of External Governance to analyse this process and by doing this, to “capture the expanding scope of EU rules beyond EU borders” and the “extension of internal rules and polices beyond formal membership” (ibid., p. 791). Subsumed, a definition used by Lavenex and Schimmelfennig to describe the notion of External Governance is the following: “external governance takes place when parts of the acquis communautaire are extended to non- member states.” (Lavenex, 2004, p.683).

Yet, the fact that EU rules are transferred beyond its borders does not allow conclusions on the character of this form of External Governance. For example, it can be the result of horizontal cooperation and include participatory elements, while in other cases, a more vertical, almost hierarchical relationship between third countries and the EU can be observed. To address this issue, the authors draft a categorization of three different modes of EU External Governance, based on hierarchy, networks, and markets (Lavenex, Lehmkuhl and Wichmann, 2008). These three types will be further explained hereafter.

Hierarchical governance describes a “mode of coordination characterised by a strongly legalised and institutionalised asymmetric interconnection between the EU and a third country” (Lavenex, Lehmkuhl and Wichmann, 2009, p.815). Furthermore, according to the authors, a hierarchical mode of External Governance is given when “the conduct of a non-member state is bound by the predetermined obligations of the acquis communautaire, and when there is an independent judicial review of the conduct of the non-member state” (ibid.). While formally retaining full sovereignty towards the EU, “important sections of third-countries´ autonomy over their legislation” can be undermined by this mode of External Governance (Lavenex and Schimmelfennig, 2009, p.797). In contrast to hierarchical modes of coordination, in a network constellation the parties act in a symmetrical relationship between (at least) formally equals. In this mode, third countries bring in their own priorities and influence the selection of topics they want to cooperate in (Lavenex, Lehmkuhl and Wichmann, 2009, p.816). This form of governance is often based on mutual agreement and commitments are in general monitored politically rather than judicially (ibid.). In contrast to the aforementioned modes of governance, market-based External Governance, according to Lavanex and Schimmelfennig, describes a relatively weak formal relationship (ibid., p.815) that is the result of “competition between formally autonomous actors” (Lavenex and Schimmelfennig, 2009, p.798), e.g. through ‘governance by externalization’ when externalities for third-party actors arise from the European Single Market (ibid, p.799).

Assessing the academic value of the concept of External Governance, the paper comes to the conclusion that it can offer an alternative way of analysis, while it cannot perform as a theory itself since it does not question the reason behind the legislative approximation between the EU and its neighbours³. The External Governance Approach must be seen in the broader theoretical framework of institutionalist Europeanization studies. The strength of the notion by Lavanex et al. lies in its analytical and descriptive features. As the enlargement option supposedly has exhausted for the time being, the concept of External Governance is able to capture modes of integration into the system of EU rules without the prospect of membership (Lavenex and Schimmelfennig, 2009, p. 792). The weakness of the concept is its almost exclusive focus on the promotion of EU rules and policies and their adoption by non-member states despite an initially much broader research agenda (Weber, 2012, p.79). As such, it has a very specific, limited scope that has been applied primarily to different aspects of the ENP (see e.g. Weber, Smith and Baun, 2007, and Lavenex, 2008). For the purpose of this paper though, the named limitations of the approach do not constitute an obstacle as the research subject falls within the scope of the notion.

3. The EU-Ukraine Association Agreement

3.1. Genesis of the Agreement

In the context of the Eastern Enlargement with the Central and East European Countries, the EU established the ENP with its neighbouring countries whose initial objective with regard to trade and economic issues was to offer “the prospect of a stake in the EU´s internal market” to the partner countries (European Commission, 2003, p.10). Already within the framework of the ENP, the European Commission proposed a significant degree of economic integration in return for legal approximation (Van der Loo, Can Elsuwege and Petrov, 2014, p.4). In the light of the Global Europe Strategy introduced by the European Commission in 2006, the objective of trade liberalization gained further importance as the strategy includes plans to negotiate several DCFTAs with its neighbours (European Commission, 2006). In 2008, the relations with the Eastern third- country neighbours were integrated in a new, specific EU policy framework called Eastern Partnership (European Commission, 2008). These included the first concrete plans to the negotiation of DCFTAs. These new agreements should replace the outdated Partnership and Cooperation Agreements (PCAs) with the respective countries - including Ukraine - that had been concluded with the former Soviet Republics in the middle of the nineties (Van der Loo, 2013, p.224). The first country to whom the conclusion of an Association Agreement, including a DCFTA, was offered to was the Ukraine, in 2008 (EU-Ukraine Summit, 2008), followed by similar offers to the Eastern Partners one year after⁴.

The Council authorized the Commission to open negotiations with Ukraine for the conclusion of a new Agreement to replace the PCA on 22 January 2007 (European Commission, 2013). A prospect of membership was explicitly excluded at the beginning of the negotiations (Tiede, Spiesberger and Bogedain, 2014, p.153). The negotiations were completed in 2011, however, the Commission refused the initialling of the Agreement due to disagreements over the detention and sentence of the former ministerial president Julia Timoschenko (Böttger, 2014, p.96). At the EU-Ukraine summit in February 2013, the EU formulated three prerequisites towards the Ukrainian Government under Yanukovych for the signing of the Agreement: the abolishment of “selective justice” as well as electoral and judicial reforms (Kempe, 2013, p.317). Furthermore, Commission and Council alike had stated that the option to sign the DCFTA certainly excluded the possibility of becoming part of a Eurasian Union with Russia that had been proposed to Ukraine, building on the existing customs union between Russia, Belarus and Kazakhstan (Lippert, 2014, p.282; European Commission and High Representative of the European Union for Foreign Affairs and Security Policy, 2013, p.22; Van der Loo, Can Elsuwege and Petrov, 2014, p.5).

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¹ Several academics have worked on the ENP regarding the effectiveness of conditionality, e.g. Schimmelfennig and Scholtz (2007), Schimmelfennig (2008) and (2010). For Ukraine in particular see for example Wolczuk (2009).

² For different forms and dimensions of governance approaches, see e.g. Peters and Pierre (2009). 2

³ In fact, as Peters and Pierre point out, an important aspect of all governance approaches is to identify the ‘who’ and the ‘how’ of governance (Peters and Pierre, 2009, p.92).

⁴ At that point, Southern neighboring countries were already associated to the EU by Euro-Mediterranean Association Agreements (EMAAs) which include a limited free trade area (FTA) that covered only trade in goods (Van der Loo, 2013, p.223).