Europe's critical test: an emergency landing for Ukraine and the moment for common defence

The European Union is busy preparing for an uncertain future. It faces grave external threats, some from the unexpected quarter of its longstanding American ally. The EU struggles to be united in its response to the new world of tough geopolitical competition. Eurosceptic and nationalist forces at home continue to obstruct the EU’s internal reform. And the external challenges, principally Russia’s invasion of Ukraine, will not evaporate by the charm of wishful thinking or the lure of immobilism.

If a sovereign Ukraine is to be salvaged, it must be admitted to EU membership – and quickly. Ukraine’s accession must be unconventional if the logjam around enlargement is to be broken. This paper examines how that can be done and makes proposals.

The Copenhagen criteria

The European Union was designed to change shape. In 1951, the six founder countries of the European Coal and Steel Community agreed that “any European state may apply to accede to this [Paris] Treaty” (Article 98). The only procedure laid down was that all member states, as well as the applicant state, would have to ratify the accession treaty. Jean Monnet hoped that Great Britain would one day shed its initial reluctance and choose to join the European cause. Which it did.

Today’s European Union retains both the open political door to any European state and the statutory insistence on unanimity. The motivation behind each of the seven successful rounds of enlargement has varied over time and place, but the basic assumption is that enlargement serves to project the values of the Union and to advance security and prosperity across the continent. However, ‘enlargement’ is deceptively simple. In fact, it took a full 20 years before the necessary consensus could be reached to admit the British into the club.

An incoming state, especially a large one, alters the balance of power between the existing membership; it installs new frontiers and transforms the Union’s international profile; it stimulates internal competition and swells the EU budget; it may revive historic and ethnic tensions; yet it poses challenges to the internal workings of the Brussels institutions and raises some awkward questions about constitutional reform. Enlargement, clearly, is not to be undertaken lightly. The Union’s decisions about its future size and shape are inevitably affected by its own ‘absorption capacity’.

By the time of the fall of the Berlin Wall, the Union had doubled its membership from the original six. The prospect of a new round of accession applications from the formerly communist countries of central and eastern Europe caused EU leaders to tighten the requirements for membership. First introduced in 1993, the Copenhagen criteria were ostensibly intended to ease the path of candidates. Yet they have been a double-edged sword, used by current member states to repel unwelcome boarders or delay the admittance of candidates deemed unready.

The criteria insist on the stability of national institutions guaranteeing democracy, the rule of law and human rights, including the respect for and protection of minorities. Of the candidate, they demand a functioning market economy and the ability to cope with competitive pressures and market forces within the EU. They further require incoming states to take on all the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the ‘acquis communautaire’). They expect loyal adherence to the aims of European political, economic and monetary union.

These criteria are surely challenging for candidates. They also stand to embarrass any member state that may have slipped backwards from commitments made when it first joined up. In particular, varied interpretation of the ‘rule of law’ has led to some widely contrasting definitions. Whereas candidate countries are screened systematically by the Commission for their progress towards meeting the conditions of membership, existing members manage to evade such scrutiny.

As the EU faced a queue of applicants, there was much dissembling under the cover of the Copenhagen criteria. Bulgaria and Romania were let in under licence in 2007, subject to a special verification mechanism that lasted until 2023. Slovenia and Croatia have an unsettled border dispute. The EU acquis still does not apply in Northern Cyprus. Turkey, notably, having been granted candidate status in 1999 is hung out to dry: nobody seriously believes that either the Greek parliament in Athens or the Greek Cypriot parliament in Nicosia will readily ratify a Turkish EU accession treaty. Yet both Brussels and Ankara continue the polite fiction.

The authors of the treaties are wise enough not to have inscribed the Copenhagen criteria into the primary law of the Union. Combining high political ambition with low political cunning, the criteria are referred to only obliquely in Article 2(7)9 of the Treaty on European Union (2007), which contains the current iteration of the enlargement process:

“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. […] The conditions of eligibility agreed upon by the European Council shall be taken into account”.

Unanimity in the Council is required (plus the consent of the European Parliament) for the opening of each country’s application. The final accession treaty must still be ratified by all member states according to their own constitutional requirements.

Under this regime, the Union succeeded in expanding its membership to 28 states with the addition of Croatia in 2013. Notwithstanding the safeguards already built into the enlargement process, when the prospect grew of the EU’s expansion to the Western Balkans, further measures were thought to be necessary. Not the least among those who insisted on tighter rules was that good European, President Emmanuel Macron, who faced a difficult re-election in France against far-right nationalist forces.

In March 2020, the European Council revised the enlargement process. The reform had two rather contradictory goals: not only to “reinvigorate the accession process” but also to subject it “to stronger political steering”. For the EU to take a grip on its troubled and unstable Balkan neighbourhood, renewed emphasis was placed on a systematic, objective, “merit-based approach” in which respect for the “fundamentals” — human rights and the rule of law — has pride of place. The Council now has direct involvement in setting benchmarks for the candidates and in monitoring progress, especially in the ‘fundamentals’ and on alignment of foreign and security policy. There is plenty of scope for any member state to obstruct all progress or procrastinate for any number of reasons, some of which may be bilateral trivia or totally unrelated to the EU’s overall enlargement strategy.

Fast-tracking Ukraine

Which brings us to Ukraine, a country that first applied for EU membership immediately after the full-scale Russian invasion in February 2022. All things being equal, Kyiv can be said to have made good advances towards meeting the accession criteria, not least thanks to the Association Agreement that it had struck with the EU in 2014. It is, however, unrealistic to think that Ukraine can complete the conventional accession process – if at all – in its current wartime state. In any case, the hope of accession on its current slow trajectory will not contribute meaningfully to addressing Ukraine’s acute need to be immediately grounded in the EU security nexus.

And all things are not equal, of course, because Hungary, under the influence of the Kremlin, is blocking the progress of the Ukrainian dossier. Although Ukraine’s technical preparations for the EU acquis continue, Viktor Orbán’s government rejects the Commission’s assessment of the situation and refuses to let the formal political phase of the accession negotiations begin. Moldova’s accession progress, caught in the slipstream, is also impaired.

It is obvious that EU membership must form an integral and robust part of any ceasefire arrangement or inherently unstable ‘peace deal’ imposed by Russia and the US. While President Trump can block Ukraine’s accession to NATO, neither he nor President Putin should be allowed any negative role in impeding Ukraine’s path towards a European liberal democratic future. Without EU membership, Ukraine’s integrity as a sovereign state under international law cannot be assured. Speed is of the essence: one should assume that Putin plans further depredations against Ukraine in the near future.

Like it or not, the EU is having to cope with an emergency landing for Ukraine, all the while avoiding a disastrous crash. Plodding on with the conventional merit-based approach will not cut it. Radical measures are required. Three steps should now be taken to overturn existing secondary rules while staying faithful to EU treaty objectives.

First, the European Council must upgrade and modernise the Copenhagen criteria which were written in a more benign age over thirty years ago. Today, enlargement has become more overtly an instrument of EU foreign policy, security and defence. This shift needs to be codified in a solemn decision of the European Council to declare the immediate membership of Ukraine to be a strategic imperative for the sake of protecting the Union’s own values, fundamental interests, security, independence and integrity (Article 21(2) TEU). A new condition of eligibility to that effect should be added to the Copenhagen criteria to ensure that candidate states are capable of and willing to reinforce the security, defence and independence of the Union.

Second, the European Council and Commission, backed up by a large majority in the European Parliament, should table a revision to the 2020 enlargement procedures so that each chapter can be opened and closed on the initiative of the Commission alone unless the Council acts by Reverse Qualified Majority Vote to block the action. Such an expedient reform would conform not only to Article 49, which prescribes unanimity only at the beginning and end of the accession negotiation, but also to Article 17(1) TEU that gives to the Commission and not to the Council the power to ensure the application of the treaties.

Third, as EU Commissioner for Enlargement Marta Kos has hinted, the Ukrainian accession treaty should be drafted to establish the incomer as a member state on probation. Reform programmes in various sectors that would normally be prescribed before formal accession should, in Ukraine’s case, be repackaged as part of agreed post-accession transition arrangements. This would increase the leverage of the EU over Ukraine’s administration, including its military. The accession treaty should be rendered operational on a provisional basis until such time as final ratification is complete — a process that could in any case be expected to last two or three years.

While still a probationary member state, Kyiv’s government would have a vote in the Council (but not a veto) in all those areas as and when the relevant chapters are satisfactorily closed in accordance with the conventional procedures. These sectors should include, as a priority, the provisions for permanent structured cooperation in defence (PESCO) (Article 42(6) TEU). Ukraine could lay claim to a place inside any pioneer group of integrationist member states acting under the enhanced cooperation provisions of the treaty (Article 20 TEU). Only after the completion of ratification would Ukraine have full powers with a member of the Commission, a judge at the European Court of Justice and directly elected MEPs. A target date of July 2029 to coincide with the elections to the European Parliament and the start of the next institutional cycle would make perfect sense.

Naturally, there will be many objections to this emergency procedure, not least from Orbán whose bluff must be called decisively while he faces the Hungarian general election in April. Doubtless, he and others will launch some ultra vires litigation at the Court of Justice. The Council legal service, whose habitual raison d’être is to defend the status quo, must be called into line by the politicians and invited to serve the EU’s new geopolitical strategy as articulated in the revised Copenhagen criteria.

Diplomats representing other candidate states will protest that they are being unfairly excluded from Ukraine’s privileged treatment. In fact, however, the more flexible procedures invented for Ukraine’s emergency landing could well be adapted to speed membership for Moldova and the leading Balkan candidates. Here, recent statements by Albanian Prime Minister Edi Rama that he would be prepared to accept second-class status on a provisional basis are encouragingly realistic. Where Ukraine leads, others will follow.

Towards common defence

There remains the question of how the EU should organise its own defence. It is clear that the constitutionally ordained route — that is, a unanimous decision of the whole European Council according to Article 42(2) TEU — is blocked. Instead, Andrius Kibilius, the EU Commissioner for Defence and Space, seeks to bypass political obstacles by establishing a European Security Council made up only of those governments of EU member states committed to developing military integration. He envisages a Security Council composed of a permanent core of the ‘E5+’ states (Germany, France, Italy, Spain and Poland), along with the Presidents of the Commission and European Council, plus a rotating cast of three others. The UK would be invited to join meetings from time to time to represent the advances made by the current ‘Coalition of the Willing’ assembled to support Ukraine.

Kubilius, who has given thought to the matter, would give the European Security Council important responsibilities that include crisis management in case of a military aggression against any member state, the coordination of policies to integrate Europe’s conventional armed forces and the job of overcoming the fragmentation of Europe’s defence industries. It would also work to assimilate Ukraine’s military within a European Defence Union. Kubilius suggests the need to build a European standing army of at least 100,000 troops to fill the vacuum created by departing US forces.

To overcome national vetoes in the field of foreign policy, security and defence, Kubilius recommends the drafting of a new intergovernmental treaty, engaging the willing and excluding the rest. He suggests the model of the Schengen treaty, which was always intended to be wrapped up inside the EU treaties when circumstances permitted. Such a treaty would confer decision-making powers on the European Security Council: it would not just be an advisory body.

Whenever new institutions and structures are proposed to deal with defence, federalists, smitten by nostalgia, hark back to the European Defence Community Treaty of 1952 (although few seem to have read it). In truth, the system proposed in the Pleven Plan for the command and control of the federal defence force contained many confederal caveats. Critical questions of governance and parliamentary accountability were left unresolved. Monnet saw it was not opportune at that stage to create a military equivalent of the supranational High Authority to manage the integration of the coal and steel industries. In practice, the European Defence Community would not have avoided the return of the national veto. In any event, the first attempt to create a European army was ended by a vote of France’s National Assembly in 1954. Can we now avoid another botched attempt? We should certainly try.

As Sauli Niinistö has reported comprehensively, the EU is at present woefully ill-prepared to give effect to the “mutual assistance” provision of Article 42(7) TEU. This exposes a deep flaw in Europe’s readiness to combat future Russian aggression or to care for its civilian population in such a crisis. Jean-Guy Giraud, for his part, proposes that the signatories of a new European defence treaty should set as their explicit goal the progressive framing of a common defence policy leading to common defence, as foreseen in Article 42(2) TEU. They would commit to taking strategic decisions in common and to realising joint military action.

There would seem to be a strong case for creating a European Security Council as a supplement to, not a substitute for, the EU institutions. The more exclusive body could at the very least take on responsibility for leading the effort to make the EU’s national armed forces fully interoperational, for identifying and filling capability gaps, for driving common arms procurement, and for securing supply lines. The Security Council would in effect be transplanting the strategic competences once vested in the North Atlantic Council and related NATO structures into the EU’s orbit. It would set the strategic posture of Europe vis-à-vis the US, China and Russia. It would be the place where the future of European nuclear deterrence could be discussed.

We do not know if or when NATO will cease to be functional, but it already looks irretrievably damaged. It falls to the EU to prepare a contingency plan. For a start, the Security Council should resuscitate the Berlin Plus arrangements of 2003 that unplug EU security and defence missions from NATO command while retaining use of its capabilities. A European Union military command and HQ will be needed to take over or replicate the role of NATO’s Deputy SACEUR (always a European). The Security Council would also need oversight of the pooling of military and security intelligence.

The first signatories to the new defence treaty could consist of all EU member states except the neutrals (Austria, Cyprus, Ireland and Malta) and the obviously unreliable and non-compliant countries (at present, Hungary, Slovakia and Czechia). On the other hand, the United Kingdom, Iceland, Norway and Canada — all non-EU members of NATO — should be invited to become founder members. While being open to all European states, subject to strict conditions of political will and military capability, the Security Council should be enabled to expel any errant member.

If the Schengen model is followed, the new defence treaty should cleave as closely as possible to the objectives of the European Union while deploying more flexible and democratic decision-making procedures than the EU treaties allow. The Security Council would commit to using the existing institutions and bodies (such as the European Defence Agency) to the greatest feasible extent, including the EU’s enhanced cooperation provisions where relevant. Its members would coordinate their approach to the design and implementation of the numerous EU programmes in the field of security and defence, particularly those projects emanating from PESCO. They would work to overcome the obstacle of Article 346 TFEU, which serves to prevent the development of a single market for the military industry. The heads of state or government of the signatory countries should elect one of their number as President of the Security Council; he or she should report to the European Parliament and answer parliamentary questions. A clause in the new treaty should state the objective of its future incorporation within the EU proper.

Fresh impetus

In this paper we have discussed, firstly, how the present critical international situation demands new strategic decisions from the European Council about the size, shape and character of the future Union, specifically but not uniquely for the sake of Ukraine. This should take the form of a new Copenhagen criterion. We have argued, secondly, for a revision of the current decision-making practices of the formal accession process, allowing QMV to replace the national veto during the interim stages. We have suggested, thirdly, how a new category of member state on probation can ease enlargement without sacrificing quality control of the process or endangering the integrity of the acquis. Lastly, we advocate the drafting of a new intergovernmental treaty on European defence to guide the actions of a European Security Council made up of key member states.

Changing the methodology of enlargement will not answer all the EU’s current constitutional problems. But it may open minds, hitherto closed since the Treaty of Lisbon, to the possibility of making wider reforms in a federal direction, some of which have been well trailed. It seems to be dawning on formerly eurosceptic member states like Denmark and political parties like the conservative European People’s Party, that an addiction to confederal methods and the national veto are no longer a valid basis for the organisation of modern Europe. Nobody wants to create new institutions for their own sake. But the growth of internal nationalist opposition to the widening and deepening of the Union, with the connivance of Trump and to the glee of Putin, leaves the mainstream majority with no alternative but to step outside the strict confines of the Treaty of Lisbon. The aim being to prevent disintegration.

Drawing heavily on the history of the United States, Monnet and the founding fathers were not deluded federalists. Today, European federalism seems to be moving back in vogue. Mario Draghi, that champion of integration, continually talks up the virtues of “pragmatic federalism”. President Volodymyr Zelensky told his Davos audience of his frustration that the EU remains “a beautiful but fragmented kaleidoscope of middle powers”. In private and now in public, Zelensky castigates the Union he yearns to join for a lack of action. Imagine his impact as a full member of the European Council. Ukraine will surely be a pioneer in driving the next phase of Europe’s integration in security and defence.

One may recall that the first enlargement of the Community in 1973 was not an unalloyed success. Norway fell at the first hurdle, having failed to ratify its own accession treaty. Denmark began a long career as a eurosceptic member state, resisting reform, opting out of the euro and defence, as well as delaying the entry into force of the Treaty of Maastricht. Ireland did comparable damage to both the Treaties of Nice and Lisbon; it then exposed the EU to large-scale corruption. The less said here about British EU membership, the better.

Nevertheless, the first enlargement jolted the Community out of a lengthy period of political stagnation, significantly enhancing its international profile and paving the way for market reforms. Other enlargements have had an equally important impact on the way the Union has operated and the direction it chose to travel. Once the current logjam on enlargement is broken, Iceland and Norway may well revive their previously thwarted membership bids. Greenland, which left in 1985, might even be wise to come back. The UK, which itself seceded from the EU in 2020, is a vocal supporter of Ukraine’s EU membership. Irony has no bounds.

Fast-tracking Ukrainian membership against the odds would be proof positive that the European Union is learning to defend itself and can also live in the 21st century – and beyond – with purpose and confidence.

The views expressed in this #CriticalThinking article reflect those of the author(s) and not of Friends of Europe.