Montesquieu Institute: from science to society

Wees eerlijk bij de campagnevoering voor het referendum

Op 6 april 2016 stemt Nederland in een referendum over het Europese Associatieverdrag met Oekraïne. De campagnegroep GeenPeil wil Nederlanders een beter begrip geven van wat het Verdrag inhoudt en daarmee de 'ondemocratische en ontransparante Europese Unie' ontmaskeren. Volgens Guillaume Van der Loo, onderzoeker op het gebied van Europees beleid en wetgeving, is het oordeel van GeenPeil gebaseerd op onjuiste informatie. De uitspraken die GeenPeil doet over de consequenties van het Associatieverdrag zijn volgens hem feitelijk niet juist. Het Associatieverdrag bestaat uit twee doelstellingen, namelijk het intensiveren van de politieke betrekkingen en vrij handel kunnen drijven met Oekraïne. Volgens Van der Loo gebruikt GeenPeil het referendum om de Europese Unie als geheel te bekritiseren. Dit vindt hij spijtig aangezien het Associatieverdrag met Oekraïne de belangen van de EU en Nederland dient en bovendien een toonbeeld is van democratische waarden.

Dr. Guillaume Van der Loo,  researcher at the Ghent European Law Institute (GELI) and researcher at the Centre for European Policy Studies (CEPS)

In a rather flashy and provocative campaign movie Geenpeil– the civil society group that called for the referendum in the Netherlands on the EU-Ukraine Association Agreement – claims that it wants “to improve in a constructive way the debate on the EU-Ukraine Association Agreement so that citizens will be better informed and heard”. However, although its declared objective is to “inform the Dutch citizens and to fight against an undemocratic and untransparent EU”, Geenpeil makes several very unfounded – and even false – claims about this agreement. It has to be recognized that summarizing the EU-Ukraine Association Agreement is a challenging task as it is an extremely complex and comprehensive legal text. But if Geenpeil is serious about properly informing the Dutch citizen about this agreement, it should do so in a intellectually honest way, based on an objective analysis of the contents of the agreement and the (geo-)political context in which it was negotiated and concluded. In this view, this contribution comments on several – but not all – of Geenpeil’s incorrect statements about the EU-Ukraine Association Agreement.

“The EU-Ukraine Association Agreement enters into force on 1 January 2016

In its campaign video and other communications, Geenpeil claims that the Association Agreement will enter into force on 1 January 2016. This is not entirely the case as the reality is more complex. The agreement was signed in March and June 2014 after the Maidan Revolution. Because the agreement includes provisions that still fall under the competences of the EU Member States, the agreement needs to be ratified at the EU side by both the EU and its 28 Member States (which is called in EU jargon a ‘mixed’ agreement). Because this may require several years, the agreement provides that its parts that do not fall under the competences of the Member States can be “provisionally applied”. The provisional application of a large section of the ‘political’ part of the agreement (e.g. provisions related to general principles, political dialogue and the institutional framework) started already on 1 November 2014. Initially the EU also wanted to provisionally apply the trade section of the agreement (i.e. the “Deep and Comprehensive Free Trade Area” (DCFTA)). However, under pressure from Russia, which threatened to suspend its preferential trade with Ukraine if the DCFTA enters into force, the provisional application of the trade part of the agreement was postponed until 1 January 2016. Thus, the provisional application of the trade part started on 1 January 2016 – and not the entry into force of the entire agreement. Only after all the EU Member States have ratified it, the entire agreement will enter into force. Most EU Member States have already ratified the agreement according to their national procedures. In the Netherlands, both the Dutch Senate (First Chamber) and House of Representatives (Second Chamber) have approved the law that ratifies the Association Agreement in 2015. However, this law is now suspended due to the start of the referendum procedure. Although the result will not be binding on the government, it will have to be considered if turnout is above 30% and a majority votes against the agreement. A no-vote would create a difficult political problem for the Dutch Government, who is campaigning for the agreement while holding the rotating EU Presidency. If the Dutch Government would decide to follow a negative outcome of the referendum, from a strict legal point of view, the provisional application of the Association Agreement can continue indefinitely. However, such a scenario would raise legal questions on the application of agreement in the Netherlands, especially about those parts of the agreement that still fall under the competences of the EU Member States.

The Dutch taxpayer will have to save the Ukrainian banks

Geenpeil also states that once the agreement enters into force on the 1st of January 2016 (which is not the case – see point 1), billions of taxpayers money will immediately flow to Ukraine and the EU will have to save the “Mafioso banks” in Ukraine. Again, this is an oversimplification and misrepresentation of the facts. First, the (provisional) entry into force of the agreement is not directly linked with more financial assistance to Ukraine. Actually, the EU is already providing for many years financial assistance to Ukraine, just as it does to all its neighbouring countries in the post-Soviet area and the southern Mediterranean and many other (developing) countries around the world. For example, on 5 March 2014, the European Commission announced a largesupport package for Ukraine to help stabilise the economic and financial situation of the country. All the measures combined could bring overall support of €11 billion over the next seven years from the EU budget and European financial institutions, including up to €1.4 billion of bilateral grants. This support is in no way made conditional upon the entry into force of the Association Agreement. However, several specific financial measures aim to prepare and facilitate the implementation of the Association Agreement and DCFTA or to help (small) Ukrainian businesses to seize the new trade opportunities provided for by this agreement. Second, the Association Agreement includes provisions on financial cooperation, measures for strengthening Ukraine’s financial and banking system and liberalization of financial services. However, nothing in the agreement obliges the EU or its Member States to save (e.g. bail out) the Ukrainian banks (as claimed by Geenpeil).

The Association Agreement will lead to Ukraine’s EU Membership

Geenpeil also states that the Association Agreement is a good example of the EU’s enlargement drift, hinting that this agreement will lead ultimately to Ukraine’s EU accession. Also this statement is unfounded. Nothing in the agreement obliges the EU to let Ukraine into its club. Although Ukraine strongly insisted on an EU accession perspective in the agreement during the negotiations, the EU carefully avoided explicit EU membership language. Nevertheless, in order to support Ukraine in its ‘European choice’, the agreement includes diplomatic language on Ukraine’s EU membership ambitions. For example, the agreement recognises that Ukraine as “a European country shares a common history and common values with the Member States of the [EU]” and states that the EU “acknowledges the European aspirations of Ukraine and welcomes its European choice”. Thus, the agreement recognises Ukraine’s EU membership ambitions, but does not create any obligations on the part of the EU to open its doors towards Ukraine. This makes the Association Agreement concluded with Ukraine different from, for example, those that the EU has concluded with the Western Balkan countries. These Association Agreements recognise the Western Balkan countries’ “status as a potential candidate for EU membership” and have already guided Croatia to EU accession. On the other hand, the EU-Ukraine AA neither precludes Ukraine’s EU Membership in the future. The agreement even states that it “shall not prejudice and leaves open future developments in EU-Ukraine relations”. However, the upgrading of Ukraine’s status to a (potential) EU candidate country ultimately depends on a unanimous decision of the EU Member States.  For various reasons (e.g. the enlargement fatigue in the EU, the conflict in Eastern Ukraine, the potential impact on EU-Russia relations and the very unstable political and economic situation in the country), there will be no consensus among the EU Member States in the short or middle-long term to grant Ukraine an EU Membership perspective. This situation illustrates a political paradox: whereas Ukraine’s post-Maidan leadership sees the agreement as an instrument towards EU accession, different EU Member States consider the agreement as the best alternative for EU Membership.

Conclusion

Geenpeil also states that “the negotiations of the Association Agreement have led the violent demonstrations on the Maidan square’. Again this is not true. On the contrary, it was de decision of the previous Yanukovych Government not to sign this agreement that has led to the Maidan demonstrations, in which several people gave their lives for democratic reforms and a closer link with the EU.

The key objectives of the Association Agreement are political association and economic integration. The former refers to the agreement’s provisions on fundamental rights and common values (e.g.democracy and rule of law, respect for human rights and fundamental freedoms, good governance and market economy), ambitious cooperation in the Area of Freedom Security and Justice and Common Foreign and Security Policy and the agreement’s institutional framework and political dialogue. The objective of economic integration is realized by the “Deep and Comprehensive Free Trade Area”. This far-reaching trade deal will virtually liberalise all trade in goods between the EU and Ukraine and will significantly liberalise or facilitate trade in all other relevant sectors such as services, competition, energy, public procurement and intellectual property rights. Significantly, Ukraine has committed itself to approximate to a large chunk of EU legislation. If implemented well, these approximation commitments can lead to the modernization of Ukraine’s economy, attract FDI and lead to additional access to the EU Internal Market. In addition, the agreement envisages cooperation in several sectoral areas such as energy, transport and environment.

The implementation of this agreement will be a very demanding exercise and will require a strong and long-term political commitment from Kiev – often by overriding vested interests of certain political and economic elites in the country. Moreover, the conflict in Eastern Ukraine and Ukraine’s dispute with Russia do not create a beneficial environment for the agreement’s implementation. However, if the Association Agreement is applied well – flanked by tailored financial and technical EU support –, the agreement can lead to a more stable, democratic and secure neighbourhood for the EU.

The agreement is already democratically approved by all the EU Governments in the Council, the European Parliament and also, in the Netherlands, by the two Chambers of its Parliament. Geenpeil mainly uses this referendum as an instrument in its populist battle against “the undemocratic and untransparent EU”.  However, with its misleading campaign against this landmark agreement, Geenpeil is not only violating the values it is claiming to defend, but is also jeopardizing an agreement which is in the interests of Ukraine, the Netherlands and the EU as such.


Deze bijdrage verscheen in de Hofvijver van 25 januari 2016.