June 1, 2017, by Rossella Pulvirenti
The EU Visa Regime for Ukraine Will End, but the EU’s Leverage on Ukraine’s Fight Against Corruption Must Continue
Post by Romana Lemishka
Romana Lemishka is a PhD candidate at the University of Nottingham School of Law. Her thesis focuses on the EU’s European Neighbourhood Policy and its effects on the protection and promotion of human rights, democracy and the rule of law in Ukraine.
On 11 May 2017 the EU Council adopted a Regulation on a visa-free regime for Ukrainian citizens. The adopted Regulation formally amends Regulation 539/2001, moving Ukraine from Annex I (countries whose nationals need a visa to enter the Schengen area) to Annex II (visa-free countries). On 17 May 2017 the Council and the European Parliament signed the adopted Regulation and on 22 May 2017 it was published in the EU Official Journal. This means that the visa-free regime will officially enter into force for Ukraine on 11 June 2017.
The visa-free regime will grant Ukrainian citizens who hold biometric passports the right to enter the territory of 30 Schengen countries (all EU countries, except for the United Kingdom and Ireland, plus four non-EU states – Norway, Iceland, Switzerland and Liechtenstein) without visa. The visa-free regime will not provide the right to work in the Schengen area and will apply only to short-term visits (up to 90 days in 180-days period).
Background: Ukraine’s path to a visa-free regime with the EU
Visa liberalisation dialogue between the EU and Ukraine was launched in October 2008. In November 2010 the EU presented Ukraine with the Action Plan on Visa Liberalisation (VLAP). The VLAP included a list of benchmarks covering four ‘blocks’ of issues: 1) document security, including biometrics; 2) illegal migration, including readmission; 3) public order and security; and 4) external relations and fundamental rights. The VLAP was implemented in two phases. During the first phase Ukraine adopted legislation required by the VLAP and during the second phase it implemented the adopted legislation. The European Commission monitored the implementation of the VLAP and published regular progress reports (in total, six reports during the period of 2011-2015).
There are two main reasons why it took Ukraine so long to obtain the visa-free regime. First, Ukraine’s progress with the reforms required under the VLAP was very slow. It was only in December 2015, more than five years after the introduction of the VLAP, that the European Commission found that Ukraine had met all the benchmarks set in the VLAP. The second reason for the delays was connected to the EU. The European Commission published a legislative proposal for the European Parliament and the Council to amend Regulation 539/2001 by moving Ukraine to Annex II more than a year ago (in April 2016). Yet the EU Member States did not proceed with that proposal straight away. Granting the visa-free regime to third countries became a sensitive issue in the EU amid the refugee crisis. Accordingly, the priority for the Member States became revising and strengthening the mechanism for the temporary suspension of the visa-free regime (suspension mechanism). After months of negotiations (which were reportedly blocked by France), on 27 February 2017 the Council finally adopted a Regulation to revise the suspension mechanism, unblocking further progress with the visa-free regime for Ukraine.
Anti-corruption reforms in Ukraine implemented under the VLAP
It is not rare for the EU to grant visa-free regime to third countries (currently 60 countries enjoy it). However, in order to qualify for it, only the neighbours of the EU – the Western Balkans and three Eastern Partnership countries – had first to satisfy the benchmarks set by the EU. In other words, given the attractiveness of the EU visa-free regime for the neighbouring countries, the EU used it as a reward in exchange for important – and often sensitive – reforms.
The third VLAP ‘block’ (public order and security) focused on, inter alia, Ukraine’s anti-corruption reforms. To name just a few examples of success, Ukraine established the National Anti-Corruption Bureau, designed to investigate high-level corruption. Another body, the Specialised Anti-Corruption Prosecutor’s Office, is conducting oversight over such investigations. Ukraine also launched the system of electronic declarations: all state officials (including top officials, such as the President, the Prime Minister and Members of Parliament) have to submit information regarding all of their assets, and the assets of their family members. Such declarations are accessible to the public online. Failure to submit electronic declarations on time and submission of false information in declarations are punishable under Article 366-1 of the Criminal Code. The National Agency for Prevention of Corruption (another newly established body) is tasked with, inter alia, checking the electronic declarations.
Yet despite these improvements, Ukraine’s fight against corruption is far from over (under the Transparency International’s Corruption Perceptions Index 2016, Ukraine was ranked 131st out of 176 countries). Many of the VLAP-inspired reforms need further implementation. For example, the National Anti-Corruption Bureau started investigations of high-level corruption, yet there has been little progress on the stage of court proceedings. In order to accelerate this process, the top priority at present is the establishment of special anti-corruption courts (the draft bill is currently registered at the Parliament). In addition, the reforms are not, as of yet, firmly irreversible. Some political elites, especially (but not only) those connected to ex-President Viktor Yanukovych, oppose anti-corruption reforms and try to sabotage them. For example, in December 2015 48 MPs filed a petition to the Constitutional Court, asking it to recognise certain legal provisions on electronic declarations as unconstitutional (the Court has not yet ruled on this petition). Under these circumstances, it is worrisome that with the introduction of the visa-free regime, the EU is ceding substantial leverage over Ukraine’s government with respect to fighting corruption.
New mechanisms of the EU’s leverage over Ukraine’s fight against corruption
Fortunately, the EU appears to have realised this danger and has taken some steps to adjust its approach. First, under the revised suspension mechanism, the failure of Ukraine to ensure the continuous fulfilment of the benchmarks set in the VLAP is one of the conditions for the suspension of the visa-free regime (revised Regulation 539/2001, Article 1a, para. 4). The Commission will monitor Ukraine’s fulfilment and report on it to the Council and the Parliament at least once a year for a period of seven years since the date of entry into force of the visa-free regime for Ukraine (revised Regulation 539/2001, Article 1a, para. 2b). The EU Council has stressed that the Commission’s monitoring will focus ‘especially on the fight against organised crime and corruption’. Ukrainian civil society and experts welcome this approach and believe that the threat of suspension of the visa-free regime will serve as an effective safeguard against the reversal of Ukraine’s anti-corruption reforms.
Second, the International Trade Committee of the European Parliament has recently recommended including the sustained fight against corruption as a condition for trade preferences granted to Ukraine. This is a welcome improvement compared to the September 2016 proposal of the Commission, which only made reference to the respect for human rights, democracy and the rule of law, but did not explicitly mention the fight against corruption. If the Committee’s recommendations are taken into account, the threat of the suspension of trade preferences will serve as an additional safeguard against Ukraine regressing on anti-corruption reforms.
Last but not least, the EU has the platform to further strengthen its future leverage. All major incentives under the Eastern Partnership (the Association Agreement, the Deep and Comprehensive Free Trade Area and the visa-free regime) have now been granted to Ukraine. However, Pavlo Klimkin, Ukraine’s Minister of Foreign Affairs, has recently made clear that Ukraine is interested in a further deepening of relations with the EU through the integration into the Union’s policies. If the EU agrees to this, it would be prudent to make any future advancement of the bilateral relations also explicitly conditional on (among other things) Ukraine’s sustained fight against corruption.
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