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| Dionis Cenuşa, Senior Contributor | |
Until the end of 2023, the institutions of the European Union (EU) must make sensitive decisions related to the prospects of the pre-accession dialogue with Ukraine, Moldova, and Georgia. The outcome of these decisions is unknown and depends on the evaluation of the progress made by the European Commission. However, the Brussels exponents openly show their geopolitical sympathies and, respectively, a favorable bias towards the Ukrainian and Moldovan archives. A diametrically opposite situation is witnessed in the case of Georgia, especially in the context of deteriorating relations between the government and civil society, and the media. In a critical review of the reforms in the three countries, the EU will identify various signs of progress. But these might be still insufficient to approve the opening of negotiations (Ukraine and Moldova) or the granting of candidate country status (Georgia) in 2023.
Uncertainties related to the results of the 2024 European Parliament elections and, respectively, to the future composition of the European Commission would favor the idea of starting accession negotiations with Ukraine and Moldova in 2023. Therefore, Georgia will definitively abandon the approach of "package" applied to the Ukraine-Moldova tandem. The interpersonal and political relationships of the current EU leaders with the ruling elites in Ukraine and Moldova allow for a considerable degree of subjectivity in assessing progress. To a large extent, the Russian war against Ukraine and the negative repercussions on Moldova reduce demand from the EU. It is precisely in these geopolitical circumstances that the political leaders of Kyiv and Chisinau are counting on their approach to start negotiations at the end of 2023. As a rule, the EU refers to the meritocratic principle, but the application of this principle in stricto sensu could postpone the timetable for accession negotiations for 2024 or even later.
The EU requirements to deepen the pre-accession dialogue are implemented with a speed and quality that differ from country to country (BNE, February 2023). In the case of Ukraine, certain problems are noted in relation to different aspects of the 7 EU requirements. These concern the reform of the Constitutional Court, the fight against corruption, the legislation on national minorities, etc. Moldova's progress is uneven and politicized in certain respects. The Venice Commission and the reformist opposition have pointed to issues related to judicial reform and the expansion of the powers of secret services with risks to human rights. In any case, the EU has not publicly expressed concern about any deviation from the implementation of the 9 requirements imposed on Moldova. In Georgia, the authorities report that they have made great progress in meeting the 12 conditions, blaming opposition forces, civil society, and critical media for failing to overcome "political polarisation".
The EU is due to assess progress in the spring-summer period, publishing reports on all countries included in the “enlargement package” in October 2023 (10 countries in total). The Commission's conclusions can subsequently be used by the other EU institutions to recommend the opening of accession negotiations for Ukraine and Moldova and/or the granting of the candidacy to Georgia.
Ukraine: between protracted war and unfinished reforms
In the context of Russian aggression, advancing the pre-accession dialogue with the EU is a strategic priority to keep Ukraine's socio-political cohesion in good shape. As with solidarity around the defense against revengeful Russia, Ukraine needs support in the field of European integration. Fatigue with the Ukrainian topic among the European public is a legitimate fear. As the war has entered its second year, its costs mobilize anti-war protests in the West and pro-peace diplomatic initiatives in the Global South, which serve Russian interests. In this context, the fulfillment of the EU conditions and the eventual start of accession negotiations will become a considerable political incentive to combine the continuation of the reforms with the military counter-offensive planned for the coming months.
In early February, Ukrainian civil society assessed the progress in the implementation of the EU conditions with 5.8 out of 10 points (European Pravda, February 2023). The most problematic areas of reform found are related to the reform of the Constitutional Court, the legislation against money laundering, and the law of deoligarchization. Although the legislation on national minorities is considered a goal achieved, the lack of concrete actions to address the concerns of the Hungarian and Romanian parties may resurface as an impediment at a later stage. Other evaluations show that none of the 7 conditions is fully implemented. Among the most significant shortcomings are: 1) prevention of blockages and politicization in the appointment of constitutional judges; 2) finalization of the appointment of the members of the High Commission for the Qualification of Judges; 3) the restoration of the electronic procedure for the evaluation of income statements suspended in early 2022; 4) the approval of the other three laws out of a total of 6 related to the fight against money laundering; and 5) review of the deoligarchization law in line with the recommendations of the Venice Commission (EPC, March 2023).
The Ukrainian government is confident that Ukraine will fulfill the 7 conditions by June and will implement the remaining aspects by then. There is close collaboration with the Venice Commission and the European institutions to find solutions that allow the EU conditions to be met. An example would be the idea that the vote of the representatives of the external partners, within the selection body for constitutional judges (the Advisory Group of Experts), should prevail over the vote of the Ukrainian members (Euroactiv, March 2023).
Moldova: the crisis around justice reform and the new risks for human rights
One of the government's central goals is the opening of EU accession negotiations, as early as 2023, with subsequent EU membership until 2030. The lack of a realistic approach on the part of the Moldovan government makes reforms hasty, even committing deviations from constitutional principles (separation of powers in the State, etc.). The government had intended to complete the implementation of the EU conditions by the end of March but failed to achieve that. The Moldovan authorities subsequently moved the deadline to the end of April, which also represents an overly optimistic political calendar and not anchored in the existing national technical-legal procedures. To overcome the legal obstacles, the executive and the parliamentary majority, headed by the Action and Solidarity Party (PAS), are using the state of emergency in matters of national security. Since February 2022, the government has already extended the state of emergency seven times, and exceptional powers, contrary to the legal limits, have also been extended, including over judicial reforms.
The biggest obstacle to complying with the EU requirements is the situation in the justice sector, namely the filling of all vacancies in the Superior Council of the Magistracy (SCM). Without this body, the third power of the state, the judiciary, cannot govern itself and is therefore not functional. The government accuses the judges of preventing the appointment of the new SCM. In the 2019-2021 period, the General Assembly of Judges failed to elect the new SCM. Experts in the sector indicate that the reasons for this delay are related to political pressure or restrictions due to the pandemic, but also to the lack of a quorum. The old composition of the SCM dates from the period of the oligarchic government (years 2015-2019). A functional and legal SCM requires 12 members, including 6 judges and 6 non-judges. Based on the evaluations of the Pre-Vetting Commission, financially supported including by European partners, 5 judges (out of 28) and 3 non-judges (out of 12) were selected. In order to avoid lost cases at the ECtHR for ignoring the appeals filed by the judges who failed the evaluation of the Pre-Vetting Commission, the General Assembly of Judges proposed postponing the appointment of judges in the new SCM until the end of April. Consequently, the new SCM currently consists of only three non-judges from civil society, voted for by the ruling party, and one judge from the previous composition, with an interim term. The EU has reiterated very clearly that cleaning up the judiciary is imperative (RadioMoldova, April 2023), and the SCM represents a first step in this direction. The deadlocks surrounding the SCM will cast doubt on the legality of decisions made in an incomplete composition dominated by non-judges. For now, justice sector reform is in an acute crisis. Political pressure on judges to deconstruct the system sets risky precedents for the sustainability of judicial reform.
In addition to shortcomings in the implementation of EU justice-related requirements, further human rights failures may arise from the government's legislative initiative to expand the powers of the Intelligence and Security Service (SIS). The parliamentary majority voted in first reading a set of laws that would allow secret services to intercept and access virtually any personal data without the need for judicial approval. The Venice Commission noted that the proposed legislation is flawed and creates multiple risks to human rights (privacy, personal data, freedom of expression, etc.). Although President Maia Sandu calls for an urgent vote on legislation to prevent Russia's subversive actions in Moldova, the parliamentary majority has promised to launch public consultations. Ignoring the Venice Commission could turn the SIS into “a state within a state”, with serious consequences for the protection of fundamental freedoms, leading to non-compliance with the EU conditions.
Georgia: problematic reforms and the government's image crisis
Georgia's big problem lies in the crisis of image and confidence in the ruling party (Georgian Dream). The non-engagement with the civil society in the reform processes and the attacks against it - at the rhetorical and political level (the foreign agents' bill was revoked after the protests) - represent the government's greatest failure. Of the 12 EU requirements, the cooperation of civil authorities with civil society is practically non-existent in Georgia. Likewise, "political polarization" is insurmountable as long as state institutions are politicized and do not guarantee equal conditions for all political forces. The "polarization" is a symptom and by no means the root of the problem.
Brussels underlined that the EU requirements can only be implemented with the participation of the Georgian government and parliament. However, this does not exclude the importance of other actors, such as the opposition or civil society, without which a balance of interests cannot be ensured in the transposition of the reforms requested by the European institutions. The EU stands ready to provide the necessary assistance for Georgia to meet the conditions. The deadline set by Georgian Dream is the end of June (Agenda.ge, March 2023), and the opposition threatens anti-government protests if the EU conditions are not met in April.
Reforms in the judiciary or the deoligarchization law, as in the case of Ukraine and Moldova, require the implementation of the recommendations of the Venice Commission. However, in the absence of this prerequisite, the measures taken will be considered as non-compliant with European requirements. Achieving the reforms within three months, when the European Commission prepares the preliminary assessment of progress, is an ambitious goal. Even if the government succeeds in this, it also needs a public image detox. In this sense, the ruling party must abandon the derogatory discourse toward European politicians and institutions. Because of the eurosceptic rhetoric used by government exponents, Georgia is losing friends in the EU, instead of multiplying them, following the example of Ukraine and Moldova. If the deadlocks are not broken, the EU could keep Georgia in the category of potential candidates until 2025, pending the results of the autumn 2024 legislative elections.
In lieu of conclusions…
The opening of the Ukrainian side to a critical examination of the problematic aspects of the reforms, including the participation of the EU and civil society, is unprecedented in Moldova or Georgia. The EU refrains from any criticism related to the flawed aspects in Moldova, although the Venice Commission and representatives of the opposition in favor of the reform raise explicit and legitimate objections. The EU may not consult the critical and impartial voices of civil society in Moldova, which affects the objective assessment of the government's progress. And in Georgia, the authorities are ignoring the concerns of both the EU and civil society.
The course of the EU's pre-accession dialogue with Ukraine, Moldova, and Georgia is not yet predetermined, but the quality of the reforms and the degree of compliance with the requirements will influence the political decisions of Brussels. Although fighting in parallel with Russian aggression, Ukraine is working hard to meet the conditions, and external partners are closely monitoring the situation and showing urgency. The Ukrainian model of implementation of EU requirements should be applied in Moldova and Georgia to inject impartiality and include professionalism, through the mandatory inclusion of the Venice Commission in the reform process.
Areas of research: European Neighborhood Policy, EU-Moldova relationship, EU's foreign policy and Russia, migration and energy security.
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