EU-Ukraine Association Agreement: Legal, Institutional, and Procedural Aspects

1. Association Agreement: Legal, Institutional and Procedural AspectsCourse number: EUI_S6 Lecturer

2. Aims of the lecture • To familiarize participants with foundations of the Association Agreement, • To allow participants to appreciate the main aspects of Ukraine’s integration with the European Union, • To enhance the general knowledge of EU-Ukraine political integration, • To facilitate understanding of EU-Ukraine sectoral integration.

3. 2007 - negotiations started on “new type” of the EU-Ukraine bilateral agreement, 2009 – EU-Ukraine Association Agenda – as a legal instrument of implementation of the AA, 2011 – EU-Ukraine AA negotiations finished, 2012 – initializing of EU-Ukraine AA, November 2013 - decision on refusal of AA signing reflected a Dignity Revolution in Ukraine. Evolutionary tale on EU-Ukraine relations (legal & political factors)

4. 2014 – signing (partially: political & economic parts), September 2014 – simultaneous ratification of AA by Verkhovna Rada & European Parliament, Spring 2014 - the EU unilaterally introduced trade preferences forUkraine, 2015 – revised version of Association Agenda endorsed by the Association Council. 2017 – EU-Ukraine AA entered into force. Evolutionary tale on EU-Ukraine relations (legal & political factors)

5. The choice of the legal basis of an EU Decision to conclude an international agreement must rest on objective factors which are amendable to judicial review. Those factors must include in particular the aim and the content of the international agreement (e.g. Opinion 2/00, Cartagena Protocol); COM proposal : only Article 217 TFEU (association) – 2009 Prague Eastern partnership Summit (No ENP agreement under art. 8 TEU); Art. 217 TFEU no surprise …. “The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure” AAs create special, privileged links with a non-member country “which must, at least to a certain extent, take part in the Community system” (Demirel, C 12/86). Legal bases for the Association Agreements (Article 8 TEU gone missing?)

6. EU-Ukraine AA belongs to the selected group of “integration-oriented agreements”, i. e., agreements including principles, concepts and provisions of EU law that are to be interpreted and applied as if the third State is part of the EU. The EU-Ukraine Association Agreement, as a so-calledmixedagreementsignedbythe EU andits 28 Member States, requiredratificationby all partiesbeforeitcouldenterintoforce. Key features of the EU-Ukraine Association Agreement

7. Key features of the Association Agreements are: very broad scope providing for multidimensional co-operation; based on “more for more” model with vast legal approximation related effort required to move to the next stages – “conditionality” dynamic approximation with Association Councils empowered to change the annexes with long lists of EU acquis to be complied with, no direct effect (see Council Decisions on signature: “The Agreement shall not be construed as conferring rights or imposing obligations which can be directly invoked before Union or Member State courts or tribunals”). Key features of the EU-Ukraine Association Agreement

8. Past, current and future challenges of the EU-Ukraine AA Dutch Referendum Brexit

10. Aims and general principles of the EU-Ukraine AA Principle of political association & economic integration + conditionality, To promote gradual rapprochement between the Parties based on common values and close and privileged links, and increasing Ukraine's association with EU policies, and participation in programmes and agencies.

11. Aims and general principles of the EU-Ukraine AA Respect for democratic principles, human rights and fundamental freedoms and respect for the principle of the rule of law shall form the basis of the domestic and external policies of the Parties and constitute essential elements of the Agreement, to establish conditions for enhanced economic and trade relations leading towards Ukraine's gradual integration in the EU Internal Market.

12. Political acquis of the EU-Ukraine AA Common values on which the European Union is built – namely democracy, respect for human rights and fundamental freedoms, and rule of law – are also essential elements of the Association Agreement, The phrase “essential elements” links to Art. 478 of the Association Agreement, which provides that in the case of abuse of these principles the Agreement may be suspended.

13. Political acquis of the EU-Ukraine AA • Common values of the EU-Ukraine AA (Art. 2-3): • respect for democratic principles, human rights and fundamental freedoms, • respect for the principle of the rule of law, • promotion of respect for the principles of sovereignty and territorial integrity, inviolability of borders and independence, as well as countering the proliferation of weapons of mass destruction, related materials and their means of delivery.

14. EU-Ukraine political dialogue (Title ІІ) • Aims of the political dialogue include: • promotion of gradual convergence on foreign and security matters with the aim of Ukraine’s ever deeper involvement into the European security area, • ratification and implementation of the Rome Statute of the International Criminal Court (ICC) [of 1998] and its related instruments, • military and technological cooperation with the European Defence Agency (EDA), • gradual convergence in the area of foreign and security policy, including the Common Security and Defence Policy (CSDP).

15. EU-Ukraine political dialogue (Title ІІ) • Fora for the political dialogue: • EU-Ukraine summits, • Association Council (ministerial level), • Regular meetings at Political Directors, Political and Security Committee and expert level, • Parliamentary level within the framework of the Parliamentary Association Committee.

16. Justice, freedom and security (Title ІІІ) • Areas covered by the Association Agreement: • protection of personal data, • comprehensive dialogue on all migration-related issues, including illegal migration, legal migration, smuggling and trafficking in human beings, • non-discrimination in treatment of workers + mobility of workers,

17. Justice, freedom and security (Title ІІІ) movement of persons – parties agree to endeavour to enhance mobility of citizens and to make further progress on the visa dialogue, prevention and combatting of money laundering and terrorism financing, co-operation on combating and preventing criminal and illegal activities, organised or otherwise.

18. Trade and trade-related matters (Title IV) The DCFTA establishes a free trade area for trade in goods over a transitional period of a maximum of 10 years + conditionality based access to the Internal Market + after monitoring procedure on legal & regulatory approximation to the relevant EU acquis.

19. EU-Ukraine DCFTA

20. Enhanced obligations of Ukraine in the spheres of sectoral cooperation with the EU • Intellectual property rights, • Competition rules, • State aid rules, • Principle of transparency (transparency of politics + transparency of cooperation+ exchange of information with confidentiality rules), • Access to administrative bodies & courts.

21. Economic and Sectoral Co-operation (Title V) energy cooperation, macroeconomic cooperation, management of public finances, cooperation in enhancing good governance in the tax area, cooperation on statistical issues, cooperation on environment issues, transport.

22. Economic and Sectoral Co-operation (Title V) cooperation on civil space research and space applications, scientific and technological cooperation, cooperation on industrial and enterprise policy, cooperation in the area of the mining and metals industries, financial services, company law and corporate governance, accounting and auditing.

23. EU-Ukraine AA’s institutional framework Annual EU-Ukraine summits, Association Council (empowered to take ‘binding’ decisions where provided for by the Association Agreement), Association Committee +specific sub-committees.

24. EU-Ukraine AA’s institutional framework Trade Committee (special trade configuration) - all issues related to the DCFTA, complemented by several sub-committees (e.g. SPS, Customs and Trade and Sustainable Development), Parliamentary Association Committee, Dispute Settlement Body, Civil Society Platform.

25. EU-UKRAINE DISPUTE SETTLEMENT MECHANISM

26. Dispute settlement relating to regulatory approximation within the AA In case of doubts about interpretation of AA the arbitration tribunal shall request the Court of Justice of the European Union to give a ruling on the question, In such cases, the deadlines applying to the rulings of the arbitration panel shall be suspended until the Court of Justice of the European Union has given its ruling, The ruling of the Court of Justice of the European Union shall be binding on the arbitration tribunal.

27. Different legal methods, procedures & terms in the EU-Ukraine AA • Tariff liberalization, • Legal approximation, • Regulatory approximation, • Harmonization, • Adaptation, • Recognition of standards, • Mutual recognition, • Transposition.

28. Dynamic legislative approximation in the EU-Ukraine AA numerous EU acts listed in the annexes of the Agreement have already been replaced or amended in the EU, Association Council has the competence to update or amend the annexes “taking into account the evolution of EU law”, Within the text of AA – competence of other sub-committees of Trade Committee can adopt special decision with the aim to revise the scope of the relevant EU acquis.

29. Relevant links: • EUR-Lex http://eur-lex.europa.eu/homepage.html • EU Law https://ec.europa.eu/info/law/law-making-process/types-eu-law_en • Spheres of EU regulation http://europa.eu/european-union/topics_en • EU Court decisions https://curia.europa.eu/jcms/jcms/j_6/en/ • Chapters of the relevant EU acquishttps://ec.europa.eu/neighbourhood-enlargement/policy/conditions-membership/chapters-of-the-acquis_en (only for informational purposes)

30. Things to remember • Association Agreement creates a comprehensive legal framework for bilateral relations between the EU and Ukraine, • At its heart are provisions dealing with political integration and with trade, • It provides for a comprehensive system of bilateral institutions, • Association Agreement also requires approximation of Ukrainian law with EU acquis.