Association Agreements with Ukraine,
Georgia and Moldova: Political and
Legal Implications for the EU and ENP
Countries
Professor Adam Lazowski
Westminster Law School
University of Westminster, London
awlazowski@aol.co.uk
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Lecture outline
• Partnership and Co-operation Agreements – an overview,
• European Neighbourhood Policy – from the first policy paper to
Association Agreements,
• Association Agreements – a new framework for relations with Ukraine,
Georgia and Moldova,
• Legal bases for the Association Agreements (Article 8 TEU gone
missing?),
• Key features of the Association Agreements,
• Quo Vadis: European perspective of Ukraine, Georgia and Moldova?
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Partnership and Co-operation
Agreements
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The first agreement was signed in 1989 between the European Economic Community
and the European Atomic Energy Community and the Union of Soviet Socialist
Republics on Trade and Commercial and Economic Co-operation,
Partnership and Co-operation Agreements are a tailor-made family of mixed
agreements concluded in 1990s with countries of former Soviet Union (Republic of
Armenia, the Republic of Azerbaijan, Georgia, the Republic of Kazakhstan, the Kyrgyz
Republic, the Republic of Moldova, the Russian Federation, Ukraine, and the Republic
of Uzbekistan, Tajikistan),
They were signed for 10 years with a possibility of regular renewals,
Less ambitious and comprehensive than Europe Agreements and later Stabilisation
and Association Agreements – neither of PCAs provided for creation of free trade area,
However, they provide (still) a basic legal framework with a number of former Soviet
Union countries, including Russia.
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Partnership and Co-operation
Agreements
• For instance Art. 1 of EU-Ukraine PCA aimed:
 to provide a framework for political dialogue;
 to promote trade, investment and economic relations;
 to support the consolidation of democracy in transition to
a market economy;
 to enhance cultural, economic, social, financial, civil,
scientific and technological cooperation.
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Partnership and Co-operation
Agreements
• The scope of PCA EU-Ukraine extended from
political dialogue (arts. 6-9), trade in goods (arts. 1023), business and investment (arts. 24-48) to
competition (art. 49-51), economic cooperation (art.
52-79) to cultural cooperation (art. 80),
• Cooperation within the PCA framework covers the
Common and Foreign Security Policy and Justice
and Home Affairs.
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Partnership and Co-operation
Agreements
• It is important to know that as per judgment of the Court of Justice in
case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura
and Real Federación Española de Fútbol PCAs can produce direct
effect,
• CoJ held that Article 23 of PCA EU-Russia is capable of producing
direct effect, thus Russian citizens can submit claims directly based on
that provision should they employers discriminated them,
• This applies to both, vertical and horizontal (more likely) cases,
• See different language versions of Article 23 PCA and compare with
equivalents with other PCAs.
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Partnership and Co-operation
Agreements
Article 23 PCA EU-Russia
“Subject to the laws, conditions and procedures applicable in
each Member State, the Community and its Member States
shall ensure that the treatment accorded to Russian
nationals legally employed in the territory of a Member State
shall be free from any discrimination based on nationality, as
regards working conditions, remuneration or dismissal, as
compared to its own nationals.”
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Partnership and Co-operation
Agreements
ARTICLE 24 (PCA EU-UKRAINE) (Article 20 PCA EUGeorgia)
“Subject to the laws, conditions and procedures applicable in
each Member State, the Community and the Member States
shall endeavour to ensure that the treatment accorded to
Ukrainian nationals, legally employed in the territory of a
Member State shall be free from any discrimination based
on nationality, as regards working conditions, remuneration
or dismissal, as compared to its own nationals.”
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Partnership and Co-operation
Agreements
• Over the years the EU (formerly EC) concluded a lot
of sectoral agreements with these countries,
including Euratom agreements on nuclear safety,
• However, with creation of the European
Neighbourhood Policy a discussion started on new
and more ambitious legal framework for EU
relations with its Eastern neighbourhood.
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ENP
• The European Neighbourhood Policy was conceived in 2003 as the first
pro-active external policy of the European Union towards its Eastern
and Mediterranean neighbourhood,
• From the start it was meant to be an overarching policy framework
based on existing international agreements between the EU and its
neighbours with a possibility of future European Neighbourhood
Agreements,
• The methodology employed by the European Union resembled preaccession policy, however the question of future European perspective
of the Eastern neighbours was properly addressed,
• Interestingly enough the first Communication of the European
Commission of 2003 included also Russia (not surprisingly the
message from Moscow was NIET).
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2002-03
“Wider Europe” – thinking “beyond” 2004
enlargement
2004
Commission Strategy Paper “European
Neighbourhood Policy” adopted by European
Council
ENP Country Reports on first 7 partners
2005
Adoption and beginning of implementation of first
7 ENP Action Plans
ENP Country Reports on next 5 countries
2006
Adoption next 3 (soon 5) ENP Action Plans
First Progress Report and Commission proposals
on “Strengthening the ENP”
2007
Implementation … and Communication on a
Strong European Neighbourhood Policy.
2008
Regionalization of the ENP: the Union for the
Mediterranean and the Eastern Partnership
2009
Joint Declaration of the Prague Eastern
Partnership Summit (7 May 2009)
2010-2015
Revolutions in the neighbourhood, new official
policy papers, completion of negotiations of
Association Agreements with Armenia, Ukraine,
Georgia and Moldova.
Towards association agreements
• New generation of agreements was regularly mentioned
in the European Commission ENP policy papers,
• At some point the language used was quite promising
(agreements modeled on the European Economic Area),
• Slowly the term Neighbourhood Agreements disappeared
and negotiations of DCFTAs commenced in 2008,
• The negotiations were rather secretive and for months it
was difficult to figure out.
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Towards association agreements
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At least in case of Ukraine the draft was prepared by the EU,
According to A. Mayhew, the negotiations with Ukraine were conducted
separately for DCFTA and AA (and not always co-ordinated) giving a wrong
impression to the Eastern countries that they were negotiating two different
agreements,
The negotiations were conducted with Armenia, Moldova, Ukraine and
Georgia,
As well know the political climate in these countries was rather volatile, hence
the European Union imposed a lot of political conditionality (see imprisonment
of former Ukrainian PM Yulia Tymoshenko),
Furthermore, 2008 saw an open military conflict between Russia and Georgia
leading to a new stage in the frozen conflict (Abkhazia and South Ossetia),
Moldova has its own territorial problem (Transnistria).
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Legal bases for Association
Agreements
• When AAs were negotiated some argued that the new
neighbourhood provision, inserted to TEU by the Treaty of
Lisbon, could be employed for the very first time,
• This could have – possibly – required the title
“Neighbourhood Agreements” hence it was not favoured
by the Eastern neighbours,
• Hence, the European Union based those new
agreements on Article 217 TFEU (association
agreements) and Article 218 TFEU.
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Legal bases for Association
Agreements
Article 8 TEU
1. The Union shall develop a special relationship with neighbouring countries,
aiming to establish an area of prosperity and good neighbourliness, founded on
the values of the Union and characterised by close and peaceful relations based
on cooperation.
2. For the purposes of paragraph 1, the Union may conclude specific agreements
with the countries concerned. These agreements may contain reciprocal rights
and obligations as well as the possibility of undertaking activities jointly. Their
implementation shall be the subject of periodic consultation.
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Association Agreements
• Association Agreements constitute a new stage in the development of
EU relations with Ukraine, Georgia and Moldova,
• As well known, Armenia pulled out of AA just before it was meant to be
signed,
• AAs provide for a shared commitment to a close and lasting
relationship, based on common values (including respect for
democracy, rule of law, good governance, human rights and
fundamental freedoms),
• Parts of all three AAs apply provisionally, however a decision was
made to postpone provisional application of trade provisions of the
Ukrainian AA (1 January 2016).
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Association Agreements
• Do Association Agreements provide for European perspective?
• Ukraine:
“RECOGNISING that Ukraine as a European country shares a common history
and common values with the Member States of the European Union (EU) and is
committed to promoting those values;
NOTING the importance Ukraine attaches to its European identity;
TAKING INTO ACCOUNT the strong public support in Ukraine for the country's
European choice;
CONFIRMING that the European Union acknowledges the European aspirations
of Ukraine and welcomes its European choice, including its commitment to
building a deep and sustainable democracy and a market economy”
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Association Agreements
• Do Association Agreements provide for European perspective?
• Georgia:
“ACKNOWLEDGING the European aspirations and European choice of Georgia;
RECOGNISING that the common values on which the EU is built –democracy,
respect for human rights and fundamental freedoms, and the rule of law – lie also
at the heart of political association and economic integration as envisaged in this
Agreement;
RECOGNISING that Georgia, an Eastern European country, is committed to
implementing and promoting these values; RECOGNISING that Georgia shares
historical links and common values with the Member States;
TAKING INTO ACCOUNT that this Agreement shall not prejudice and leaves
open the way for future progressive developments in EU-Georgia relations.”
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Association Agreements
• Do Association Agreements provide for European perspective?
• Moldova:
“ACKNOWLEDGING the European aspirations and the European choice of the Republic of
Moldova;
RECOGNISING that the common values on which the EU is built — namely democracy,
respect for human rights and fundamental freedoms, and the rule of law — lie also at the
heart of political association and economic integration as envisaged in this Agreement;
TAKING into account that this Agreement will not prejudice, and leaves open, the way for
future progressive developments in EU-Republic of Moldova relations;
ACKNOWLEDGING that the Republic of Moldova as a European country shares a
common history and common values with the Member States and is committed to
implementing and promoting those values, which for the Republic of Moldova inspire its
European choice.”
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Association Agreements
• Key features of the Association Agreements are:
 very broad scope providing for multidimensional co-operation;
 based on “more for more” model with vast legal approximation related
effort required to move to the next stages;
 dynamic approximation with Association Councils empowered to
change the annexes with long lists of EU acquis to be complied with,
 no direct effect (see Council Decisions on signature: “The Agreement
shall not be construed as conferring rights or imposing obligations
which can be directly invoked before Union or Member State courts or
tribunals”).
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