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Joseba Fernández de Gaztea |
Professor teaching assistant doctor of Administrative Law and European Union Law, University of Navarra
On the first day of class from Administrative Law I underline that political power is legitimised and materialised by means of a legal speech . This makes it easier for students to connect. On the first day of class of EU law, I point out to the IR students that to understand the European Union politically, one must be fluent in the language of its legal system. In this case, it is a power that is different from that of the state, as it is transferred, limited and exercised through a web of very intense cooperative relations between member states and the EU. This makes it a very particular system.
Precisely because the EU exercises its power through its legal system, its legal acts account for its actions. Certainly the EU's Official Journal will witness the new turning point that - it is said - has just been overcome as a consequence of the end of the pax Americana and the consequent arrival of the new world order of strong countries. With perspective and calm it will be analysed. For the time being, however, we can start with part of the legal trail of what has already happened.
We know that the President of Ukraine, Volodymir Zelenski, has formalised the application initiating procedure for EU membership. In compliance with the provisions of article 49 TEU (Treaty on European Union), the Ukrainian Ambassador to the EU handed over the application in person to the Presidency of the committee .
Right to procedure, but not yet to mainstreaming
This is a unilateral declaration of will, not subject to a specific form and regulated by both the Ukrainian and the Union rules and regulations . The application asserts the right to procedure, but not to incorporation, of article 49 TEU.
The committee met and acknowledged receipt of the application. The Commission, the European Parliament and national parliaments must also have received it. This is not indicated in article 49 TEU, but it is now appropriate for the committee to make a preliminary and summary assessment of the possibilities of Ukraine's accession and, if positive, to order the Commission to start analysing the political, economic, institutional and legal implications.
If this is positive, then committee itself instructs the Commission and committee of Permanent Representatives to begin negotiating the international treaty for Ukraine's accession to the Union. In the negotiations, the adjustments that the country needs to make to its legal system in order to join will be dealt with in chapters (35), taking into account the Copenhagen criteria. candidate .
A process that can take up to 10 years
If the negotiation is successful, after hearing the committee, the committee unanimously and the Parliament by a majority of its members must approve the incorporation. In this case, the international treaty of incorporation is signature and subsequently ratified. All Member States and the new Member State sign the treaty. It is not unusual for this whole process to take about ten years and, for the time being, there is no alternative. To date, the most important legal link in force between Ukraine and the union is the agreement of association signed on 21 March 2014.
We also know that the day before the signature of the application, the president of the European Commission stated that Ukraine has a place in the European Union, and that the parliament passed a resolution with 636 votes in favour supporting its membership (paragraph 37). Legally, the words of the President are a material action, without legal effect, in fulfilment of her function as the Commission's representative (article 3(5) of the Rules of Procedure of procedure).
The parliamentary resolution is an act that does not fall within the catalogue of article 288 TFEU and, at first sight, also without legal effect. It includes several cross-references to various sources of international law and may be invoked in some of the proceedings pending before the International Court of Justice to which the Russian Federation and Ukraine are parties, but it does not per se affect any legal status . It does not appear to create rights or obligations from which it can be inferred that anyone owes anything to anyone.
An uncertain end to being at war
The formalisation of the application incorporation initiates a procedure that will last for years and whose end is uncertain, especially given the fact that Ukraine is at war, which delays its purpose efforts to align with EU law. Barring something exceptional, the invader is taking advantage of the legal guarantee that is procedure. Russia is arguably an interested party in the procedure of Ukraine's EU membership, participating not by making submissions but by tanks.
Interpreting the initiation of the procedure, the response of the Parliament, the Commission and committee at framework of a dialogue, we could say that, on the one hand, Ukraine is vocalising a "defend us" which they understand must be a "defend us" because they have already opted for the Union and which, if it is truly assumed - as can be deduced from the words of the President of the Commission and the fact that it is accepted that Ukraine already fulfils the starting point of budget of article 49 (being a European state) - is in reality also a "defend you".
The legal system also reflects our response. The decisions and regulations that the committee has adopted - this time non-legislative acts typified in article 288 TFEU, legally binding and adopted by virtue of the powers conferred on the union by degree scroll fifth TEU - are measures that are gradually approaching those adopted by a contender defending itself by counterattacking. I am referring to the blocking of airspace, the support of arms shipments with EU funds and the exclusion of some financial institutions from the SWIFT system (Official Journal of the EU of 28 February and 2 March).
Unless better judgement is made in law, this is the political status .