Abstract
This contribution analyses the constitutional challenges which are likely to arise before Ukraine, Moldova and Georgia in the course of implementation of the Association Agreements (AAs) with the European Union (EU) into their legal systems. The contribution focuses on two major challenges to this intricate process. The first challenge is how to ensure effective implementation and application of the AAs within the Ukrainian, Moldovan and Georgian legal orders. The second challenge is how to solve potential conflicts between the AAs and the Constitutions of Ukraine, Moldova and Georgia. It is concluded that the AAs will serve as a template for further political and economic reforms in Ukraine, Moldova and Georgia and will contribute to the integration of these countries into the European legal space.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Moldovan Parliament expediently ratified the Association Agreement on 2 July 2014. It was shortly followed by the ratification by the Georgian Parliament on 18 July 2014. The final accord was played during the simultaneous ratification of the Association Agreement by Ukrainian Parliament and the European Parliament (ratified all three agreements) on 16 September 2014. Meanwhile, all three association agreements are under a lengthy process of ratification by parliaments of the EU Member States. Therefore, the interim application of the association agreements is taking place in accordance with the EU Council decisions (Council Decision 2014/295/EU of 17 March 2014 and COM(2014)609). Application of Title IV (deep and comprehensive free trade area) of the EU-Ukraine Association Agreement has been postponed till 1 January 2016 due to political and security pressure of the Russian Federation.
- 2.
The Ukrainian government’s decision cannot be disconnected from the Russian proposal to establish a Eurasian Union building upon the already existing customs union between Russia, Belarus and Kazakhstan. On the background of this initiative and its implications for EU-Ukraine relations, see: Van der Loo and Van Elsuwege (2012).
- 3.
Van Rompuy (2013).
- 4.
European Council, ‘Statement at the signing ceremony of the Association Agreements with Georgia, Republic of Moldova and Ukraine’, Brussels, 27 June 2014, EUCO 137/14. Available at: <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/143415.pdf>, accessed 10 December 2014.
- 5.
For example, the EU-Ukraine AA comprises 7 titles, 28 chapters, 486 articles, 43 annexes on about 1000 pages.
- 6.
EU-Ukraine Association Agreement (OJ 2014 L161/1). EU-Moldova Association Agreement (OJ 2014 L57/1). EU-Georgia Association Agreement (OJ 2014 L261/4).
- 7.
These features of the AAs were described by Peter Van Elsuwege in Guillaume Van der Loo, Peter Van Elsuwege, Roman Petrov ‘The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument’ EUI Working Papers (Law) 2014/09.
- 8.
See Title II and III of the AAs.
- 9.
For example, the preamble to the EU-Ukraine AA explicitly states that “political association and economic integration of Ukraine within the European Union will depend on progress in the implementation of the current agreement as well as Ukraine’s track record in ensuring respect for common values, and progress in achieving convergence with the EU in political, economic and legal areas [emphasis added]”.
- 10.
Arts. 2 EU-Ukraine, EU-Moldova and EU-Georgia AAs.
- 11.
Art. 2 EU-Ukraine AA and Arts. 3 EU-Moldova and EU-Georgia AAs.
- 12.
Art. 475 (2) EU-Ukraine AA, Arts. 448–449 EU-Moldova AA, Arts. 414–415 EU Georgia AA.
- 13.
Art. 475 (3) EU-Ukraine AA, Art. 450 EU-Moldova AA, Art. 416 EU Georgia AA.
- 14.
Article 9 of the Ukrainian Constitution of 1996 provides that ‘International treaties in force, consented by the Verkhovna Rada of Ukraine [Ukrainian Parliament] as binding, shall be an integral part of the national legislation of Ukraine. Conclusion of international treaties, contravening the Constitution of Ukraine, shall be possible only after introducing relevant amendments to the Constitution of Ukraine.’ Full text in English is available at <http://www.president.gov.ua/en/content/constitution.html>, last assessed 10 July 2014. Article 8 of the Moldovan Constitution of 1994 provides that “The Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which she is a party, to observe in her relations with other states the unanimously recognized principles and norms of international law. The coming into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision of the latter.” Full text in English is available at <http://ijc.md/Publicatii/mlu/legislatie/Constitution_of_RM.pdf>, assessed 10 December 2014. According to Article 6(2) of the Constitution of Georgia, an international treaty or agreement of Georgia unless it contradicts the Constitution of Georgia, the Constitutional Agreement, shall take precedence over domestic normative acts. Full text in English is available at <http://www.parliament.ge/files/68_1944_951190_CONSTIT_27_12.06.pdf>, assessed 10 December 2014.
- 15.
Article 19(2) of Law of Ukraine “On International Treaties of Ukraine” provides that “If duly ratified international treaty of Ukraine contains other rules then relevant national legal act of Ukraine rules of the respective international treaty should be applied”. Article 19 of the Moldovan Law No. 595-XIV ‘On International Treaties’ of 24 September 1999 states: ‘international treaties shall be complied with in good faith, following the principle of pacta sunt servanda. The Republic of Moldova shall not refer to provisions of its domestic legislation to justify its failure to comply with a treaty it is a party to’ (Monitorul Oficial, 2 March 2000, No. 24). Article 6 (1) of the Law of Georgia ‘On International Treaties’ states that an international treaty of Georgia is an inseparable part of the Georgian legislation. ‘Parlamentis Utskebani’, 44, 11/11/1997.
- 16.
For more on application of “pre-signature” and “post-signature” EU acquis in the EU external agreements, see Petrov (2011).
- 17.
May be with exemption of application of the EU sectoral “energy” acquis under the framework of the Energy Community, which Ukraine joined in 2010. See Petrov (2012).
- 18.
Petrov and Kalinichenko (2011). This happens mainly due to (1) the belief that international case law is not relevant to civil law systems, (2) the translation of case law and jurisprudence, (3) lack of translation of case law into Ukrainian to help judges adapt their decisions to best European standards. Furthermore, the Verkhovna Rada of Ukraine is not always expedient in solving conflicts between ratified international agreements and national legislation.
- 19.
More on judicial activism and voluntary application of the EU acquis in the eastern neighbouring countries, see Van Elsuwege and Petrov (2014).
- 20.
Law of Ukraine “On Ratification of the European Convention on Human Rights 1950, First Protocol and protocols № 2, 4, 7 and 11” of 17 July 1997, № 475/97-ВР.
- 21.
Law of Ukraine “On Execution of Judgments and Application of Case Law of the European Court of Human Rights” of 23 February 2006, № 3477-IV.
- 22.
See the 7th Annual Report of the Committee of Ministers ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights’ in 2013. Available at <http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2013_en.pdf>, last visited 10 December 2014.
- 23.
Rodin (2001).
- 24.
Statute of 27 November 1992, nr. 109. For more detail see Bruzelius (2009/10).
- 25.
Maiani (2009/10).
- 26.
Decision of the Polish Constitutional Tribunal K. 15/97, OTK [Orzecznictwo Trybunalu Konstytucyjnego, the collection of decisions of the Constitutional Tribunal], nr. 19/1997, at 380.
- 27.
- 28.
Hungarian Constitutional Court, Decision 30/1998, (VI 25) AB at V. 5.
- 29.
Skoda Auto case, Collection of decisions of the Constitutional Court, vol. 8, p. 149. Therein, the Czech Constitution Court stated that the EU founding treaties result from the same values and principles as that in the Czech constitutional law; therefore, the interpretation of EU competition law by the EU institutions should be taken into account in the course of interpretation of the corresponding Czech rules.
- 30.
Kühn (2003).
- 31.
Ruling of the Constitutional Court of Ukraine on compatibility of the Constitution of Ukraine to the Rome Statue of the International Criminal Court of 11 July 2001, Nr. 1-35/2001.
- 32.
Article 5 of the Constitution of Ukraine provides that “The right to determine and change the constitutional order in Ukraine shall belong exclusively to the people and shall not be usurped by the State, its bodies, or officials”.
- 33.
Petrov and Kalinichenko (2011).
- 34.
For example, Articles 114(1), 124(1), 133(1) of the EU-Ukraine AA state that “Ukraine shall ensure that its existing laws and future legislation will be gradually made compatible with the EU acquis”. Article 153(1-2) of the EU-Ukraine AA reads: “Ukraine shall ensure that its existing and future legislation on public procurement will be gradually made compatible with the EU public procurement acquis. In this process, due account shall be taken of the corresponding case law of the European Court of Justice and the implementing measures adopted by the European Commission as well as, if this should become necessary, of any modifications of the EU acquis occurring in the meantime.”
References
Bruzelius K (2009/10) The impact of EU values on third countries’ national legal orders: EU law as a point of reference in the Norwegian legal system. In: Maiani F, Petrov R, Mouliarova E (eds) European integration without EU membership: models, experiences, perspectives. European University Institute Working Papers (Max Weber Programme), pp 81–89
Kühn Z (2003) Application of European law in Central European candidate countries. Eur Law Rev 28:551–560
Maiani F (2009/10) Legal Europeanisation as legal transformation: some insights from Swiss “Outer Europe”. In: Maiani F, Petrov R, Mouliarova E (eds) European integration without EU membership: models, experiences, perspectives. European University Institute Working Papers (Max Weber Programme), pp 111–123
Petrov R, Kalinichenko P (2011) The Europeanization of third country judiciaries through the application of the EU acquis: the cases of Russia and Ukraine. Int Comp Law Q 60:325–353
Petrov R (2011) Exporting the acquis communautaire through EU external agreements. NOMOS, Baden-Baden
Petrov R (2012) Energy community as a promoter of the European Union’s “energy acquis” to its neighbourhood. Leg Issues Econ Integration 38(3):331–335
Piquani D (2007) Constitutional courts in Central and Eastern Europe and their attitude towards European integration. Eur J Leg Stud 1(2), available at http://www.ejls.eu/issue/2. Accessed 10 Dec 2014
Rodin S (2001) Requirements of EU membership and legal reform in Croatia. Politička misao 38:87–105
Van der Loo G, Van Elsuwege P (2012) Competing paths of regional economic integration in the post-soviet space: legal and political dilemmas for Ukraine. Rev Cent East Eur Law 37:421–447
Van Elsuwege P, Petrov R (2014) Legal approximation of EU law in the eastern neighbourhood of the EU: towards a common regulatory space? Routledge Press, London
Van Rompuy H (2013) Press remarks by the President of the European Council following the EU-Ukraine Summit, Brussels, 25 February 2013 (EUCO 48/13)
Volkai J (1999) The application of the Europe agreement and European law in Hungary: the judgment of an activist Constitutional Court on activist notions, p 8. Harvard Jean Monnet Working Paper, available at www.jeanmonnetprogram.org/papers/99/990801.rtf. Accessed 10 Dec 2014
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Petrov, R. (2016). Implementation of Association Agreements Between the EU and Ukraine, Moldova and Georgia: Legal and Constitutional Challenges. In: Kerikmäe, T., Chochia, A. (eds) Political and Legal Perspectives of the EU Eastern Partnership Policy. Springer, Cham. https://doi.org/10.1007/978-3-319-27383-9_10
Download citation
DOI: https://doi.org/10.1007/978-3-319-27383-9_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-27381-5
Online ISBN: 978-3-319-27383-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)