Seven Steps for Ukraine's EU Future. How Does Kyiv Implement Brussels' Checklist?

In the summer of 2022, the EU granted Ukraine candidate status. A list of seven requirements related to reforms came together in the package. Ukraine can start accession negotiations only by meeting the seven requirements.

The EU still needs to publish an assessment of how Ukraine is fulfilling them.

We present an independent assessment prepared by a consortium of expert organisations, including "European Pravda."

Ukraine has come even closer to meeting some requirements. However, some reforms qualify as a failure.

Equator for the candidate

This is the third progress assessment since Ukraine obtained EU candidacy. We should admit that the latest changes have become convincing. Ukraine surpassed the psychological barrier and crossed the mark of 50% fulfillment of the European requirements.

The overall score is 5.8 out of 10.

However, Ukraine has to meet each of the EU requirements fully. Any of the seven recommendations have yet to be fully implemented. However, Ukraine has significantly progressed in some of them. They should be fully met pretty soon.

As for the most challenging requirements, it is not always Ukraine's fault they are not met. A good example is the so-called "anti-oligarchic" reform. Ukraine cannot even start its implementation since the Venice Commission has suspended its consideration. Ukraine still needs to learn what exactly needs to be changed in the current law.

Officials do not use the term "conditions" or "requirements," underlining that Ukraine carries out the reforms of its own free will without coercion. That's why Brussels calls it "seven steps." Kyiv names it "seven recommendations."

In fact, fulfilling these criteria is mandatory to advance on membership.

Meanwhile, what will happen when Ukraine fulfills its obligations by 100%? Ukraine, Kyiv, on the other hand, believes that their successful implementation should be a sufficient condition for opening accession negotiations. The EU is not yet ready to make this commitment.

However, only the future will show us the result. We would now suggest evaluating the requirements where Ukraine is successful and where failure is possible - either from the EU side or from the Ukrainian side.

Step 1: Constitutional Court reform

EU Recommendation: to enact and implement legislation on a selection procedure for judges of the Constitutional Court of Ukraine (CC), including a pre-selection process based on the evaluation of their integrity and professional skills, in line with Venice Commission (VC) recommendations.

The first point of "candidate seven" is the worst. The European Commission is aware of this and is not ready to turn a blind eye to Kyiv's actions, which have turned into a serious problem. It can be argued that in December 2022, the authorities of Ukraine – together with the government, parliament and president – made efforts to disrupt the proper implementation of this reform. Its goal was to finally politicise the composition of the Constitutional Court by introducing a professional and valuable selection of candidates for it.

On December 13, 2022, the parliament adopted a draft law on the CC reform, which President Zelenskyy signed on December 20 - the day after the Venice Commission officially declared that the reform did not meet European criteria.

The law is written in such a way that it allows the authorities to ignore the opinion of the Advisory Group of Experts (AGE), which will vet the CC candidates, and appoint as judges of the Constitutional Court even those who might be considered dishonest later. According to the current law, the AGE itself is formed so that independent representatives cannot rule out even the wrong candidates.

The EU called on Kyiv several times to review the adopted law. When faced with ignoring the issue, the Western partners refused to participate in the selection with rigged rules.

This pressure eventually became fruitful. The government recognised the problem and announced amends.

However, the problem still needs to be fixed.

Experts believe that the level of fulfillment of the criterion has decreased - 2 points out of 10. This is the worst result among the "candidate seven".

Step 2: Continuation of Judiciary reform

EU Recommendation: finalise the integrity vetting of the candidates for the High Council of Justice (HJC) members by the Ethics Council and the selection of candidates to establish the High Qualification Commission of Judges of Ukraine (HQCJ).

Unlike the constitutional court, we see some progress. The last evaluation was also positive. The reform has progressed even more since then. The experts agree that the authorities did not make glaring mistakes either.

The main change is that in January, Ukraine finally got the fully operational HCQ, having 15 of the 21 members. Not everything is perfect. For example, the absence of online broadcasts of Ethics Council interviews with candidates does not allow experts to verify the integrity of the new HCQ members. However, this problem was not made up by the authorities: suspending the interviews was the idea of the international members of the Ethics Council at the beginning of the full-scale Russian invasion.

The HCQJ does not progress this much but we don't have a reason to panic. Everything sticks to the plan. Provided the Commission maintains a high pace of work, the winners' names will be announced by late February.

The experts' rating is 7 points out of 10 (previously 6).

Step 3: Anti-corruption

EU Recommendation: to further strengthen the fight against corruption, in particular at a high level, through proactive and efficient investigations and a credible track record of prosecutions and convictions; complete the appointment of a new head of the Specialised Anti-Corruption Prosecutor's Office through certifying the identified winner of the competition and launch and complete the selection process and appointment for a new Director of the National Anti-Corruption Bureau of Ukraine.

Anti-corruption has traditionally been a problem for the Ukrainian authorities. But this time, the trend is positive - although threats remain.

The requirement to select the SAP head has been fulfilled. Ukraine has every reason to inform the EU about the success in investigating top-level corruption: NABU, SAP and HACC maintain the previously set high level of activity (suspicions were announced against several top officials, including MPs and the deputy minister; a large-scale organised criminal group in Odesa was exposed; the "Mezhyhiria" case against the ex-president was sent to the court; as well as the case of attempted bribery of the mayor of Dnipro, etc.)

However, some tasks the government still needs to accomplish to strengthen the effectiveness of anti-corruption bodies.

First, it is time to restore the declaration of top official assets, suspended after the full-scale invasion.

Also, experts are waiting for steps to strengthen the institutional independence of the SAP, and amend the Criminal and Criminal Procedure Codes of Ukraine. This coincides with the EC recommendations of the EC, which provided a list of such recomendations in August-September 2022.

The competition for the new head of NABU, which will surely be the main one in the EU assessment, is ongoing. However, the government began to insist on speeding up the selection of the head of NABU, which is undesirable. It increases the speed of vetting candidates, including by the public, which will negatively affect the quality of such vetting.

The experts' rating is 7 points out of 10 (previously 6).

Step 4: Combating money laundering

EU Recommendation: to ensure that anti-money laundering legislation complies with the standards of the Financial Action Task Force (FATF); to adopt an overarching strategic plan for reforming the entire law enforcement sector as part of Ukraine's security environment.

There is no breakthrough but quite satisfactory progress, although the level of performance is not as high as in the previous two.

Work is ongoing on draft laws - it is about the future law on the principles of sanctions policy and amendments to the Criminal and Criminal Procedure Codes.

There is also one remark of experts: in November, during the second reading of the draft law on preventing and combating money laundering, MPs supported harmful amendments that weaken financial monitoring of public figures contrary to FATF standards and the requirements of EU Directive 2015/849. The law has entered into force, and the lack of attention to this issue is a negative trend.

In the law enforcement sector, an interdepartamental working group at the Prosecutor General's Office developed a draft Overarching strategic plan for law enforcement reform (not yet approved by the president). At the same time, the development of the law enforcement sector takes place in times of war - the Prosecutor General Office and pre-trial investigation agencies are now spending significant resources on investigating war and national security crimes.

The overall evaluation is 6 points out of 10 (previously 5).

Step 5: Anti Oligarch Reform

EU Recommendation: implement the Anti-Oligarch law to limit the excessive influence of oligarchs in economic, political, and public life; this should be done in a legally sound manner, taking into account the forthcoming opinion of the Venice Commission on the relevant legislation.

This, along with constitutional reform, is one of the most problematic issues. If the Ukrainian government generated problems itself with the CC, this reform should be addressed to the European side.

In fact, the fulfillment of this requirement is "in standby mode." The EU requires Ukraine to adjust and implement the "anti-oligarchic law" of 2021 based on the Venice Commission opinion. But there is still no conclusion of the VC, which was supposed to be provided in December 2021.

Although it was amended in a certain way (for example, Rinat Akhmetov gave up his media empire due to the danger of legal sanctions; Petro Poroshenko also formally withdrew from ownership of his media assets), full fulfillment of the criterion is currently impossible.

The assessment of experts is 2 points out of 10 (unchanged).

Step 6: Media legislation

EU Recommendation: to tackle the influence of vested interests by adopting a media law that aligns Ukraine's legislation with the EU audio-visual media services directive and empowers the independent media regulator.

This criterion has become a success story for Ukraine in the current wave of evaluation. On December 13, the Verkhovna Rada passed the law on media, which the President signed on December 29.

Experts of the consortium evaluate the law favourably. The project was significantly revised before passing, taking into account the opinion of the EC and the Council of Europe, as well as the recommendations of national players. By the second reading, the provisions that could have weakened the mechanisms to protect the Ukrainian language and the national cultural and informational space were also amended.

The reservations still exist mostly come from media players who opposed media regulation in general.

However, in order to meet the requirement, Ukraine must amend the law on advertising, which will implement additional provisions of the EU audiovisual directive. The draft law was developed and sent to the EC.

The overall assessment is 9 points out of 10 (previously 6).

Step 7: Alteration of Legislation on national minorities

EU Recommendation: finalise the reform of the legal framework for national minorities currently under preparation as recommended by the Venice Commission, and adopt immediate and effective implementation mechanisms.

Another criterion where we can see Ukraine's success, although not without obstacles.

On December 13, the Verkhovna Rada adopted the law "On National Minorities (Communities) of Ukraine" after long debates, criticism from Ukrainian experts and the position of the Council of Europe.

According to the experts, the law meets the convention's requirements on the protection of minorities, to which Ukraine is a party, but its adoption was not without problems.

First, Ukraine did not request the Venice Commission to provide an opinion on the law (instead, it used the preliminary conclusions of the VC and consulted with other institutions of the Council of Europe).

Second, the law was passed quickly in the first and second readings. Therefore there were no consultations with the representatives of minorities between the readings. It happened before the first reading.

As expected, the law has been criticised by some EU countries, primarily Hungary and Romania, which consistently support the change of other minority laws, primarily on the language of education. Ukraine will have to conduct a dialogue with them to achieve mutual understanding. One of the ideas is the continuation of the transition period of the educational law, the implementation of which fell during the Great War.

For the full implementation of this recommendation, Ukraine needs to develop implementation mechanisms (bylaws) and not just adopt a framework law.

The overall assessment of experts is 8 points out of 10 (previously 5).

Author: Sergiy Sydorenko,
Editor, "European Pravda"

The study was conducted by a coalition led by the New Europe Center, which includes experts from the following organisations:

National Interests Advocacy Network ‘ANTS’

Anticorruption Action Centre ‘ANTAC’

DEJURE Foundation

European Pravda

Centre of Policy and Legal Reform (CPLR)

Transperency International Ukraine

Ukrainian Center for Independent Political Research (UCIPR)

Institute of Mass Information (IMI)

Detector Media