EU/Ukraine: more important technical stuff

I blogged recently about what needed to happen before the Association Agreement and linked Deep and Comprehensive Free Trade Agreement (DCFTA) could begin to work for Ukraine. At the end of that blog, I noted some suggestions that, if it wasn’t possible to sign and ratify the Association Agreement, it might be possible for some elements of the Agreement to enter into force provisionally.

In theory, it is possible for some parts of an Association Agreement to be applied provisionally ahead of ratification by national parliaments. In EU jargon, the parts which can in theory be applied provisionally are the “Community Competence” elements. This could include many of the provisions of the DCFTA. Thus, should member states wish this to happen, some bits of the Association Agreement could enter into force before the Association Agreement as a whole had been ratified by all the national Parliaments.

This does not mean, however, that such provisional application of the Community Competence elements of the Association Agreement will necessarily happen. As with ratification of the Association Agreement itself, several stages are needed:

(i) the Association Agreement must be initialled (see link above).

(ii) The Association Agreement must be signed on behalf of the member states. This requires a unanimous Council decision, ie every member state must agree.

(iii) Finally, the European Parliament would need to ratify the Association Agreement.

What this procedure means is that in order for the “Community Competence” elements of the Association Agreement to be provisionally applied before the Association Agreement as a whole had been ratified by the national parliaments of the member states, all the member states and the European Parliament would need to agree unanimously – stages (ii) and (iii).

I set out in the earlier blog why the ratification of the Association Agreement as a whole seemed unlikely to happen for as long as opposition leaders (eg former Ukrainian Interior Minister Yuri Lutsenko), detained as the result of trials which were widely perceived to be politically motivated and selective, remained in detention and unable to participate in political activity. The procedures set out above explain why partial, provisional application of the Community Competence elements of the Association Agreement is likely to be subject to the same constraints.