Commentary by the Attorneys at Law «IMG Partners» on the Ukraine - European Union Association Agreement

On the 19th of December 2011 the fifteenth jubilee Summit Ukraine - EU will be held in Kyiv. The Ukraine - European Union Association Agreement (Association Agreement) will be one of the key issues to be discussed during it.

Ukrainian and foreign mass media provide different interpretation of the Association Agreement content and the decisions which could be made on it. This commentary by the attorneys at law «IMG Partners» provides clear explanations on these matters.

1. On the 22nd of January 2007 the EU External Relations Council approved the mandate of the European Commission to start new enhanced agreement negotiations between Ukraine and the European Union.

Decree of the President of Ukraine dated by of 5th of February 2007 № 76/2007 (amended by the Decrees of the President of Ukraine of 30th of December 2007 № 1172/2007 and from 10th of August 2010 № 804/2010) approved the list of the Ukraine’s delegation for participation in the negotiations on the conclusion of the Association Agreement between Ukraine and the European Union and the mandate of the Ukrainian delegation.

2. Negotiations have taken place in the format of the plenary sessions and four working groups, namely:

on foreign policy and security;
cooperation on justice, freedom and security;
on economic, sectoral issues and issues of human development;
on establishing a free trade area.

3. On the 5th of March 2007 the first round of negotiations on Association Agreement took place. The first round of negotiations on the establishment a free trade area took place on the 18th of February 2008 after the decision was made on Ukraine's accession to the WTO.

4. Twenty one rounds of negotiations in the format of plenary sessions, eighteen rounds in the format of working group on free trade area and a number of negotiations in the format of other working groups, expert consultations, video conferences, bilateral meetings dedicated to solving of specific sensitive issues of the Association Agreement were held during 2007-11.

5. On the 20th of October 2011 the Commissioner for Trade Karl De Gucht and the First Vice - Prime Minister of Ukraine Andriy Klyuev, after solving during their bilateral meeting in Brussels, last unsettled issues on Free Trade Area, have announced about successful conclusion of the negotiations.

6. On the 11th of November 2011 the last 21st round of negotiations on Association Agreement in the format of a plenary session was held. An announcement about successful conclusion of the negotiations was made. The only unresolved issue that should be agreed at the highest political level during the Ukraine – EU Summit - is the definition of political purpose of the document.

The Ukrainian side insists on the recognition in the preamble of the Association Agreement on its desire to become the EU member state in future.

The EU officials have underlined on several occasions that there is no consensus among the EU member states on this issue.

At the same time, Article 49 of the Treaty on European Union contains provisions regarding the possibility of accession for European (geographically) countries that meet the Copenhagen and Madrid criteria for membership. In addition to this, the European Parliament resolution dated by 1 of December 2011 for the first time contained provisions on the Ukraine's application for EU membership.

Thus, the additional reflection of this issue in the Association Agreement has just a complementary nature. The Association Agreement anyway by its content is an instrument of Ukraine's preparations for EU membership.

7. The Association Agreement conclusion, as well as any other trade agreement, has 5 (five) stages:

negotiations;
initialization;
signature;
ratification;
entry into force and WTO notification.

8. The announcement of the conclusion of negotiations on Association Agreement should be made during the Ukraine - EU Summit.

9. According to various estimates the Association Agreement consists from 1 500 to 2 000 pages. From a technical point of view the preparation for the initialling of the text before the Ukraine – EU Summit seems quite impossible.

10. The third stage of the conclusion of the Association Agreement - signature - is a key one for Ukraine, as a subject of International law. According to article 18th of the Vienna Convention on the Law of Treaties, Ukraine, with the signing of Association Agreement, would be obliged to refrain from acts which would defeat the object and purpose of the Agreement. This means that the issue of participation on any other integration projects would be withdrawn from the bilateral agenda of Ukraine’s relations with other countries and international organizations.