By Maryna Rabinovych and Oleksandra Egert
On 23 June 2022, the European Union granted Ukraine and Moldova the coveted status of EU Candidate countries. For both countries, the acquisition of an EU Candidate status amid Russia’s ongoing war against Ukraine is of high geopolitical but also symbolic importance. Nevertheless, Ukraine’s and Moldova’s path to EU membership is likely to be thorny, as they have much “homework” to do.
Political conditions to membership
This concerns, in the first place, fulfilling an array of political conditions, immediately attached to the decision about the Candidate status. Formulated in the Commission’s Opinions on Ukraine’s and Moldova’s membership applications, these conditions predominantly concern the rule of law domain. Both countries are required to continue reforms concerning the judiciary, anticorruption and fighting vested interests and organized crime. For Ukraine, additional conditions concern harmonizing its legislation with EU audiovisual legislation and improving the legislation on national minorities – which may be tricky, given Russia’s narratives about Russian-speakers’ discrimination in Ukraine that underly its aggression. The Commission’s Opinion on Moldova puts an extra emphasis on the domains of public administration reform, the protection of vulnerable groups, as well as gender equality and fighting violence against women.
Not least, moving towards the EU membership will require Ukraine and Moldova to proceed with the implementation of their ambitious Association Agreements (AAs) with the EU, signed in 2014. The AAs contain the parties’ commitments related to political dialogue, profound liberalization of trade with the EU and cooperation in various sectors, ranging from education to transport. Moving forward with the implementation of these commitments requires nuanced understanding of factors that have been causing uneven partner countries’ compliance rates across sectors.
Transport and infrastructure: a case of non-compliance
Our article in the Journal of Common Market Studies offers a nuanced insight into the reasons for Ukraine’s non-compliance with its AA obligations for the single case of transport and infrastructure. The main reason why we chose this case are Ukraine’s chronically low compliance rates in this sector. Over the period from 2015 to 2021, Ukraine’s official aggregate compliance rate was only 44 percent. Even though by mid-2022 this figure grew by 3 percent, and the EU liberalized road transport movement with Ukraine amid the war and export challenges, this domain remains highly problematic by comparison with others, such as public procurement or sanitary and phytosanitary standards.
To explore the reasons why Ukraine lags behind with its transport and infrastructure commitments, the article uses an integrated approach that brings together the enforcement and management compliance schools. The enforcement school understands non-compliance as a willful deliberate decision of a state, based on a cost-benefit analysis. It therefore stresses external incentives and sanctions for non-compliance as key mechanisms the EU can use to externalize its rules. In contrast, the management school argues that non-compliance can be unintentional. It can be caused, for instance, by ambiguous treaty formulations or insufficient institutional, administrative and technical capacity. The management school also suggests considering the complexity of contemporary international agreements and the time span a third country may require to change its laws and practices.
A complex array of factors
Document analysis and interviews with Ukrainian officials, civil society and business actors, and the representatives of the EU Delegation in Kyiv helped us illustrate the complexity of factors that lie behind Ukraine’s low scores in the selected sector. Attributable to the enforcement school, it is the lack of the EU’s formalized pressure on Ukrainian stakeholders that results in delayed laws’ adoption and slow change of practices. Insufficient external pressure aggravates the central compliance issue in the sector, namely the impact of vested interests. Ukraine’s commitments under the Association Agreement strongly influence big businesses and require considerable investment. Instead of making such investment, businesses were reported to oppose the implementation of AA commitments by Ukraine, using their channels of influence at the ministerial and the parliamentary level. Deficiencies in authorities’ coordination, insufficient financial capacity, and chronic shortages of staff at the agencies responsible for European integration create additional obstacles to compliance.
The analysis demonstrated that a third country’s non-compliance with its obligations under an AA results from “interrelated and mutually reinforcing factors that shall in no case be viewed in isolation from one another”. For instance, institutional deficiencies enable domestic interest groups to oppose compliance and, vice versa, inter-institutional cleavages may reinforce capacity challenges. Moreover, we learnt that understanding compliance challenges in the AAs’ implementation context requires an in-depth qualitative approach. “The devil is in the detail”, and the loopholes for non-compliance may deal with small, procedural issues, which cannot be revealed without in-depth interviews. Quantitative approaches may be applied to rate the impact various challenges have on compliance.
Insights offered by this study can be of use both for the EU, and for Ukrainian and Moldovan officials who will now work more actively on implementing the AAs as a step towards membership. Understanding the factors behind non-compliance will enable them to address at least some obstacles to smoother AA implementation, for instance, improving inter-institutional coordination and addressing businesses’ concerns.
Maryna Rabinovych, Post-Doctoral Researcher at the Department of Political Science and Management, University of Agder, Norway
Oleksandra Egert, Agency for Legislative Initiatives, Kyiv, Ukraine