On the first day of administrative law class, I emphasize that political power is legitimized and materialized through legal discourse. This makes it easier for students to connect. On the first day of EU Law class, I tell IR students that in order to understand the European Union politically, you have to speak the language fluently of your order. In this case, it is a question of a power different from the state, since it is transferred, limited and exercised through a network of very intense cooperative relations between Member States and the EU. This makes its ordering very particular.
Precisely because the EU exercises its power through its legal system, its legal acts account for its actions. Certainly the EU Official Journal will witness the new turning point that –it is said– has just been overcome as a consequence of this end of the people and the consequent arrival of the new world order of strong countries. With perspective and calm it will be analyzed. For now, however, we can start with part of the legal trail of what has already happened.
We know that the President of Ukraine, Volodymyr Zelensky, has formalized the application that initiates the procedure for joining the EU. In compliance with the provisions of the article 49 TEU (Treaty on European Union), Ukraine’s ambassador to the EU delivered the application in person to the Council presidency.
Right to the procedure, but not yet to the incorporation
This is a unilateral declaration of will, not subject to a specific form and regulated by both Ukrainian and Union regulations. The request asserts the right to the procedure, but not to the incorporation, of article 49 TUE.
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The Council met and acknowledged receipt of the request. The Commission, the European Parliament and the national parliaments must have received it too. Article 49 TEU does not indicate this, but it is now appropriate for the Council to make a preliminary and summary assessment of the possibilities of Ukraine’s incorporation and, if this is positive, order the Commission to begin the analysis of the political, economic, institutional and legal implications.
If this is positive, then the Council itself orders the Commission and the Committee of Permanent Representatives to begin the negotiation of the international treaty for the incorporation of Ukraine into the Union. In the negotiation, the adjustments that the candidate country must make in its legal system to join will be dealt with by chapters (35), and taking into account the Copenhagen criteria.
A process that can take 10 years
If the negotiation ends satisfactorily, after hearing the commission, the Council unanimously and the Parliament by a majority of its members must approve the incorporation. In such a case, the international treaty of incorporation is signed and subsequently ratified. All Member States sign the treaty and the new one. It is not unusual for this whole process to take about ten years and, at the moment, there is no alternative. To date, the most important legal link in force between Ukraine and the union is the association agreement signed on March 21, 2014.
We also know that the day before the signing of the request, the president of the European Commission stated that Ukraine has a place in the European Union, and that the parliament approved a resolution with 636 votes in favor that supports its incorporation (paragraph 37) . Legally, the words of the president are a material action, without legal effect, in fulfillment of her function of representing the Commission (article 3(5) of the rules of procedure).
The resolution of the parliament is an act that does not typify the catalog of the article 288 of the TFEU and, at first glance, also without legal effect. It includes several references to different sources of international law and may be invoked in some of the proceedings pending before the International Court of Justice to which the Russian Federation and Ukraine are parties, but it does not affect per se to any legal situation. It does not seem to create any rights or obligations from which it can be deduced that someone owes something to someone.
European Union / Eric Vidal
The value of Parliament’s resolution and the words of the President of the Commission is political and symbolic, as is the support that eight governments of Eastern EU states have expressed.
An uncertain end for being at war
The formalization of the request for incorporation begins a procedure that will last for years and has an uncertain end, especially due to the fact that Ukraine is at war, which delays its purpose of aligning itself with the EU system. Unless something exceptional happens, the invader is taking advantage of the legal guarantee that the procedure itself constitutes. It could be said that Russia is a stakeholder in Ukraine’s EU accession procedure, participating not by presenting arguments, but by tanking.
Interpreting the initiation of the procedure, the response of the Parliament, Commission and Council in the framework of a dialogue, we could say that, on the one hand, Ukraine vocalizes a “defend us” that they understand must be a “defend us” because they have already opted for the Union and that, if it is truly assumed – as can be deduced from the words of the President of the Commission and from the fact that it is accepted that Ukraine already complies with the starting budget of article 49 (being a European State) – it is actually also a “defendeos ”.
The ordering also reflects our response. The decisions and regulations that the council has adopted – this time non-legislative acts typified in article 288 TFEU, legally binding and adopted by virtue of the powers conferred on the union the fifth title of the TUE– are measures that are gradually approaching those adopted by a contender who defends himself by counterattacking. I am referring to the blockade of airspace, the support of arms shipments with EU funds and the exclusion of some financial entities from the SWIFT system (Official Gazette of the EU of February 28 and March 2).
Except for better criteria in Law, this is the political situation.
Joseba K. Fernandez GazteaAssistant Professor of Administrative Law and European Union Law, university of Navarra
This article was originally published on The Conversation. read the original.