Blog: Seven recommendations to Ukraine from the EU: how has Ukraine been faring so far?

Russia’s full-fledged invasion of Ukraine has not only reshuffled geopolitical cards, but also set in motion processes hardly anyone reckoned with before. Very much to the indignation of Moscow, Kyiv has neither succumbed to its unprecedented military violence nor abandoned its European aspirations. On the contrary: its integration with the EU has gathered momentum with Ukraine’s candidate bid being approved by the European Commission in June 2022. Together with officially becoming an EU candidate state, Ukraine was presented with seven recommendations it must implement to preserve its candidate status and start accession negotiations. With Kyiv already signalling to have put the required reforms in place and the European Commission promising to publish its report on Ukraine’s implementation progress by the end of spring, it’s time to take stock of how the war-torn country has managed to internalise the EU-inspired reforms so far.

1. Constitutional Court Reform 

The most pressing and the least successful reform endeavour for the Ukrainian government was the Law on the Reform of the Constitutional Court of Ukraine (CCU). As required by the EU, the law must presuppose a clear-cut selection procedure for the appointment of judges to the Constitutional Court based on evaluation of their integrity and professional skills and in line with the recommendations of the Venice Commission – the Council of Europe’s advisory body on constitutional matters. In December 2022, the Ukrainian Verkhovna Rada adopted a draft law on the reform of the selection procedure that envisaged the creation of an Advisory Group (AGE), consisting of Ukrainian and international experts tasked with controlling integrity and expertise of candidates. While the Venice Commission generally welcomes the new draft law, it still sees “room for improvement”. In particular, it recommends adding a seventh international member of the AGE, and including civil society in the selection process of CCU candidates in order to monitor the procedure and make the process more transparent by providing information and feedback on selected candidates. Additionally, the selection process must also set the criteria for electing or appointing Constitutional Court judges with consideration of gender equality standards. Since the EU has voiced its concerns with the adopted law and stressed the need for upholding recommendations set by the Venice Commission, Kyiv has so far fallen short of implementing the first recommendation and must add amendments to the existing law.

2. Judicial Reform 

The second recommendation by the European Commission was to finalise the verification of the integrity of the candidates for the High Council of Justice members by the Ethics Council and the selection of candidates to the High Qualification Commission of Judges of Ukraine. These calls have been voiced by Ukraine’s international partners since 2019, but over the years, the Ukrainian government has been dragging its feet on the implementation. According to experts, the reform of these two bodies, created in 2016, will significantly shape further development of the Ukrainian judiciary in the coming decades. Despite the war, which put a damper on the whole selection process, Ukraine has so far managed to appoint 15 out of 21 members to the High Council of Justice. The selection process of candidates to the High Qualification Commission of Judges is still ongoing but is expected to be finalised by the end of the year. 

3. Anti-corruption Reforms 

Since the signing of the Association Agreement with the EU, Ukraine has launched various anti-corruption efforts. While the legal and institutional basis for prosecution and conviction on corruption charges is in place, its implementation has so far been rather declarative. However, the candidate status has given the Ukrainian government an impetus to step up its efforts in fighting corruption. In particular,  Ukraine fulfilled the requirement of the European Commission to appoint a new head of the specialised Anti-Corruption Prosecutor’s Office (CAPO) and a new director of the National Anti-Corruption Bureau (NABU) through competition. Furthermore, Ukraine also presented its State Anti-Corruption Programme for 2023-2025. At the same time, Ukraine has yet to show its record of effective investigations and prosecutions, which have not started in earnest. Ukrainian civil society also demands to resume the mandatory asset e-declaration, which was suspended after 24 February 2022. 

4. Anti-money laundering law

The third requirement presupposes bringing Ukraine’s anti-money laundering legislation in compliance with the standards of the Financial Action Task Force (FATF) and reforming the law enforcement sector. In her analysis of Ukraine’s progress in implementing the EU’s recommendations for the Stockholm Center for Eastern European Studies, Veronika Movchan points to the most recent FATF report, according to which Ukraine was compliant with 11 recommendations, largely compliant with 22 recommendations and partly compliant with six. According to the expert, the level of compliance is similar to that of Poland. At the same time, in 2022, Ukraine also adopted three crucial laws on ownership structures, prevention of terrorism, and countering of money-laundering proliferation.

5. Anti-oligarch law

Along with the constitutional court reform, the implementation of the anti-oligarch law represents one of the most daunting tasks for the Ukrainian government. The anti-oligarch law is aimed at curbing the excessive influence of oligarchs in economic, political, and public life and must be in accordance with the recommendations of the Venice Commission. In 2021, the Ukrainian Verkhovna Rada already adopted legislation on limiting the influence of oligarchs. The law presupposed creating an oligarchs’ register that would be compiled based on specific criteria defining who falls under the category of an oligarch. The law, despite its quite progressive nature, has drawn a lot of criticism, as the National Security and Defence Council (NSDC), responsible for compiling the list, is chaired by the President, which calls into question the transparency and impartiality of the procedure. In February 2023, the Ukrainian government put on hold the implementation of the law and decided to wait for the opinion of the Venice Commission on how the existing legislation can be improved. While Russia’s war against Ukraine significantly curtailed the influence of oligarchs due to their assets and business losses due to Russia’s military hostilities, the legislation has not been amended and implemented properly. 

6. Media law

One of the EU’s recommendations to Ukraine also covers the reform of the media law. In particular, Ukraine must fight the influence of vested interests by adopting a media law in keeping with the EU audio-visual media services directive. Despite initial criticism of the new legislation on the part of Ukrainian media representatives, the amended version of it adopted in the second reading in December 2022 has so far received mostly positive reviews. The law defines the legal basis for the functioning of media outlets in Ukraine, as well as the principles of state management, regulation and supervision in the field.

According to the law, the state regulatory and supervisory body for media is the National Council for Television and Radio Broadcasting. Whereas earlier this media regulatory body was only entitled to supervise radio and television, now it will also regulate and oversee the work of print and online media. Ukrainian activists and journalists criticise the vast powers of the body, which enable it to block and shut down media outlets without a court ruling. Another bone of contention is the appointment procedure. The members of the National Council for Television and Radio Broadcasting are appointed by the President of Ukraine and the Ukrainian Parliament where the President’s party currently holds the majority.

7. Legislation on national minorities

Ukraine has long been an ethnically and linguistically diverse country with a large portion of national minorities populating its territories over centuries. At the same time, its law on national minorities stemming from 1992 has been considered vague and old-fashioned. The need to reform the old legal basis arose in 2019, when the Ukrainian Parliament adopted a law on the functioning of the Ukrainian language. The law was subsequently criticised by Ukraine’s neighbours, most prominently by Romania and Hungary, as well as by leading international expert organisations, in particular the Venice Commission. They recommended the Ukrainian government to develop a new draft law on national minorities, which would clearly regulate their language rights. 

In December 2022, Ukraine adopted new legislation on national minorities which received positive reviews while some of its aspects were described as vague, especially with regard to language rights, as it is not clear how their guarantee must come about. The new legislation, however, clearly mentions the right of private educational establishments to freely choose the language of the educational process together with the need to ensure the study of the Ukrainian language.  Despite repeated criticism from Romania and Hungary, the final say will belong to the Venice Commission that is about to publish its opinion on the correspondence of the new law to the required standards.

Conclusion

The fulfilment of the seven recommendations set by the European Commission shows that Ukraine has managed to progress on their implementation, even if some law initiatives have not been devoid of criticism and there remains plenty of work to do. However, the fact that Ukraine has stepped up its reform efforts despite the ongoing war illustrates once again that Ukraine’s integration with the EU serves as an important catalyst for the country’s modernisation and democratisation. It is, thus,  in the deepest interest of Ukraine to fully implement the EU’s recommendations, as the start of accession negotiations will ultimately hinge on their successful fulfilment.