Instruments and Mechanisms Guillaume Van der Loo Ghent University - PowerPoint PPT Presentation

Setting up a Deep and Comprehensive Free Trade Area Between the EU and Ukraine: Instruments and Mechanisms Guillaume Van der Loo Ghent University (European Institute, Faculty of Law) Jean Monnet Conference Kyiv, National University of “Kyiv -Mohyla Academy” (22 April 2013) The “EU -Ukraine Association Agreement” : Towards a New Era of Integration without Membership?” G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 1

1. Introduction: The EU-Ukraine DCFTA “ The most advanced agreement of its kind ever negotiated by the European Union ” (K. De Ghucht) • Origins and genesis of the EU-Ukraine DCFTA • The “comprehensive” character of the DCFTA • The “deep” character of the DCFTA • Conclusion G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 2

2. Genesis and origins of the EU-Ukraine DCFTA • Limitations EU enlargement : Need to develop alternative for accession • Establishment ENP (2003) and the Eastern Partnership (2008) • Objective: “avoid new dividing lines” and promote “prosperity, stability and security” in the EU’s neigbourhood. • Instrument and objective: political association and economic integration G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 3

• First Commission Communication’s: “ stake in the EU’s internal market ” and free movement of persons goods, services and capital • “Neighbourhood Agreements” to replace PCA’s • “Global Europe Strategy” COM(2006) 576 • Commission envisages “Deep and Comprehensive” FTAs with ENP partners • Association Agreements first offered to Ukraine, then to other Eastern Partnership Countries (2009), and only in 2011 to Mediterranean partners as response to Arab Spring (negotiations still have to start) G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 4

• Negotiations on Association Agreement (AA) launched in March 2007, on DCFTA in February 2008 • Difficult negotiations (eg . quota’s Ukrainian agricultural products to EU, car sector, geographical indications/trade marks, Ukraine’s export duties, energy …) • AA initialled March 2012 , DCFTA July 2012 • Provisional application parts DCFTA (Ukraine’s position: as much as possible) G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 5

The EU-Ukraine DCFTA: • Objective: “to establish conditions for enhanced economic and trade relations leading towards Ukraine’s gradual integration in the EU Internal Market by setting up a Deep and Comprehensive Free Trade Area ” (Art. 1) • “ Comprehensive ”? : FTA has broad range covering all the main area’s of EU- Ukraine trade relations: not only trade in goods but also liberalization of services and binding provisions on IPR, public procurement, competition, energy, SPS, ect. • “ Deep ”? : quid pro quo : legislative approximation <-> market access • First legally binding instrument for legislative approximation • Legislative approximation as instrument for economic integration • Legislative approximations as instrument for broader ENP and Eastern Partnership objectives G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 6

3. The “Comprehensive” character of the FTA • Comprehensive character of EU FTA not new (eg. Colombia and Peru (signed 2012), Chili (2003), Mexico (2000), Korea (2011), Canada (- ),…) • Index EU-Ukraine DCFTA 1. National Treatment and Market access 9. Intellectual Property for goods 2. Trade Remedies 10. Competition 3. Technical Barriers to Trade 11. Trade-Related Energy 4. Sanitary and Phytosanitary Measures 12. Transparency 5.Customs and Trade Facilitation 13. Trade and Sustainable Development 6. Establishment, Trade in Services and 14. Dispute Settlement Electronic Commerce 7. Current Payments and Movement of 15. Mediation Mechanism Capital 8. Public Procurement 7

• Trade in goods :  WTO compatible (Art. XXIV GATT)  FTA with transitional period of maximum 10 years  Transitional regime for worn clothing  WTO confirm National Treatment  Export duties phased out and prohibited  Export subsidies on agricultural products prohibited  Import and export restrictions prohibited  WTO conform safeguard measures (specific regime for cars) • Other trade area’s: cf. infra or following presentations G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 8

4. The “deep” character of the EU -Ukraine DCFTA • Integration in EU Internal Market under the condition of legislative approximation (market access conditionality) • The different DCFTA Chapters contain different legislative approximation obligations • Fascinating but complex agreement: illustration 4 cases • Ensure uniform interpretation and application of acquis :  fixed body of acquis identified for approximation? Timetable?  Final objective of legislative approximation? Link with liberalization?  Amend/update the agreement to take into account evolution EU acquis ? (moving target)  Uniform interpretation guaranteed?  Monitoring implementation? G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 9

DCFTA Link Scope Procedure to Obligation Monitoring Chapter approximation Acquis amend ECJ conform procedure with market defined scope of interpretation access? acquis Technical Conclusion No No No Basic barriers to ACAA Trade “ Determination SPS No, but Basic No Basic of equivalence ” “Comprehe nsive Strategy ” Services Internal Market Yes, + Detailed Yes Detailed (4 sections) Treatment timtetable Public Market Access Yes, + Yes Yes Basic Procurement timetable 10

5. Conclusion • The DCFTA is a unique trade agreement which must gradually and partly integrate Ukraine in the EU Internal Market under the condition that it implements its legislative approximation commitments • Does the DCFTA meets its objectives and those of the ENP/Eastern Partnership?( “Integration in EU Internal Market”)  Mixed results:  More than FTA, several ‘integration’ elements  But not full EU Internal Market integration  This DCFTA is politically the maximum feasible option to integrate Ukraine in EU Internal Market • Complex agreement • The most difficult part has yet to come: implementation G. Van Der Loo: The EU-Ukraine DCFTA - Jean Monnet Conference (Kyiv - 22.04.13) 11