The EU-Ukraine Association Agreement

1. The EU-Ukraine Association Agreement An Enhanced Institutional Framework for Political Dialogue and Dispute Settlement between Ukraine and the EU Peter.VanElsuwege@UGent.be

2. Outline • A multi-level institutional framework • Political dialogue • Dispute settlement procedures

3. Multi-level Institutional framework (I) • EU-Ukraine summits (Art. 460) • Annual meetings at highest political level to provide overall guidance and discuss issues of mutual interest • Confirmation of existing practice

4. Multi-level Institutional framework (II) • Association Council (Art. 461) • Regular meetings at ministerial level to supervise and monitor the application and implementation of the agreement + discussing any major issues and issues of mutual concern • Power to adopt legally binding decisions! (Art. 463 (1)) • Forum for exchange of information on EU and Ukrainian legislative acts – cf. legislative approximation! (Art. 463 (2)) • Updating or amending annexes – cf. dynamic evolution of EU law (Art. 463 (3))

5. Multi-level Institutional framework (III) • Association Committee (Art. 464) • Regular meetings at senior civil service level to assist the Association Council • Power to adopt binding decisions, if delegated by the Association Council • Special role for the Trade Committee and specialised sub-committees (e.g. on SPS, geographical indications, on trade and sustainable development etc.)

6. Multi-level Institutional framework (IV) • Parliamentary Association Committee (Art. 467) • Regular meetings at parliamentary level to exchange views and make recommendations to the Association Council • Civil Society Platform (Art. 469) • Regular meetings at civil society level to exchange views and make recommendations to the Association Council • Civil society cooperation as integral part of EU-Ukraine relations (Arts. 443-445) • Civil Society Forum on sustainable development (Art. 299) • Parties ‘shall encourage’ involvement of civil society in social and cultural dialogue (Arts 421 and 438)

7. Political Dialogue • ‘gradual convergence on political and security measures with the aim of Ukraine’s ever deeper involvement into the European security area’ (Art. 4) • Including a number of specific aims, inter alia: • Strenghten cooperation and dialogue on international security and crisis management • Foster practical cooperation to achieve peace, security and stability in Europe • Promote principles of independence, sovereignty, territorial integrity and inviolability of frontiers (‘good neighbourliness’) • Strenghten respect for democratic principles, rule of law and good governance, human rights and fundamental freedoms […] and to contribute to consolidating domestic political reforms

8. Fora for political dialogue (Art. 5) • EU-Ukraine summits and Association Council (Foreign Affairs ministers) • At level of political directors, PSC, experts and high officials of military institutions • Making use of all diplomatic and military channels in third countries, UN, OSCE and international fora

9. Clauses on political dialogue (I) • On domestic reform (Art. 6) • ‘common values’ (rule of law, human rights etc – Art. 14) • On foreign and security policy (Art. 7) • Conflict prevention, crisis management and military-technological cooperation (Art. 10) • On regional stability (Art. 8) • Peaceful settlement of regional conflicts, ‘good neighbourliness’

10. Clauses on political dialogue (II) • On accession to the ICC (Art. 8) • Cf. Opinion Ukrainian Constitutional court of 11 July 2001 (N1-35/2001) • On non-proliferation of WMD (Art. 11) • On disarmament, arms controls and fight against illicit trafficing of arms (Art. 12) • On combating terrorism (Art. 13)

11. Dispute settlement (I) • General provision (Art. 477) • Formal notification of other party and Association Council of disputes concerning interpretation, implementation or good faith application of the AA • Not for Trade issues! -> special mechanism (cf. infra) • Consultations within Association Council, Association Committee and its sub-committees • Binding decision of Association Council • Right to take ‘appropriate measures’ if no solution after 3 months (unless violation of ‘essential elements’) • ‘appropriate measures’ does not affect rights and obligations under the trade chapter (unless violation of essential elements)

12. Dispute settlement (II) • On Trade and Trade-related matters • Inspired by WTO DSM • Focus on consultations (Art. 305) • If unsuccesfull: arbitration procedure (Art. 306) • Special conciliation procedure for urgent energy disputes (Art. 309) • Compliance procedure (Art. 311 ff) • Relation with WTO obligations (Art. 324) • DSP under AA without prejudice to any action in WTO framework • BUT: no parallel actions! • Mediation mechanism for measures dealing with the chapter on ‘national treatment and market access for goods’) (Art. 327)

13. Dispute settlement (III) • On regulatory approximation (Art. 322) • Where a dispute arises concerning the interpretation of an act of the EU institutions, the arbitration panel shall not decide the question but request the CJEU to give a ruling on the question. This ruling shall be binding on the arbitration tribunal. • For disputes relating to the approximation obligations in the fields of technical barriers to trade, SPS, service, establishment, e-commerce and public procurement

14. Conclusions • Significant upgrade of institutional framework • Possibility to adopt legally binding decisions and amend annexes creates more flexibility • Enhanced political dialogue • International, regional and domestic political context • Sophisticated dispute settlement mechanisms • Legally binding, focus on compliance and uniform application