When applying for EU membership on behalf of his country in 2022, Ukraine’s President requested a “new special procedure” commonly referred to as fast-tracking. Considering the wartime circumstances, this request does not come as a surprise. Indeed, according to some research, joining the EU takes on average around nine years. Some of the current candidate countries have been negotiating with the Union for more than ten years. The process of acceding to the EU is known for being lengthy and complicated, without any deadlines or guarantees of success. This blog post looks closer at the issue of fast-tracking EU membership applications from the viewpoint of Union law.
When seen through the legal prism, there are a number of open questions in this domain and not much scholarly commentary. The issue of fast-tracking remains largely underexplored, and its EU law analysis is lacking. Below, this blog post addresses three of such open questions in the hopes of stimulating more substantial legal research on the matter. First, what does fast-tracking mean exactly? Second, is fast-tracking possible under the current legal framework? Third, is Ukraine’s application currently being fast-tracked?
Meaning of Fast-Tracking
Before discussing whether fast-tracking EU membership applications is possible, whether it is desirable, what the implications would be and so on, it is necessary to have some understanding of what is behind the word “fast-tracking”. As shown further below, the absence of a commonly adopted definition of “fast-tracking” makes researching and discussing it particularly difficult. In EU enlargement law, there is no such term. The single provision regulating the process of accession in the primary law, Article 49 TEU, does not contain this or a similar term. Nor can it be found in the jurisprudence of the Court of Justice which is, judging from its case law, quite reluctant to step into the area of enlargement. In the same vein, the secondary law and the relevant soft law instruments do not mention anything that can be seen as fast-tracking. Similar concepts that would allow deducing the meaning of fast-tracking by analogy also do not seem to exist.
Approaching this issue semantically, one can suggest that fast-tracking is supposed to denote a process of acceding to the Union which is faster than the regular procedure. The TEU contains only the basics of this procedure, most parts of which flow from soft law regulation and enlargement practice. The process starts when a third country submits an application to the Council. After receiving the Commission’s opinion, the Council grants the country candidate status. Then, based on the negotiating framework drafted by the Commission and approved by the Council, the accession negotiations start with the screening phase. After that, the negotiations take place, structured into thirty-five chapters of the acquis and end only when all chapters are closed. The process culminates in the unanimous approval of the country’s accession by the Council, a vote in the European Parliament and signing of an accession treaty subject to ratification by the acceding country and all Member States.
A process that is faster or less complicated than the above can be considered fast-tracking. This blog post suggests that there might be two meanings of fast-tracking: a maximal and a minimal one.
In its maximal sense, fast-tracking may mean admitting a candidate country bypassing the established accession procedure shaped by soft law instruments and the previous rounds of enlargement. It has been argued elsewhere that Ukraine could accede to the EU immediately and before fully satisfying the Copenhagen Criteria. In the maximal meaning, fast-tracking encompasses disregarding the practice of enlargement and some requirements for membership to the fullest extent possible while still respecting the primary law, namely Article 49 TEU and Article 2 TEU it refers to.
The second meaning is less ambitious and may refer to an expedited procedure that still includes all the procedural stages and requires compliance with all the accession criteria. In its minimal sense, fast-tracking means neither modifying the existing enlargement law nor disregarding any part of it, including soft law instruments and practice. As further explored below, minimal fast-tracking would mean some acceleration when passing certain procedural stages of the accession process without, however, skipping any of them.
Possibility of Fast-Tracking
As mentioned above, the term “fast-tracking” is absent in Union law as it currently stands. Furthermore, the relevant law on EU enlargement does not contain any special procedures or rules that would allow special treatment of some candidate countries. A simple reading of the TEU and the TFEU clearly shows that there is only one general accession procedure contained in Article 49 TEU that every third country has to go through before becoming a Member State of the Union, including those countries that used to be members of the Union. The two main soft law instruments—the 1993 Copenhagen Criteria and the 2020 Enlargement Methodology—also do not contain anything that can be interpreted as a special expedited procedure. From the viewpoint of EU law, it is thus clear that there is no possibility for fast-tracking sensu stricto under the current regulatory framework.
However, this does not mean that fast-tracking is absolutely impossible in practice. When understood in its maximal meaning, there is very little but still some room for manoeuvre within the accession procedure. The obligation to respect and promote European values mentioned in Article 2 TEU is spelt out clearly and does not allow any compromises. In the same vein, the geographical criterion cannot be disregarded either. Nevertheless, when it comes to the Copenhagen Criteria, Article 49 TEU says that those “shall be taken into account.” This means, first, that Article 49 TEU itself does not require full compliance with the Criteria and leaves it up to the European Council to establish whether a certain country satisfies those Criteria. Second, the European Council can revise and change the Copenhagen Criteria at any point in time if it deems it necessary to do so. Furthermore, the procedural steps that follow from the enlargement practice but are not required by Article 49 TEU can, at least in principle, be skipped. The Enlargement Methodology can be revised by the Commission, resulting in a different procedure that could be seen as a fast-track process, although applicable to all candidate countries. Finally, the individual negotiating frameworks, drafted by the Commission and adopted by the Council, can be changed too. Theoretically, such modified negotiating frameworks may introduce procedures that can be seen as fast-tracking of applications made by specific candidate countries.
There are some opportunities for fast-tracking in its minimal understanding as well. Without disregarding any part of the Copenhagen Criteria and skipping any procedural steps, there may be more expedience at some stages of the accession process. In a nutshell, fast-tracking in its minimal understanding can be boiled down to an increase in the pace of the current accession procedure without modifying it. Just one example may be the screening phase. This refers to the “preparatory stage of accession negotiations” that consists of analysing the candidate country’s laws with the aim of ascertaining its preparedness to adopt the acquis and producing a roadmap for the reforms needed for the eventual accession. While usually taking at least a year, this stage can be completed faster. The same possibility exists for other procedural stages, such as preparing the Commission’s initial opinion and the formal granting of the candidate status by the Council.
It is important to note that the above illustrates only theoretical possibilities for fast-tracking purely from the legal viewpoint. The issue of fast-tracking should be analysed further in the wider context and shall be carefully assessed in light of the many implications that fast-tracking is likely to entail. For example, fast-tracking some applications while not doing so with others can be controversial as it will likely raise some concerns over whether all candidate countries are treated equally, eventually leading to certain frustration. Also, admitting new countries to the EU before undertaking certain reforms is likely to endanger the functionality of the Union and the efficiency of its decision-making. As pointed out elsewhere, the Copenhagen absorption capacity criterion is playing an increasingly important role in the current enlargement phase. This criterion relates to the preparedness of the Union to integrate new members, particularly concerning the impact of the increase in the number of Member States on the functioning of Union’s institutional structures and efficiency of its decision-making processes. The European Council clearly stated that “necessary internal reforms” have to be introduced before the next round of enlargement takes place.
Fast-tracking in its maximal understanding can result in admitting countries that do not satisfy the well-established accession criteria, risking the integrity of the EU legal order. An example of how the accession of third countries before they fully satisfy all criteria can cause some difficulties may be the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania. The possibility for the CVM was established in the respective act of accession. In essence, the Commission monitored the progress of the two countries in the fields of judicial reform, fight against corruption and, in the case of Bulgaria, also fight against organised crime. The Commission set certain benchmarks, and the two Member States were required to report annually on how they addressed those benchmarks. Launched in 2007 and supposed to be in place for three years, the Mechanism was formally closed by the Commission only in 2023—more than fifteen years after the two countries acceded to the Union. Furthermore, even in its minimal understanding, any expedited procedure still presents certain risks. Many of the procedural stages, such as screening or preparing the Commission’s opinions, require an outstanding amount of thorough and time-consuming analytical work. Completing those stages too fast may result in mistakes or may prove to be simply impossible in light of limited resources.
Ukraine’s Pending Application
As demonstrated above, there are considerable uncertainties over the meaning of fast-tracking and its legal possibility. Another particularly challenging question is whether fast-tracking already takes place, namely in the context of Ukraine’s pending application to join the Union.
According to recent research, the progress of Ukraine towards membership in the EU may be an example of fast-tracking to a certain degree. This is based on how fast, when compared to some other current candidate countries, Ukraine is passing some stages of the accession procedure, corresponding to the minimal understanding of fast-tracking as formulated above. For example, getting the candidate status after formally applying took many years for other candidate countries but only a few months for Ukraine. On the other hand, one shall bear in mind that, after submitting its application three years ago, Ukraine is still in the screening phase at the moment. A comparison with the countries that joined the EU in the 1995 round of enlargement demonstrates that the accession process of Ukraine is actually not that fast. For Finland, it took less than three years to join the Union. Of course, the circumstances were absolutely different in many respects, but it is still an example of how quickly the accession process may progress.
Whether Ukraine’s application is being fast-tracked is perhaps a question that is too early to respond to. It will be possible to do so with some certainty only when the country joins the Union. At the moment, the answer to this question significantly depends on which other former or current candidate countries are taken as a reference for comparison, as well as on how one understands fast-tracking.
Conclusions
This blog post demonstrates that, from the viewpoint of Union law, the question of fast-tracking EU membership applications substantially lacks clarity. First of all, there is no agreement on what exactly fast-tracking means or should mean. Building on this uncertainty, it is also unclear whether fast-tracking is possible from a legal perspective. Finally, with regard to Ukraine, it is too early to say whether its EU membership application is being fast-tracked or not. Apparently, more research is needed on the subject matter.
These uncertainties over the issue of fast-tracking build upon several underlying factors. First, as observed in the relevant scholarship, the regulation of enlargement is very scarce in the primary law of the Union. This grants the EU institutions and the Member States some substantial discretion and a lot of room for manoeuvre. Second, the matters of enlargement are of profound importance to the candidate countries. The hopes and expectations of millions of people in those nations are connected to the prospective EU membership of their countries. The lengthy and complicated accession process naturally leads to certain frustration and desire for some expedience, particularly in the form of fast-tracking.
Dr. Serhii Lashyn is a postdoctoral fellow at the University of Hamburg and an adjunct lecturer at Europa-Kolleg Hamburg.
FUNDING STATEMENT: Funded under the Excellence Strategy of the Federal Government and the Länder.