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The EU-Ukraine Association Agreement and Deep and Comprehensive Free
Trade Area
Studies in EU External Relations

Edited by

Marc Maresceau (Ghent University)

Editorial Board

Marise Cremona (European University Institute)

Günter Burghardt ( former EU ambassador Washington)
Alan Dashwood (University of Cambridge)
Frank Hoffmeister (European Commission)
Pieter Jan Kuijper (University of Amsterdam)

VOLUME 10

The titles published in this series are listed at brill.com/seur

 The EU-Ukraine Association
Agreement and Deep and
Comprehensive Free Trade Area
A New Legal Instrument for EU Integration
without Membership

By

Guillaume Van der Loo

LEIDEN | BOSTON
 

Cover illustration: Courtesy of Guillaume Van der Loo, “Ministry of Foreign Affairs of Ukraine”, 2015.

Library of Congress Cataloging-in-Publication Data

Names: Van der Loo, Guillaume, author.

Title: The EU-Ukraine Association Agreement and deep and comprehensive free
trade area : a new legal instrument for EU integration without membership
/ by Guillaume Van der Loo.
Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Studies in EU
external relations ; volume 10 | Based on author’s thesis (doctoral -
Ghent University, 2014). | Includes bibliographical references and index.
| Description based on print version record and CIP data provided by
publisher; resource not viewed.
Identifiers: LCCN 2015045359 (print) | LCCN 2015045139 (ebook) | ISBN
9789004298651 (E-book) | ISBN 9789004298644 (hardback : alk. paper)
Subjects: LCSH: European Union--Ukraine. | Ukraine--Foreign economic
relations--European Union countries. | European Union countries--Foreign
economic relations--Ukraine. | Free trade--European Union countries. |
Free trade--Ukraine.
Classification: LCC KJE5112.U38 (print) | LCC KJE5112.U38 V36 2016 (ebook) |
DDC 382/.914209477--dc23
LC record available at http://lccn.loc.gov/2015045359

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ISSN 1875-0451
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Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands.

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This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Foreword by Karel De Gucht (European Commissioner

for Trade (2010–2014)) ix
Acknowledgements xii
List of Tables xiv
List of Abbreviations xv

Introduction 1
1 The EU-Ukraine AA and the Union’s Neighbourhood Relations:
An Introduction 4
2 Research Objectives and (Academic) Relevance 10

PART 1
Integration Agreements Concluded by the EU: Criteria and
Overview

1 ‘Integration Agreements’ Concluded by the EU: A Useful but

Tricky Legal Concept 23

2 The conditio sine qua non: The Obligation to Apply, Implement or

Incorporate a Predetermined Selection of EU acquis 28

3 Criteria to Ensure the Uniform Interpretation and Application

of the EU Law 35
3.1 Procedures to Amend or Update the Incorporated Acquis 39
3.2 Obligation for ECJ Case-law Conform Interpretation of the
Incorporated Acquis 42
3.3 Judicial Mechanisms to Ensure a Uniform Interpretation and
Application of the EU Law 44

4 Overview EU integration agreements 49

PART 2
The EU and Ukraine: From Partnership and Cooperation
towards Association

5 Background of the EU-Ukraine AA: The PCA and ENP 61

5.1 The EU-Ukraine Partnership and Cooperation Agreement 62
vi Contents

5.1.1 Political and Historical Background 62

5.1.2 Legal Basis, Objectives and “Essential Elements” of the PCA 67
5.1.3 Trade-related Provisions 70
5.1.4 Direct Effect of the PCA(s) 76
5.1.5 Institutional Framework 78
5.1.6 Concluding Remarks 79
5.2 The ENP and the EaP: The Policy Framework of the EU-Ukraine AA 82
5.2.1 Objectives and Instruments of the ENP 82
5.2.2 The EU-Ukraine Action Plan and Association Agenda:
Instruments for EU Integration without Membership? 88
5.2.3 The ENP and Article 8 TEU 95

6 Legal and Political Hurdles towards the Signing and Conclusion of the
EU-Ukraine AA 100
6.1 The Long and Winding Road towards the Signing and Conclusion of
the EU-Ukraine AA 100
6.1.1 The EU’s Pre- and Post-Lisbon Institutional Set-up for Negotiating
the EU-Ukraine AA 101
6.1.2 Negotiating the EU-Ukraine AA: A post-factum Analysis 104
6.1.3 Initialling the EU-Ukraine AA and Political Hurdles towards the
2013 Vilnius Eastern Partnership Summit 110
6.1.4 The ‘Maidan Revolution’ and the Two-phase Signature of the
EU-Ukraine AA 115
6.1.5 Procedural Requirements for the Provisional Application and
Ratification of the Mixed EU-Ukraine AA 120
6.2 The EU-Ukraine AA and the Triangular EU-Ukraine-Russia
Relationship 131
6.2.1 Ukraine’s Reluctant Economic Integration in the Post-Soviet Area 131
6.2.2 Russia’s Trade-related Retaliation Measures and Political Pressure
against the EaP AAs and DCFTAs 135
6.2.3 The EU-Ukraine-Russia ‘Trilaterals’: Dispelling Russia’s Trade-
related Concerns? 141
6.2.4 Reconciling Economic Integration Initiatives in the EU-Ukraine-
Russia Triangular Relationship: Prospects, Opportunities and
Challenges 153

7 A Legal Analysis of the EU-Ukraine AA 165

7.1 The Legal Basis of the EU-Ukraine AA 165
7.1.1 The Two-Phase and ‘Split’ Substantive Legal Bases of the
EU-Ukraine AA 166
7.1.2 Quid Article 8 TEU? 172
Contents vii

7.1.3 The (Absence of a) Legal Basis for EU Integration

Agreements 175
7.2 The ‘Integration without Membership’ Dimension of the
Preamble and Objectives of the EU-Ukraine AA 175
7.3 The Comprehensive Character of the EU-Ukraine AA 190
7.3.1 The CFSP Dimension of the EU-Ukraine AA 191
7.3.2 The AFSJ Dimension of the EU-Ukraine AA: Provisions
on the Treatment of Workers and Mobility of Persons and
(The Preclusion of ) Their Direct Effect in the EU
Legal Order 193
7.3.3 The Comprehensive Institutional Framework of the
EU-Ukraine AA 204
7.4 Enhanced Conditionality in the EU-Ukraine AA: Common Values
Conditionality vs. Market Access Conditionality 206
7.4.1 Common Values Conditionality 208
7.4.2 Market Access Conditionality 210
7.5 Concluding Remarks 213

PART 3
The EU-Ukraine DCFTA: A New Legal Instrument for Integration
into the EU Internal Market?

8 The EU-Ukraine DCFTA: A “Deep” and “Comprehensive” FTA? 217

9 The ‘Traditional’ Scope of the DCFTA: Trade in Goods and Flanking

Measures 226
9.1 The Scope and Pace of Elimination of Customs Duties 226
9.2 The EU’s Autonomous Trade Preferences: Unilateral
Implementation of the DCFTA Tariff Elimination 233
9.3 Export Duties, Trade Remedies, Rules of Origin and the
Application of the DCFTA in Crimea 237
9.4 Comparison with the Moldova and Georgia DCFTAs 243
9.5 Concluding Remarks 246

10 The DCFTA: Market Access Conditionality and Mechanisms to Ensure

the Uniform Interpretation and Application of the EU Acquis 247
10.1 Technical Barriers to Trade 248
10.2 Sanitary and Phytosanitary Measures 255
10.3 Establishment, Trade in Services and Electronic Commerce 259
10.4 Public Procurement 270
viii Contents

10.5 DCFTA Chapters without Market Access Conditionality 276

10.5.1 Competition 276
10.5.2 Trade-related Energy 280
10.5.3 Intellectual Property, Movement of Capital, Customs and
Trade Facilitation, Transparency and Trade and Sustainable
Development 284
10.6 Economic and Sector Cooperation 289

11 Horizontal DCFTA Provisions and Mechanisms 292

11.1 The DCFTA DSM 292
11.2 DCFTA Dispute Settlement Procedures Regarding Legislative
Approximation: Challenges for the Autonomy of the EU Legal
Order? 296
11.3 Horizontal Provisions Related to Legislative Approximation 301

12 An Assessment of the EU-Ukraine DCFTA 304

12.1 A Legal Instrument for Gradual Integration in the EU Internal
Market? 304
12.2 An Innovative EU Trade Agreement? 311
12.3 The EU-Ukraine DCFTA Compared to the Moldova and Georgia
DCFTAs 313
12.4 A (too) Complex and Costly Agreement? 319
12.5 A Blueprint for Other EU ‘Neighbourhood’ (Integration)
Agreements? 329
12.5.1 The Remaining – Non-associated – EaP Countries 330
12.5.2 The ‘Mediterranean’ DCFTAs 333
12.5.3 The Micro-States and Switzerland 337

13 Sectoral Integration Agreements in the ENP: The Energy Community

Treaty and the Common Aviation Area 342
13.1 The Energy Community Treaty 343
13.2 The (EU-Ukraine) Common Aviation Area Agreement 349
13.3 Sectoral Integration into the EU Internal Market: The Way
Ahead? 356

Conclusion 358
1 Final Conclusion 358
2 Outlook (1 July 2015) 364

Bibliography 369
Index 412
Foreword

World trade was at 16% of the world GDP in 1914, after the first wave of global-
ization. Today, goods and services exports amount to more than double that
percentage – to say nothing of the vast cross-border stocks and flows of invest-
ment. What is more, a hundred years ago, most consumer goods were produced
in one country. Today, the vast majority of the products you use every day are a
mix of components and services delivered by workers all over the world.
Over several years, the European Union (EU) negotiated Association
Agreements (AA) and Deep and Comprehensive Free Trade Agreements
(DCFTA) with the governments of Armenia (now abandoned), Georgia,
Moldova and Ukraine. The shared vision of a mutual trade policy, with unhin-
dered access to each other’s markets, would bring prosperity and stability to all
those involved. Benefits are clear, as described in this book. However, sadly,
these partnerships were construed as being ‘hostile’ by a dominant neighbour,
Russia, who feared these agreements would impact and down-size its own
influence in these partner countries. Strangely, Russia only objected to these
agreements at a very late stage in the negotiation rounds, and particularly in
those involving the EU and Ukraine. What should have been a strictly bilateral
agreement between two like-minded partners was being hijacked into a
‘Tri-partie’ debate on the impact the agreement would have on Russia. Rude
but strategic.
I, as the former European Commissioner for Trade during that period, still
remember the commotion surrounding the Vilnius Summit (2013). Both par-
ties, the EU and Ukraine, had been working hard to get the AA and DCFTA
ready for signature. We had actually been negotiating these agreements since
1999, but they were formally launched in 2008. The EU is Ukraine’s largest trad-
ing party (1/3 of its trade). So the more ambitious the agreement, the more
both sides are able to develop and align their industries, become competitive
and benefit from diversifying products and services, a plus-point for
consumers.
Unfortunately, just a few days before its signing, the President at that time,
Mr Yanukovych, decided to temporarily suspend the agreements’ signature. It
was an inconsiderate move and a big disappointment, largely felt among the
Ukrainian people. Was it because Mr Yanukovych was secretly preparing for
Ukraine’s membership to Russia’s new geopolitical project, the Euroasian
Economic Customs Union? Was it because of President Putin’s pressure,
threats or attractive (gas) promises? Or was Mr Yanukovych just playing both
sides, biding time, so to benefit as much as possible, personally? The reasons
x Foreword

for his actions remain a blur, but I think we can safely say ‘all of the above’. One
force, however, that Mr Yanukovych had completely underestimated, was the
voice of the Ukrainian people.
Since the 2014 Euromaidan Revolution, the road for Ukrainians towards
democracy and better living standards has not been without its pain and suf-
fering. Ukraine is confronted with both a financial crisis and internal clashes,
sparked and maintained by outside interferences, with the annexation of the
Crimea as a result. A blatant attack on the territorial integrity of a sovereign
Ukraine. What had started with a trade policy, aimed at providing a strong
partnership and economic opportunities for the Ukrainian people, has trans-
formed Ukraine into a geopolitical battle field, nestled between two differing
spheres of influence.
With a change in leadership, the ousting of Mr Yanukovych, the EU and
Ukraine finally signed the DCFTA on the 27th of June 2014, as part of their
broader AA. As this book highlights, the agreement is provisionally applied
until 31 December 2015 with preferential access unilaterally granted to the
Ukraine to the EU market, providing it with the necessary solace until the 2016
implementation of the DCFTA. Since the EU does not recognize Russia’s illegal
annexation of both the Crimea and Sevanstopol, the imports (goods/services)
and investments from these areas are banned.
The solution to the Ukrainian crisis is largely political in nature, but trade
openness can also play a positive role. Once the December 2015 deadline
passes, Ukraine will gain the widest possible access to one of the largest mar-
kets in the world, which will stimulate more growth, stability, promote reforms,
reduce poverty, create job opportunities and much more. Not to mention
strengthen friendship bonds between the two partners, especially for Eastern
EU Member States this is of great, historical, importance. This new-found suc-
cess for Ukraine will also give Russia an understanding of the regional impor-
tance of having independent, prosperous and stronger neighbours, especially
if it were to fully implement its own WTO accession commitments.
This book is an interesting read. It provides for a different analysis of
the AA/DCFTA. While I experienced the diplomatic discussions behind the
scenes, the author looks to the agreement’s legal basis and the jurisprudence
attached. The research question whether the AA/DCFTA is a new legal instru-
ment for EU integration without promising full membership is vital in answering
to the EU’s enlargement potential and implications. Therefore, this book com-
plements the current political assessment of the agreement and situation.
An aspect I would like to highlight is that during this experience an
­important limitation was exposed. That of the unhelpful dependence on natu-
ral resources, especially on Russian gas exports, which make up significant
Foreword xi

­ roportions of both the EU and Ukraine’s energy needs. It is Putin’s leverage

p
over Europe and it must be addressed. For instance, by becoming more energy
efficient, strengthening the Single Market and exploring new, possibly renew-
able energy sources within the borders. The potential idea of the EU gaining
preferential access to energy exports from a friendlier partner, the US, via the
Transatlantic Trade and Investment Partnership, can possibly fill this gap and
have positive benefits for Ukraine too.
With the gradual decline of tariffs around the world, it is clear that the main
subject of trade negotiations in this time period will be behind-the-border
policies, like regulatory coherence, on public procurement, investment, ser-
vices but also on setting global standards on sustainability, human and labour
rights and the environment. There is no wish for dominance of one region over
the other nor to encircle or exclude any trade partner. Working together, pref-
erably at the multilateral level, is and will always be the priority. That’s what
Russia lacks to understand, the value of cooperation without dominance.
There the omens are not particularly positive, thanks to Mr Putin.

Karel De Gucht
European Commissioner for Trade (2010–2014)
Acknowledgements

This book is mainly based on my doctoral dissertation, which was defended at

the law faculty of Ghent University in December 2014. Only three months ear-
lier, the historical EU-Ukraine Association Agreement – the main subject of
this work – was finally ratified by the Ukrainian and European Parliament. Just
as the Association Agreement, this research had to face and overcome several
challenges. In this process, I have received support and encouragement from
many people, which was essential for the continuation and finalisation of this
stimulating but demanding exercise.
First and foremost, I want to thank my supervisor, Prof. Peter Van Elsuwege.
He strongly influenced my research ideas and was a continuous source of
inspiration and encouragement. Peter was on permanent standby to offer
counsel and always succeeded to nudge me back on track, even in the difficult
times when the fascinating but ever-moving subject of my research was in
limbo. A similar gratitude belongs to my copromotor, Prof. Jan Orbie.
I also would like to express my sincere gratitude to the other members of my
guidance committee. This work greatly benefited from my discussions with
Prof. Maresceau, who triggered my interest in this topic with his lively courses
EU (external relations) law. Moreover, the encouragement and guidance of
Prof. Maresceau – the Series Editor of this distinguished Studies in EU External
Relations book series – was essential for the publication of this work. Also the
valuable comments of Prof. Inge Govaere and Prof. Christophe Hillion have
improved this research. I also thank Prof. Roman Petrov for our academic
cooperation and his invitations to the interesting and topical Jean Monnet
conferences in Kiev. Roman introduced me to several cultural, historical and
culinary facets of Kiev, including its packed taxis. I am also grateful to the other
members of my PhD evaluation committee, i.e. Prof. Jacques Bourgeois, Prof.
Erwan Lannon and Lothar Ehring of the European Commission.
I would also like to thank my colleagues at the Centre for European Policy
Studies, in particular Dr Hrant Kostanyan, Michael Emerson and Prof. Steven
Blockmans. Our cooperation during the final stages of writing this book was
extremely useful for me and improved the quality of this work.
My deepest gratitude also goes to the officials of the European Commission,
the Support Group for Ukraine, the EEAS, the Council, the EU Delegation in
Kiev and the Government of Ukraine who sacrificed some of their valuable
time to respond to my questions and give me relevant behind-the-scenes
insights and information.
Acknowledgements  xiii

My doctoral research and the publication of this book were made possible
by the generous funding of the Special Research Fund (BOF) of Ghent
University and the Research Foundation – Flanders (FWO). For the practical
assistance with the publication of this study, I want to thank John Bennett and
his colleagues of Brill/Nijhoff publishers.
The ideas presented in this book evolved after many thought-provoking dis-
cussions at various conferences and workshops. Moreover, I was lucky to be
surrounded at the Ghent European Law Institute by interesting, helpful and
joyful colleagues. Dr Hans Merket and Dr Merijn Chamon deserve special
mention for their assistance in the final stages of my research.
I would like to thank my friends, parents and sister. They were a continuous
source of motivation and recreation during this research.
Last, but definitely not least, I would like to thank my beautiful Sarah for her
never-ending love and support. I dedicate this book to her.

Guillaume Van der Loo

Ghent/Brussels, 1 July 2015
List of Tables

1 Criteria for an EU integration agreement 49

2 Overview EU integration agreements 51
3 Proposed and adopted scope of provisional application of the EU-Ukraine
AA 124
4 Explicit and implicit references to EU membership and (economic) integration
­objectives in EU neighbourhood agreements 186
5 DCFTA tariff reduction (agriculture) by product groups in Ukraine and the EU
(share of tariff lines within product group subject to each type of
liberalisation) 230
6 DCFTA procedures for market access conditionality and procedures for the
uniform interpretation and application of the incorporated EU acquis 305
7 Unique DCFTA provisions (not related to market access conditionality) 313
8 Key differences between the Ukraine DCFTA and the Moldova and Georgia
DCFTAs 316
9 DCFTA legislative approximation obligations/clauses 323
10 Indication of the scope of the incorporated EU acquis in the
EU-Ukraine AA 325
11 EU integration agreements concluded in the framework of the ENP 342
List of Abbreviations

AA Association Agreement
ACAA Agreement on Conformity Assessment and Acceptance
(of Industrial Products)
AFSJ Area of Freedom, Security and Justice
AP Action Plan
ASEAN Association of Southeast Asian Nations
CAA Common Aviation Area
CCP Common Commercial Policy
CCT Common Customs Tariff
CEECs Central and East European Countries
CFSP Common Foreign and Security Policy
CIB Comprehensive Institution Building (Programme)
CIS Commonwealth of Independent States
COMECON Council for Mutual Economic Assistance
CS Common Strategy
CSDP Common Security and Defence Policy
CSR Common Strategy Russia
CSU Common Strategy Ukraine
DCFTA Deep and Comprehensive Free Trade Area
DG Directorate-General
DSM Dispute Settlement Mechanism
DSU Dispute Settlement Understanding
EA Europe Agreement
EaP Easter Partnership
EaP AAs Eastern Partnership Association Agreements
EC European Community
ECAA European Common Aviation Area
ECJ European Court of Justice
ECT Energy Community Treaty
EEA European Economic Area
EEAS European External Action Service
EEC European Economic Community
EEU Eurasian Economic Union
EFTA European Free Trade Area
EMAA Euro-Mediterranean Association Agreement
ENI European Neighbourhood Instrument
ENP European Neighbourhood Policy
xvi List of Abbreviations

ENPI European Neighbourhood and Partnership Instrument

EPA Economic Partnership Agreement
EU European Union
EurAsEC Eurasian Economic Community
FTA Free trade area
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GI(s) Geographical Indication(s)
GSP General System of Preferences
ICC International Criminal Court
ILO International Labour Organization
IMT Internal Market Treatment
LNG Liquefied Natural Gas
MFA Ministry of Foreign Affairs
MFN Most-Favoured-Nation
MRA Mutual Recognition Agreement
NATO North Atlantic Treaty Organization
NEC Neighbourhood Economic Community
NIS Newly Independent States
NPAA National Programme for the Adoption of the Acquis
OSCE Organization for Security and Cooperation in Europe
PCA Partnership and Cooperation Agreement
PHARE Poland and Hungary Assistance for Reconstruction of Economy
PHLG Permanent High Level Group
PLO Palestine Liberation Organisation
RTA Regional Trade Agreement
SAA Stabilisation and Association Agreement
SALW Small Arms and Light Weapons
SES Single Economic Space
SPS Sanitary and Phytosanitary Measures
TACIS Technical Aid to the Commonwealth of Independent States
TAIEX Technical Assistance and Information Exchange
TBT Technical Barriers to Trade
TCA Trade and Economic Cooperation Agreement
TCE Treaty establishing a Constitution for Europe
TEC Treaty establishing the European Communities
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TRQ Tariff Rate Quota
TSIA Trade Sustainability Impact Assessment
List of Abbreviations xvii

UN United Nations
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of the Treaties
VLAP Visa Liberalisation Action
WMD Weapons of Mass Destruction
WTO World Trade Organization
WTO GPA World Trade Organization Agreement on Government
Procurement
WTO SCM Agreement World Trade Organization Agreement on Subsidies and
Countervailing Measures
WTO TRIPS Agreement World Trade Organization Agreement on Trade-Related
Aspects of Intellectual Property Rights
Introduction

We are here to sign the Association Agreements between the European

Union and each of your countries. These are not just any other agreements
– but milestones in the history of our relations and for Europe as a whole.
In Kiev and elsewhere, people gave their lives for this closer link to the
European Union. We will not forget them.

This statement of the former President of the European Council H. Van

Rompuy was made on 27 June 2014 at the signing ceremony of the bilateral
Association Agreements (AAs) between the European Union (EU) and
Ukraine, Moldova and Georgia.1 These ambitious AAs will establish a new far-
reaching and comprehensive legal framework between the EU and these three
countries. Significantly, the EU-Ukraine Association Agreement (hereinafter:
the ‘EU-Ukraine AA’ or ‘AA’) has become one of the most anticipated and con-
troversial international agreements ever signed by the EU. There are several
legal and political reasons that explain why this agreement is such a hot topic.
On the one hand, it was the refusal of the Government of Ukraine in
November 2013 to sign the EU-Ukraine AA that sparked a historic chain of
events that had an impact not only on the domestic political scene in Ukraine
but also on the security, stability and peace in Europe. The February 2014 (Euro)
Maidan demonstrations in Kiev, during which hundreds of thousands of
Ukrainians went to the streets and demanded the signature of the AA and
closer European integration, led after violent repression against the protestors
to the dismissal of President Victor Yanukovych and the establishment of a
new pro-European government and president. In addition, the Maidan revolu-
tion triggered a political and military conflict in Eastern Ukraine, including
Russia’s annexation of Crimea. Moreover, due to Russia’s role in this conflict,
EU-Russia relations have reached rock bottom and both parties adopted (eco-
nomic) sanctions against each other.
On the other hand, from a legal point of view, the EU-Ukraine AA is consid-
ered to be “the most ambitious agreement the European Union has ever offered
to a non-Member State, […] opening the most ambitious external relationship
ever developed with the [EU]”.2 A cursory reading of the agreement, counting

1 H. Van Rompuy, ‘Statement at the signing ceremony of the Association Agreements with
Georgia, Republic of Moldova and Ukraine’, Brussels, 27 June 2014, EUCO 137/14.
2 H. Van Rompuy, ‘Remarks by President of the European Council Herman Van Rompuy at the
press conference of the Eastern Partnership Summit in Vilnius’, 29 November 2013; H. Van
Rompuy, ibid.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004298651_002

2 Introduction

around 2,140 pages in the Official Journal including 46 annexes, 3 protocols and
a joint declaration, already reveals that it is unprecedented both in terms of
scope and level of detail.3 It is a comprehensive framework agreement cover-
ing the entire spectrum of EU-Ukraine relations. Hence, it includes provisions
dealing with the whole array of EU activities, including economic cooperation,
cooperation and convergence in the field of common foreign and security
policy (CFSP) as well as cooperation in the area of freedom, security and jus-
tice (AFSJ). Of particular significance is the Deep and Comprehensive Free
Trade Area (DCFTA). This free trade area, which is an integral part of the
EU-Ukraine AA, covers substantially all trade between the EU and Ukraine and
aims at the highest possible degree of liberalisation by including legally bind-
ing legislative approximation commitments which must lead to “Ukraine’s
gradual integration in the EU Internal Market”.4
The EU-Ukraine AA was ratified during an unprecedented synchronised
session by both the European Parliament and the Verkhovna Rada on 16
September 2014.5 Because it is a mixed agreement, it still has to be ratified by
all the EU Member States before it can enter into force. The agreement is since
1 November 2014 partially provisionally applied, however, as part of the ongo-
ing de-escalation process of the crisis in Ukraine, it was decided during a trilat-
eral meeting between the EU, Russia and Ukraine on 12 September 2014 to
delay the provisional application of the DCFTA until 31 December 2015.6 Until
this date, the EU will continue to apply autonomous trade preferences to
Ukraine, which in effect open the EU market to Ukraine for trade in goods
unilaterally, as envisaged in the DCFTA.
The EU-Ukraine AA essentially has the objective to establish a unique form
of political association and economic integration between Ukraine and the
EU. This fits in the broader policy framework of the EU’s European
Neighbourhood Policy (ENP). This EU-driven initiative was launched in 2004
in the light of the ‘big bang’ enlargement with the Central and East European
Countries (CEECs) and Malta and Cyprus. A new policy was deemed necessary
at that time to cope with the new neighbours that are not eligible for EU
Membership or for those neighbours who (currently) do not have a prospect

3 Association Agreement between the European Union and its Member States, of the one part,
and Ukraine of the other part (OJ, 2014, L 161).
4 Art. 1(d) EU-Ukraine AA.
5 European Parliament, ‘European Parliament ratifies EU-Ukraine Association Agreement’,
press release, 16 September 2014.
6 European Commission, ‘Joint Ministerial Statement on the Implementation of the EU-­
Ukraine AA/DCFTA’, 12 September 2014, STATEMENT/14/276.
Introduction 3

on EU accession. The ENP does not only incorporate its ‘new’ eastern neigh-
bours and the countries of the southern Caucasus, but also the southern
Mediterranean countries.7 Within the ENP, a specific eastern dimension was
established when the EU launched, together with Armenia, Azerbaijan,
Belarus, Georgia, Moldova and Ukraine, the Eastern Partnership (EaP) at a
high-level summit in Prague in May 2009.
The EU stressed from the outset that “the ENP remains distinct from the
process of EU enlargement”.8 By explicitly separating the ENP from the enlarge-
ment process, the EU tries to temper the hope of several ENP partners which
could see the ENP as a ‘stepping stone’ towards EU Membership. This is espe-
cially relevant for those EaP partners which are eligible for EU Membership
pursuant to Article 49 TEU and who have already expressed their ambition to
join the EU. For example, after the Maidan revolution, during which “people
gave their lives for [a] closer link to the European Union”, the new Ukrainian
Government explicitly proclaimed its EU Membership aspirations.9
The limitations to the EU’s ability and political will to further enlarge made
the quest for an alternative to EU Membership in the framework of the ENP
and EaP crucial. The new generation of AAs and DCFTAs with the EaP partners
(hereinafter: ‘the EaP AAs’) aims to address this challenge. The EU-Ukraine AA
must provide for a new legal framework to associate and integrate Ukraine into
the EU, however, without aiming at EU accession. Therefore, this research will
argue that this new generation of EaP AAs aims to establish a new and unique
form of EU integration without membership.
The (economic) integration objectives of the EU-Ukraine AA are clearly
enshrined in the agreement. Its first article states that:

7 The ENP partners are: Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan,
Lebanon, Libya, Moldova, Morocco, Occupied Palestinian Territory, Syria, Tunisia and
Ukraine.
8 European Commission, ‘Communication from the Commission to the Council and
the European Parliament on Strengthening the European Neighbourhood Policy’, COM
(2006) 726 final, 4 December 2006, p. 2.
9 For example, Ukrainian President Poroshenko stated at the signing ceremony of the
EU-Ukraine AA that “[b]y signing the agreement with the EU, Ukraine, as a European State,
sharing common values of democracy and the rule of law, is underlining its sovereign choice
in favour of future membership in the EU in accordance with Article 49 of the EU Treaty. The
Association Agreement is considered by Ukraine as an instrument of comprehensive prepa-
ration to the achievement of this goal” (‘Speech of the President at the ceremony of signing
the Association Agreement between Ukraine and the European Union’, Official Website of the
President of Ukraine, 27 June 2014).
4 Introduction

[t]he aim of this Association [is] to establish conditions for enhanced

economic and trade relations leading towards Ukraine’s gradual integra-
tion in the EU Internal Market […].10

The key instrument of the AA, and especially of its trade part (i.e. the DCFTA),
to achieve Ukraine’s integration into the EU Internal Market is the inclusion
of several provisions which oblige Ukraine to apply, implement or incorpo-
rate in its domestic legal order a predetermined selection of EU acquis.
Therefore, this agreement can be labelled as an ‘EU integration agreement’.11
This term is used to refer to a limited group of international agreements con-
cluded by the EU that oblige a third country to apply or implement a selec-
tion of EU legislation. The last two decades the EU has concluded several
bilateral and multilateral non-pre-accession agreements that integrate non-
EU Member States, to a certain extent, into a section of the EU Internal
Market by obliging those countries to apply parts of the EU acquis. However,
EU integration agreements such as the EU-Ukraine AA face several chal-
lenges. For example, how do legal acts, adopted and applied by the EU, which
has developed its own legal order of international law,12 survive transposition
into legal systems of third countries? How is the uniform interpretation and
application of the EU law guaranteed and how do these agreements deal with
an ever developing EU acquis?
Therefore, the main research question of this work is to analyse how and to
what extent the EU-Ukraine AA and DCFTA is a new legal instrument that inte-
grates Ukraine into the EU. Before further specifying the research questions
and objectives of this book (2), a brief introduction on the EU-Ukraine AA’s
genesis and place in the EU’s neighbourhood relations is provided (1).

1 The EU-Ukraine AA and the Union’s Neighbourhood Relations:

An Introduction

With the signing of the three EaP AAs, a new chapter was opened in the EU’s
‘neighbourhood’ relations. Parallel with its process of enlargement towards

10 Art. 1(d) EU-Ukraine AA (emphasis added).

11 M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union
Europeénne’, in C. Blumann (ed.) Les frontiers de l’Union Européenne (Bruxelles, Bruylant,
2013), pp. 152–191.
12 ECJ, Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v.
Netherlands Inland Revenu Administration, [1963], ECR 1, para. 12.
Introduction 5

Turkey13 and the Western Balkans,14 the EU has developed a dense and com-
plex network of legal relations with its European and non-European neigh-
bours which resulted in a fascinating but complex “jigsaw puzzle” of legal
regimes.15
The most developed framework for relations between the EU and non-EU
(neighbouring) countries is the European Economic Area (EEA), which entered
into force on 1 January 1994.16 Through the EEA, the members of the European
Free Trade Area (EFTA) – with the notable exception of Switzerland – have a
closer legal relationship with the EU than any other third country. As it will be
analysed further on in more detail, the EEA Agreement allows the three EFTA
countries to participate in the Internal Market without being or becoming an
EU Member State. The agreement not only extends the application of a very
large part of the EU internal market acquis on the four freedoms (i.e. free move-
ment of goods, persons, services and capital) but also covers “flanking and
horizontal policies”. In addition, it established a unique institutional frame-
work that guarantees the effectiveness and implementation of the EEA and
ensures the “homogeneity” of the EEA market. Therefore, the EFTA-3 countries

13 Turkey has already signed in 1963 an association agreement with the European Economic
Community (hereinafter: “the Ankara Agreement”) which aims to “facilitate the acces-
sion of Turkey to the Community at a later date” and which is still today the legal back-
bone for the EU-Turkey relationship (for text, see: OJ, 1973, C 113/2). Turkey has become a
“candidate State” since 1999 and accession negotiations started in 2005, however, they are
proceeding at a slow pace. For analysis, see M. Maresceau, ‘Turkey: a candidate state des-
tined to join the Union’, in N.N. Shuibhne, L.W. Gormly (eds.) From single market to eco-
nomic Union, essays in memory of John A. Usher (Oxford University Press, Oxford, 2012),
pp. 315–340.
14 The Western Balkan countries have received a clear membership perspective as these
countries have become candidate or potential candidate countries in the framework of
the Stabilization and Association Process and have concluded bilateral Stabilization and
Association Agreements (SAAs) with the Union (For the text of the SAAs, see: OJ, 2004,
L 84/13 (Macedonia); OJ, 2010, L 108/3 (Montenegro); OJ, 2005, L 26/3 (Croatia); OJ, 2009,
L 107/166 (Albania); OJ, 2010, L 108/3 (Serbia). Accession negotiations were launched with
Serbia and Montenegro and Croatia was the first Western Balkan country that joined the
EU on 1 July 2013. For analysis, see A. Lazowski, S. Blockmans, ‘Between dream and reality:
challenges to the legal rapprochement of the Western Balkans’, in P. Van Elsuwege, R.
Petrov (eds.), Legislative Approximation and Application of EU Law in the Eastern
Neighbourhood of the European Union. Towards a Common Regulatory Space? (Oxon,
Routledge, 2014), pp. 108–134.
15 A. Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without
Membership in the European Union’, Common Market Law Review 45, 2008, p. 1436.
16 Agreement on the European Economic Area (OJ, 1994, L 1/3).
6 Introduction

are considered as the most integrated neighbouring countries of the EU.

Despite the fact that Switzerland rejected the EEA model of integration and
EU Membership, the country “is economically more integrated within the
[…] EU than many of the EU’s own Member States”17 through the conclusion of
a patchwork of sectoral agreements with the EU.18 Another interesting but com-
plex relationship is the one the EU established with the different micro-States,
being Andorra, Liechtenstein, San Marino, Monaco and the Vatican State.19
A framework for EU neighbourhood relations that is of particular relevance
to this research is the ENP because the EU-Ukraine AA was developed in this
policy. As noted above, the ENP was established in 2004 in the light of the
accession of the CEECs. The aim was to avoid the emergence of new dividing
lines between the enlarged EU and the (new) neighbours. The ENP was
first outlined by the European Commission in its 2003 “Wider Europe” Com­
munication20 and was further developed by several other Communications,
based on the broad objectives set out by the (European) Council. It builds fur-
ther on the existing bilateral relations between the EU and the partner coun-
tries, i.e. on the one hand, the Partnership and Cooperation Agreements (PCAs),
concluded during the nineties with most of the former Soviet Republics

17 L. Goetschel, ‘Switzerland and European Integration: Change Through Distance’, European

Foreign Affairs Review 8, 2003, p. 313.
18 Important examples are the agreement on the free movement of persons (OJ, 2002, L
114/6), the air transport agreement (OJ, 2002, L 114/73), the agreement on taxation of sav-
ings income (OJ, 2004, L 385/30) and the agreements on Swiss association with the Dublin
and Schengen acquis (OJ, 2008, L 53/5; OJ, 2008, L 53/42). For analysis see M. Maresceau,
‘EU-Switzerland: quo vadis?’, Georgia Journal of International and Comparative Law (39),
2012, pp. 727–755.
19 Liechtenstein can be considered as the most integrated micro-State because it is as an
EFTA participant the only micro-State which is a member of the EEA and because it
joined the Schengen area in December 2011. In contrast, the Union’s relations with
Andorra, Monaco and San Marino are governed by a number of agreements, severing
selective areas of the EU acquis and policies. The most important ones are the agreements
establishing a customs union with Andorra and San Marino, the bilateral monetary agree-
ments on the micro-State’s use of the Euro and the bilateral agreements on taxation of
savings income. For an overview and analysis, see European Commission, ‘EU Relations
with the Principality of Andorra, the Principality of Monaco and the Republic of San
Marino. Options for Closer Integration with the EU’, COM(2012)680 final, 8 November
2013; M. Maresceau, ‘The relations between the EU and Andorra, San Marino and Monaco’,
in A. Dashwood and M. Maresceau (eds.) Law and Practice of EU External Relations.
Salient Features of a Changing Landscape (Cambridge University Press, Cambridge, 2008),
pp. 270–308.
20 European Commission, ‘Wider Europe-Neighbourhood: a New Framework for Relations
with our Eastern and Southern Neighbours’, COM(2003) 104 final, 11 March 2003.
Introduction 7

and,21 on the other hand, the Euro-Mediterranean Association Agreements

(EMAAs),22 launched after the November 1995 Barcelona Declaration on the
Euro-Mediterranean Partnership.23
The ENP pursues a dozen of objectives but the most important ones can be
summarised as promoting “stability, security and prosperity”, mainly by using
instruments and methodologies which are inspired by the EU’s (pre-)accession
policy such as conditionality, monitoring and differentiation.24 The ENP is fur-
ther enriched with regional and multilateral co-operation initiatives of which
the most important ones are, regarding the southern ENP partners, the Union
for the Mediterranean (the former Euro-Mediterranean Partnership or
Barcelona Process) and the 2011 ‘Partnership for Democracy and Shared
Prosperity’ and, regarding the eastern ENP partners, the Eastern Partnership
(EaP), which was launched in Prague in May 2009. The EaP is an integral part
of the ENP but establishes an ‘eastern’ dimension in the ENP with the aim “to
accelerate political association and further economic integration” between the
European Union and the EaP partners.25
Contrary to the southern Mediterranean neighbours, several EaP partners
such as Moldova and Ukraine can be considered as ‘European’ states – as con-
firmed in the preamble of their EaP AAs (cf. infra) –, and are therefore eligible
for EU Membership pursuant to Article 49 TEU.26 However, this is no ­guarantee

21 For the text of the PCAs, see: OJ, 1998, L 49/3 (Ukraine); OJ, 1997, L 327/97 (Russia);
OJ, 1998, L 181/3 (Moldova); OJ, 1999, L196/48 (Kyrgyz Republic); OJ, 1999, L 196/3
(Kazakhstan); OJ, 1999, L 229/3 (Uzbekistan); OJ, 1999, L 205/3 (Georgia); OJ, 1999, L 246/3
(Azerbaijan); OJ, 1999, L 293/3 (Armenia); OJ, 2009, L 35/3 (Tajikistan).
22 For the text of the EMAAs, see: OJ, 1997, L 187/3 (PLO); OJ, 1997, L 97/2 (Tunisia); OJ, 2000,
L 70/2 (Morocco); OJ, 2000, L 147/3 (Israel); OJ, 2002, L 129/3 (Jordan); OJ, 2004, L 304/39
(Egypt); OJ, 2005, L 265/2 (Algeria); OJ, 2006, L 143/2 (Lebanon).
23 Russia, however, decided not to participate in the ENP and preferred a different bilateral
strategy, based on the ‘Common Spaces’ and the Partnership for Modernisation. The legal
framework of EU-Russia relations and the envisaged ‘New Agreement’ with Russia will be
further discussed in Chapter 6.2.
24 For a clear overview of the objectives, methodologies and instruments of the ENP,
see: M. Cremona, ‘The European Neighbourhood Policy. More than a Partnership?’ in
M. Cremona (ed.) Developments in EU External Relation Law (Oxford University Press,
Oxford, 2008), pp. 244–299.
25 European Commission, ‘Eastern Partnership’, COM (2008) 823 final, 3 December 2008.
26 On the geographical criterion of Article 49 TEU, see K. Inglis, Evolving Practice in EU
Enlargement: with case studies in agri-food and environment law (Martinus Nijhoff
Publishers, Leiden/Boston, 2010), p. 40; P. Van Elsuwege, From Soviet Republics to EU
Member States. A Legal and Political Assessment of the Baltic States’ Accession to the
European Union (Martinus Nijhoff Publishers, Leiden/Boston, 2008), pp. 170–171.
8 Introduction

for admission because ‘European’ states with EU Membership aspirations still

have to fulfill the political and economic conditions laid down in the
‘Copenhagen Criteria’. Moreover, the Union is under no legal obligation to
admit an applicant. As noted above, the Commission stressed that “the ENP
remains distinct from the process of EU enlargement” in order to avoid that
the ENP would be perceived as a pre-accession instrument. However, the
Commission added that “for European ENP partners, the ENP does not in any
way prejudge the possible future development of their relationship with the
EU”.27 Former Commissioner for External Relations and the ENP Ferrero-
Waldner summarised this policy clearly: “[the ENP] is not an enlargement
policy. It does not close any doors to European countries that may at some
point wish to apply for membership, but it does not provide a specific acces-
sion prospect either”.28
Thus, the EU envisaged a new legal instrument to establish an ambitious
and privileged political and economic relationship with the ENP partners.29
The first Commission Communication on the ENP contained the vague objec-
tive to offer the ENP partners “a stake in the EU’s Internal Market” and further
integration and liberalisation to promote the free movement of the four free-
doms.30 These objectives were further developed towards the ambition to con-
clude a new type of ambitious bilateral association agreements including deep
and comprehensive free trade areas (DCFTAs). These DCFTAs must go beyond
traditional FTAs – which mainly address tariffs and quotas for trade in goods
– by covering substantially all trade in goods and services, addressing non-­
tariff barriers and containing legally binding commitments on legislative
approximation which will contribute to the gradual integration of the partner
countries into to the EU Internal Market.31

27 European Commission, ‘Communication from the Commission to the Council and

the European Parliament on Strengthening the European Neighbourhood Policy’, COM
(2006) 726 final, 4 December 2006, p. 2.
28 B. Ferrero-Waldner, ‘Press Conference to launch first seven Action Plans under the ENP’,
9 December 2004.
29 Cremona notes that integration is not in itself an EU objective for the ENP, but only
an instrument to achieve the ENP objectives (i.e. security, stability and prosperity)
(M. Cremona, ‘The European Neighbourhood Policy as a Framework for Modernization’,
in F. Maiani, R. Petrov and E. Mouliarova (eds.) European Integration without EU
Membership: Models, Experiences, Perspectives, EUI Working Papers, 2009/10, p. 6).
30 European Commission, ‘Wider Europe-Neighbourhood: A New Framework for Relations
with our Eastern and Southern Neighbours’, COM (2003) 104 final, 11 March 2003, p. 10.
31 European Commission, ‘Eastern Partnership’, COM (2008) 823 final, 3 December 2008,
p. 4.
Introduction 9

At the heart of the EU-Ukraine AA, especially of the DCFTA, is the obligation
on Ukraine to apply, implement or incorporate in its domestic legal order a pre-
determined selection of EU acquis. It is clear that legislative approximation as
foreseen in the EU-Ukraine AA/DCFTA is not an objective on its own but is an
instrument to achieve economic integration. The key logic behind this legisla-
tive approximation process is to tackle non-tariff barriers, to develop a strong
and reliable legal environment for business and investment and to create a com-
mon legal space which allows Ukraine to integrate (partially) into the EU Internal
Market. These binding approximation commitments make the EU-Ukraine AA
an EU integration agreement. As it will be clarified further on, ‘EU integration
agreements’ is a theoretical legal concept that refers to a group of interna-
tional agreements concluded by the EU that oblige a third country to apply,
implement or incorporate in its domestic legal order a predetermined selection
of EU acquis. The obligation on Ukraine to approximate to a selection of EU
legislation also relates to another crucial feature of the EU-Ukraine AA and
DCFTA, i.e. market access conditionality. This implies that in several areas of
the DCFTA, Ukraine will only be granted (additional) access to a specific section
of the EU Internal Market if the EU determines, after a strict monitoring proce-
dure, that Ukraine has implemented its legislative approximation commitments.
It has to be mentioned that the objective of political association and e­ conomic
integration was especially revolutionary for the EaP neighbours as the current
PCAs do not contain a FTA.32 The EMAAs with the southern Mediterranean
neighbours are already association agreements based on Article 217 TFEU
and provide for detailed provisions on the establishment of a ‘standard’ FTA.
Therefore, political association and gradual economic integration into the EU
Internal Market through the conclusion of a new generation of AAs and DCFTAs
was first offered between 2007 and 2009 to the eastern neighbours in the frame-
work of the EaP. Only in a later stage, mainly as a response to the Arab Spring,
DCFTAs were also offered to several Mediterranean ENP partners.33

32 However, the PCAs with Russia, Ukraine and Moldova contain an “evolutionary clause”
(cf. infra).
33 The DCFTAs were offered to the EaP partners in 2009 (Joint Declaration of the Prague
Eastern Partnership Summit, Prague, 7 May 2009, 8435/09 (Presse 78), para. 2). In June
2011, the Council invited the Commission to submit recommendations for negotiating
directives for DCFTAs with selected Southern Mediterranean partners (Council
Conclusions, 3101st Council Meeting, Foreign Affairs, Luxembourg, 20 June 2011, 11824/11
para. 5) and approved negotiating directives for DCFTAs with Morocco, Jordan, Egypt and
Tunisia in December 2011 (European Union, ‘The EU’s response to the “Arab Spring”: The
State-of-Play after Two Years’, Brussels, 8 February 2013, A 70/13). These envisaged
Mediterranean DCFTAs will be further analysed in Chapter 12.5.
10 Introduction

The legal backbone to establish economic integration in the framework of

the ENP and the EaP will not only be realised through the bilateral AAs and
DCFTAs. The EU has concluded, or is negotiating, bilateral and multilateral
sectoral integration agreements with its neighbours. These sectoral integration
agreements are developed outside the ENP framework but overlap with its
objectives as they integrate several ENP partners into a specific sector of the
EU Internal Market on the basis of binding legislative approximation commit-
ments.34 Important examples are the 2006 Energy Community Treaty (ECT),
concluded between the EU and the countries of the Western Balkans, and
which now also includes two ENP partners (i.e. Ukraine and Moldova),35
and the bilateral aviation agreements concluded with several ENP partners that
aim to integrate the partner countries in the broader EU aviation market.36
Finally, it should be noted that a strict ‘economic’ reading of the ENP inte-
gration objectives would not entirely capture this policy. In the framework of
the ENP, integration has besides a trade-related and economic dimension also
a broader political dimension.37 With regard to the EU’s ambition to share
“everything but institutions”, one should also consider, inter alia, the EU’s pro-
motion of its key democratic values to the partner countries and several ele-
ments of cooperation within the areas of Common Foreign and Security Policy
(CFSP) and Freedom Security and Justice (AFSJ), including the mobility of
persons and workers.

2 Research Objectives and (Academic) Relevance

The key objective of this book is to analyse how, and to what extent, the
EU-Ukraine AA is a new legal instrument that integrates a third country (i.e.
Ukraine) into the EU.

34 S. Blockmans, B. Van Vooren, ‘Revitalizing the European ‘Neighbourhood Economic

Community’: The Case for Legally Binding Sectoral Multilateralism’, European Foreign
Affairs Review 17(4), 2012, p. 579.
35 For text, see: OJ, 2006, L 198/18.
36 Bilateral aviation agreements have been concluded with the following ENP partners:
Morocco, Israel, Jordan, Georgia and Moldova. An aviation agreement with Ukraine has
been initialled in 2013 but is not yet signed. These agreements will be further analysed in
Chapter 13.
37 M. Cremona, ‘The European Neighbourhood Policy’, in: A. Ott, E. Vos (eds.) Fifty years of
European Integration. Foundations and Perspectives (The Hague, T.M.C. Asser Press, 2009),
p. 238.
Introduction 11

New association agreements have been signed in the framework of the EaP
with Ukraine, Moldova and Georgia. From this set of ‘Eastern Partnership
Association Agreements’ (hereinafter: the ‘EaP AAs’), the focus in this contri-
bution will be on the EU-Ukraine AA for several reasons. The first – most
­obvious – reason is the simple fact that at the start of this research, the
EU-Ukraine AA was the only EaP AA that was being negotiated. Only in
the final phase of the research period of this work, the two other EaP AAs with
Georgia and Moldova were initialled and made public. Because the EU-Ukraine
AA was the first EaP AA that was being negotiated, it was a pioneer agreement
in the ENP and a template for the other EaP AAs.38 The focus will therefore be
on the EU-Ukraine AA. Nevertheless, the two other EaP AAs are also incorpo-
rated in the analysis as the main differences and resemblances between these
three agreements will be explored.
The second element that makes Ukraine a unique subject for analysis is the
country’s EU Membership ambition and its current turbulent relationship
with the Union. Already in the early nineties, Ukraine’s political leaders
expressed, not always in a clear and consistent way, their ambition to upgrade
their relations with the EU on the basis of association and even accession.
Especially after the 2004 Orange Revolution, when the pro-European Viktor
Yushchenko came to power, many observers believed that the EU could not
continue to decline Ukraine’s EU Membership aspirations after the demon-
stration of support for European values and integration. After the election of
Viktor Yanukovych as President in 2012, EU accession ambitions were tem-
pered. The Yanukovych administration initially declared that the relations
with the EU remained a priority for Ukraine and even finished the negotiations
on the EU-Ukraine AA. However, the Ukrainian Government decided on the
eve of the November 2013 Vilnius EaP Summit – where it was expected that
the agreement would be signed – to “suspend” the preparations for concluding
the EU-Ukraine AA.39 After the ‘Maidan revolution’, the new pro-European
Government and President of Ukraine unambiguously declared Ukraine’s
ambition to apply, in the longer term, for EU Membership.40 Evidently, these

38 For example, the Council explicitly stated that certain aspects of the EU-Ukraine AA “can
serve as a model for other ENP partners in the future” (Council Conclusions on
Strengthening the ENP, 19 June 2007, 11016/07).
39 Ukrainian Government, ‘Government adopted resolution on suspension of preparation
to conclude Association Agreement with EU’, press release, 21 November 2013.
40 See for example P. Poroshenko, ‘Speech of the President of Ukraine at the ceremony of
signing the Association Agreement between Ukraine and the European Union’, Press
office of the President of Ukraine, 27 June 2014.
12 Introduction

historic events, including the current conflict in Eastern Ukraine, shed a new
light on the Union’s policies towards Ukraine and on the question of the final-
ité of the EU-Ukraine relationship. A key element in this debate is whether
Ukraine should be offered a ‘European’ perspective. Because the EU has, for
the moment, no intention to bind itself to any concrete membership commit-
ments towards Ukraine, it has even become more important to define a model
for ‘EU integration without membership’. In this view, it is crucial to analyse
to what extent the EU-Ukraine AA offers a legal instrument to reach this
objective.
Thirdly, Ukraine is a key partner of the EU in the ENP and the EaP. From a
(geo)political point of view, it is obvious that Ukraine’s position between the
EU and Russia and its role as a transit-country for Russian gas is crucial for
the EU. This geostrategic importance is today well illustrated by the conflict in
Eastern Ukraine. Moreover, from a trade and economic perspective, Ukraine is
also an important country in the ENP and EaP. It is by far the largest trade
partner of the EU in the EaP. Among the EaP countries, Ukraine was in 2014 the
leading destination for EU exports (52% of total EU exports to the EaP coun-
tries) and the leading source of EU imports (42% of total EU imports from the
EaP countries).41 Conversely, the EU is the largest trade partner of Ukraine in
the world (around 30% of Ukraine’s total trade).42 However, Ukraine’s impact
on the overall EU trade relations has to be nuanced as the country is only the
25th trade partner of EU in the world, representing around 1% of the Union’s
total external trade.43 Moreover, the EU’s trade relations with the entire group
of ENP countries only represents around 7% of the Union’s external trade (5%
for the Mediterranean partners and 2% for the EaP partners).44
The final reason why this work will focus on the EU-Ukraine AA is because
Ukraine is a unique example of a country that is involved in two regional eco-
nomic integration processes. On the one hand, Ukraine has signed the AA,
including a DCFTA, with the EU while, on the other hand, it has been involved
in several integration initiatives in the post-Soviet area with Russia.45 The lat-
ter has, in addition to (geo-)political concerns, several trade-related objec-
tions against the AA and has pressured Ukraine not to sign and implement

41 European Commission, ‘Implementation of the European Neighbourhood Policy –

Statistics’, COM (2015)77 final, 25 March 2015.
42 Ibid.
43 Ibid.
44 Ibid.
45 Z., Kembayev, Legal Aspects of the Regional Integration Processes in the Post-Soviet Area
(Springer, Verlag Berlin Heidelberg, 2010).
Introduction 13

the agreement. This situation raises questions to what extent Ukraine can
integrate with both the EU and Russia’s regional integration initiatives in the
post-Soviet area and on the impact of the DCFTA on Ukraine-Russia trade
relations.46
Thus, a crucial question is how, and to what extent, the EU-Ukraine AA and
DCFTA will integrate Ukraine into the EU and create a new framework for ‘EU
integration without membership’. Although initially the EEA was on several
occasions put forward by the European Commission as a blueprint for eco-
nomic integration with the ENP partners,47 it is already clear from this intro-
duction that the EU-Ukraine AA and DCFTA will not integrate Ukraine as ‘deep
and comprehensive’ in the EU Internal Market as the EEA Agreement inte-
grates the EFTA-3 in the EU Internal Market on the basis of “a homogeneous
European Economic Area”.48 However, the EU-Ukraine AA deserves a more
nuanced and detailed analysis than the mere observation that it is ‘less ambi-
tious than the EEA’.
In order to analyse the EU-Ukraine AA and the EU’s sectoral agreements
with Ukraine, a theoretical framework is needed. This contribution will anal-
yse the EU-Ukraine AA by relying on the theoretical concept of ‘EU integration
agreements’. In this view, Part I of this book will first develop a clear definition
and criteria for this legal concept. These criteria will then serve as a tool to
analyse and evaluate the relevant integration agreements concluded with
Ukraine such as the EU-Ukraine AA and the sectoral integration agreements
(i.e. the ECT and the EU-Ukraine aviation agreement). Moreover, this Part will
identify the challenges that integration agreements may face, which conse-
quently have to be taken into account when analysing the relevant EU-Ukraine
(integration) agreements. EU integration agreements are a heterogeneous
group of agreements which share one or more features and vary from ‘basic’
integration agreements to ‘developed’ integration agreements. A brief over-
view of the existing EU integration agreements enables us to compare the
EU-Ukraine AA with other integration agreements concluded by the EU.
Thereafter, the research will focus on the EU-Ukraine AA. Part II will analyse
the legal framework of the EU-Ukraine relationship ‘from partnership and
cooperation towards association’. In order to understand the new EU-Ukraine
AA and DCFTA, it is necessary to first evaluate its predecessor, i.e. the

46 European Commission, ‘Joint Ministerial Statement on the Implementation of the

EU-Ukraine AA/DCFTA’, 12 September 2014, STATEMENT/14/276.
47 European Commission, op. cit., footnote 20, p. 15.
48 For this argument, see for example: C. Hillion, ‘Integrating an outsider. An EU perspective
on relations with Norway’, Europautredningen Rapport 16, August 2011, p. 11.
14 Introduction

EU-Ukraine PCA, and the policy framework in which this agreement is embed-
ded, i.e. the ENP and EaP (Chapter 5). This brief analysis will focus on the con-
tents and historical background of the PCA and the ‘integration without
membership’ objectives and instruments of the ENP and the EaP (e.g. the
EU-Ukraine Action Plan and Association Agenda). Then, the legal and political
hurdles towards the signing and conclusion of the EU-Ukraine AA will be ana-
lysed (Chapter 6). This chapter will not only discuss the difficult negotiation
process and different procedural steps for the conclusion of the AA (i.e. initial-
ling, signing and provisional application) (6.1) but covers also the impact of the
EU-Ukraine AA on the legal framework of the EU-Ukraine-Russia triangular
relationship (6.2). Specific attention is devoted to Ukraine’s integration process
in the post-Soviet area (6.2.1), Russia’s trade-related retaliation measures
against the AA and DCFTA (6.2.2) and the EU-Ukraine-Russia trilateral discus-
sions on the DCFTA (6.2.3). It is also explored if the new envisaged legal frame-
work for EU-Russia (trade) relations can reconcile the EU’s and Russia’s
regional economic integration initiatives towards Ukraine (6.2.4).
Then, the contents of the Association Agreement (non-DCFTA part) will be
scrutinised (Chapter 7). The focus will be on the legal basis (7.1) and ‘integra-
tion without membership’ objectives of the agreement (7.2), its ‘comprehen-
sive character’ (7.3) – including the CFSP and AFSJ dimension – and the new
forms of ‘enhanced conditionality’ (7.4).
Part III will analyse the EU-Ukraine DCFTA, which is an integral part of
the EU-Ukraine AA. Two key questions are addressed. First, to what extent
is the DCFTA different from other FTAs, concluded by the EU? For example,
what are the novelties concerning dispute settlement, legislative approxima-
tion and market access? Which areas are excluded from the scope of the
DCFTA? The second issue which will be explored is the ‘integration’ character
of the DCFTA. Does the DCFTA actually integrate Ukraine into sections of the
EU Internal Market and can it be considered as an EU integration agreement?
For this analysis, the criteria developed in Part I on EU integration agreements
will have to be taken into account. For example, how is Ukraine’s integration
into a section of the Internal Market linked with the obligation to apply, imple-
ment or incorporate in its domestic legal order a predetermined selection of
EU acquis (i.e. market access conditionality)? How is the uniform interpreta-
tion and application of the EU law guaranteed? Is there a role foreseen for the
Court of Justice (ECJ) and its case-law? Does the DCFTA dispute settlement
mechanism pose challenges for the autonomy of the EU legal order? Which
procedures apply in case of non-implementation?
First, the concept of a “deep” and “comprehensive” FTA (Chapter 8) and
the ‘traditional’ scope of the DCFTA – i.e. trade in goods and flanking
Introduction 15

­ easures – (Chapter 9) will be analysed. Following, the other DCFTA chapters

m
will be explored, focusing on, on the hand, the different forms of market access
conditionality and mechanisms to ensure a uniform interpretation and appli-
cation of the EU acquis and, on the other hand, the new or innovative provi-
sions in this agreement (Chapter 10). Also the ‘horizontal’ DCFTA provisions
and mechanisms will be discussed such as the dispute settlement mechanism
(DSM), including its potential impact on the autonomy of the EU legal order
(Chapter 11). Then, a general assessment of the EU-Ukraine DCFTA is pro-
vided (Chapter 12). On the basis of the previous chapters, it will be explored if
the DCFTA is: a proper legal instrument for gradual integration in the EU
Internal Market (12.1), an innovative or new EU FTA (12.2), a (too) complex and
costly agreement (12.4) and a potential blueprint for other EU ‘neighbourhood’
(integration) agreements (12.5). Also the differences between the Ukraine
DCFTA and the Moldova and Georgia DCFTAs will be discussed (12.3). Finally,
the integration dimension of the sectoral integration agreements concluded
with Ukraine (i.e. the ECT and the aviation agreement) will be analysed and
compared with the DCFTA (Chapter 13).
In addition to EU integration agreements, two groups of EU ‘neighbourhood
agreements’ will serve as a point of reference throughout the analysis of the
EU-Ukraine AA, i.e. the Stabilization and Association Agreements (SAAs) with
the Western Balkan countries and the EMAAs with the Mediterranean ENP
partners. In this context, to avoid confusion, it is important to underline the
difference between EU ‘integration’ agreements and EU ‘neighbourhood’
agreements. EU integration agreements is a theoretical concept used in this
work to refer a group of agreements concluded by the EU that oblige a third
country to apply, implement or incorporate in its domestic legal order a selec-
tion of EU legislation. The concept of EU ‘neighbourhood agreements’ covers
all the international agreements that the EU has concluded with neighbouring
countries. These two concepts do not imply two distinct groups of agreements.
Instead, EU integration agreements are a specific group of ‘neighbourhood
agreements’ as the EU has only concluded integration agreements with neigh-
bouring countries (cf. infra). However, not all neighbourhood agreements are
integration agreements because there exist numerous international agree-
ments that the EU has concluded with neighbouring countries that do not
include an obligation to apply a selection of EU acquis.
This does not imply that this work provides for a comprehensive compara-
tive analysis. Instead, specific elements of these agreements such as the legal
basis, institutional framework, provisions related to approximation to the EU
acquis and case-law of the ECJ will be discussed where relevant for the analysis
of the EU-Ukraine AA. For the analysis of the EU-Ukraine DCFTA (Part III),
16 Introduction

a comparison will also be made with elements of other FTAs recently con-
cluded by the EU (e.g. EU FTAs with Korea, Colombia/Peru and Central
America). This enables us to answer the question to what extent the EU-Ukraine
AA can actually be considered as a new agreement. Moreover, although the
EU’s relations with Moldova and Georgia will not be analysed in extenso, the
key differences between the AAs with Moldova and Georgia and the EU-Ukraine
AA will be discussed.
As already indicated in this introduction, at the heart of the EU-Ukraine AA
and DCFTA is the obligation on Ukraine to approximate to a predetermined
selection of EU legislation. The exportation of the EU’s norms and values to
third (neighbouring) countries also fits in a broader academic debate on
Union’s role on the international stage and on the ability of the EU to trans-
form and democratise its neighbourhood. In this discussion, which is not a
part of this research, the EU has been attributed several labels, varying from
a “normative power”49 to a “normative hegemon”.50 The export of the Union’s
acquis to partner countries is also defined as a form of “external governance”51
or “Europeanization” of third countries.52 In this debate, often the distinction is
being made between on the one hand, the promotion of the fundamental prin-
ciples and values of the EU such as those referred to in Article 2 TEU, which is
the main focus in the research on the EU’s democracy promotion and, on the
other hand, the exportation of the Union’s Internal Market acquis to third
countries.53 The latter is closely intertwined with the concepts of market

49 I. Manners, ‘Normative Power Europe: A Contradiction in Terms? Journal of Common

Market Studies 40, 2002, pp. 235–258. For an extensive analysis of the exportation of the
acquis communautaire, see R. Petrov, Exporting the Acquis Communautaire through
European Union External Agreements, (Nomos Verlagsgesellschaft, Baden-Baden, 2011).
50 H. Haukkala, ‘A Normative Power or a Normative Hegemon? The EU and its European
Neighbourhood Policy’ (2007) EUSA 10th Biennial Conference in Montreal, Canada, 17–19
May.
51 S. Lavenex, ‘EU external Governance in Wider Europe’, Journal of European Public Policy
11(4), 2004, pp. 680–700.
52 A. Gawrich, I. Melnykovska, R. Schweickert, ‘Neighbourhood Europeanization through
ENP: The case of Ukraine’, Journal of Common Market Studies 48(5), pp. 1209–1235.
53 See for example C. Hillion, ‘Anatomy of EU norm export towards the neighbourhood’, in
P. Van Elsuwege and R. Petrov (eds.), Legislative Approximation and Application of EU Law
in the Eastern Neighbourhood of the European Union. Towards a Common Regulatory
Space? (Routledge, Oxon, 2014), pp. 13–21; R. Petrov, ‘Exporting the Acquis Communautaire
into the Legal Systems of Third Countries’, European Foreign Affairs Review 13, 2008,
pp. 33–52; R. Petrov, op. cit., footnote 49; S. Lavenex, ‘A governance perspective on the
European Neighbourhood Policy: integration beyond conditionality?’ Journal of European
Public Policy 15(6), 2008, pp. 938–955; S. Lavenex, F. Schimmelfennig, ‘EU rules beyond EU
Introduction 17

access conditionality and EU integration agreements, and will therefore be the

focus of this work.54 Accordingly, in the following chapters, the distinction will
be made between the AA’s ‘common values conditionality’ and ‘market access
conditionality’.
This book aims to contribute to the existing academic debate on the ENP
and the EU’s external and trade relations. Over the last decade, an enormous
amount of academic literature emerged on the ENP, mainly from a political-
science perspective.55 Although there is an increase in research on the legal
aspects of the ENP,56 this book will try to fill the ‘legal’ gap in this debate. Due

borders: theorizing external governance in European politics’, Journal of European Public

Policy 16(6), 2009, pp. 791–812; A. Albi, ‘The EU’s ‘External Governance’ and Legislative
Approximation by Neighbours: Challenges for the Classic Constitutional Templates’,
European Foreign Affairs Review 14, 2009, pp. 209–230 and P. Van Elsuwege and R. Petrov
(eds.), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood
of the European Union. Towards a Common Regulatory Space? (Routledge, Oxon, 2014).
54 F. Schimmelfennig and U. Sedelmeier make the difference between “democratic condi-
tionality” and “acquis conditionality” (F. Schimmelfennig, U. Sedelmeier, ‘Governance by
conditionality: EU rule transfer to the candidate countries of Central and Eastern Europe’,
Journal of European Public Policy 11(4), 2004, p. 677). However, it has to be noted that this
distinction is arbitrary because the EU’s common values, such as those enshrined in
Article 2 TEU, are also part of the EU acquis. For an overview of the academic discussion
about the context and meaning of the acquis (communautaire), see R. Petrov, op. cit. foot-
note 49, pp. 35–40.
55 See for example: J. Kelly, ‘New Wine in Old Wineskins: Promoting Political reforms
through the New European Neighbourhood Policy’, Journal of Common Market Studies
44(1), 2006, pp. 29–55; R. Dannreuther, ‘Developing the Alternative to Enlargement: The
European Neighbourhood Policy’, European Foreign Affairs Review 11, 2006, pp. 183–201;
K. Smith, ‘The outsiders; the European Neighbourhood Policy’, International Affairs 81(4),
2005, pp. 757–773; E. Barbé, E. Johansson-Nogués, ‘The EU as a modest ‘force of good’: the
European Neighbourhood Policy’, International Affairs 84 (1), 2008, pp. 81–96; S. Lavenex,
‘A governance perspective on the European Neighbourhood Policy: integration beyond
conditionality?’ Journal of European Public Policy 15(6), 2008, pp. 938–955.
56 See for example, B. Van Vooren, EU External Relations Law and the European Neighbourhood
Policy. A Paradigm for Coherence (Routledge, Oxon, 2012); N. Ghazaryan, The European
Neighbourhood Policy and the Democratic Values of the EU. A Legal Analysis (Hart
Publishing, Oxford, 2014); C. Hillion, ‘The EU’s Neighbourhood Policy towards Eastern
Europe’, in M. Maresceau, A. Dashwood, Law and Practice of EU External Relations, Salient
Features of a Changing Landscape (Cambridge University Press, Cambridge, 2008),
pp. 309–333; C. Baudenbacher, ‘The Judicial Dimension of the European Neighbourhood
Policy’, College of Europe EU Diplomacy Paper 08/2013, November 2013. For an interdisci-
plinary approach, see for example E. Lannon (ed.), The European Neighbourhood Policy’s
Challenges (P.I.E. Peter Lang, New York, 2012).
18 Introduction

to the recent character of the EU-Ukraine AA – and the EaP AAs in general –,
the (legal) academic research on this topic is currently very limited.57 In this
view, the author of this work hopes that this book can initiate the academic
debate on this new generation of association agreements and DCFTAs.
This book has mainly a legal focus. However, in EU external relations law,
and especially in the legal framework of the Union’s relations with Ukraine and
the other EaP partners, politics is never far away. This work has not the ambi-
tion to be interdisciplinary, however, in order to fully grasp the establishment
of the EU-Ukraine AA, the relevant political developments have to be taken
into account.58 Although the recent political developments in Ukraine and
their impact on EU-Russia relations are definitely historic and deserve an
extensive analysis, it has to be noted that this research does not aim to provide
a comprehensive overview of these events as this would lead us too far away
from the key research objectives of this work. Nevertheless, considering that all
these events were triggered by the EU-Ukraine AA and relate to the finalité of
the EU-Ukraine relationship, they cannot be ignored either. Therefore, these
political events and developments will only be analysed when they were – or
still are – relevant for the analysis of the EU-Ukraine AA.
Finally, it has to be noted that this work also has the ambition to be of prac-
tical use, going beyond mere academic relevance. Currently, a comprehensive
legal analysis of the EU-Ukraine AA is lacking. This is quite remarkable consid-
ering the historic events that this agreement has sparked. Moreover, it is strik-
ing that several ‘close observers’ and public officials of EU Member States or
even EU institutions have made strong statements or declarations regarding
the EU-Ukraine AA whereas it appears that several authors of these statements
did – or do – not always know its exact contents. This is to a large extent the
result of the new, comprehensive and complex character of this agreement. In
addition, opponents of this agreement have often deliberately misrepresented

57 See for example: G. Van der Loo, P. Van Elsuwege, R. Petrov, ‘The EU-Ukraine Association
Agreement: Assessment of an Innovative Legal Instrument’, EUI Working Paper, LAW
2014/09; G. Van der Loo, ‘The EU-Ukraine Deep and Comprehensive Free Trade Area: a
coherent mechanism for legislative approximation?’ in P. Van Elsuwege, R. Petrov (eds.)
Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the
European Union. Towards a Common Regulatory Space? (Routledge, Oxon, 2014), pp. 63–88;
C. Hillion, ‘Mapping-Out the New Contractual Relations between the European Union
and Its Neighbours: Learning from the EU-Ukraine ‘Enhanced Agreement’, European
Foreign Affairs Review 12, 2007, pp. 169–182; R. Petrov, ‘Legal Basis and Scope of the new
EU-Ukraine Enhanced Agreement. Is there any room for further speculation?’, EUI
Working Paper, 2008/17.
58 W. Twining, Law in Context. Enlarging a Discipline (Clarendon Press, Oxford, 1997).
Introduction 19

its contents in order to manipulate public support for the agreement. A clear,
comprehensive but critical legal analysis of this agreement will therefore not
only serve academic purposes but can also be a useful instrument for policy
makers who are dealing with this topic. Moreover, the results of this research
can also be relevant for other neighbouring countries engaged in a revision of
their bilateral relationship with the EU. For example, the analysis of several
principles and mechanisms of the EU-Ukraine DCFTA could be useful during
the negotiations on the DCFTAs that the EU aims to conclude with Morocco,
Jordan, Egypt and Tunisia.59

59 European Commission, ‘The EU’s response to the “Arab Spring”: The State-of-Play after
Two Years’, 8 February 2013, A 70/13.
 Part 1
Integration Agreements Concluded by the EU:
Criteria and Overview

∵
As indicated in the introduction, the EU-Ukraine AA and several sectoral
agreements concluded (or initialled) with Ukraine can be qualified as EU inte-
gration agreements because they have the objective to integrate Ukraine partly
into the EU by extending – a section of – the EU (Internal Market) acquis to
this country. However, in order to fully grasp the notion of the concept of an
EU integration agreement, clear criteria have to be formulated. The following
chapter will therefore develop four criteria which will allow us to define and
evaluate integration agreements, including the aforementioned agreements
with Ukraine. Moreover, because the different chapters of the EU-Ukraine AA,
especially those of the DCFTA, contain different integration objectives and
instruments, these criteria can be applied to each of these chapters. In addi-
tion, a brief overview of the existing EU integration agreements is provided.
Such an overview is a practical tool to compare the relevant EU-Ukraine agree-
ments with the other EU integration agreements. This Part will first provide
some general remarks on the legal concept of ‘EU integration agreements’.
 chapter 1

‘Integration Agreements’ Concluded by the EU:

A Useful but Tricky Legal Concept

As pointed out above, it is the objective of the ENP and the EaP to accelerate
Ukraine’s (and the other EaP partners’) integration into the EU Internal Market.
This ambition is clearly enshrined in the EU-Ukraine AA which states in its
first Article that: “[t]he aim of this Association [is] to establish conditions for
enhanced economic and trade relations leading towards Ukraine’s gradual
integration in the EU Internal Market […]”.60 Moreover, also the preamble con-
tains several references to the (economic) integration objectives of this agree-
ment. For example, it states that the parties are desirous of achieving economic
integration with the EU Internal Market through the establishment of the
DCFTA. As it will be illustrated further on, the key instrument of the DCFTAs,
and the EaP AAs as such, to achieve the partner countries’ integration into the
EU Internal Market is the obligation to apply or incorporate in their domestic
legal order a selection of EU acquis. Therefore, these agreements can be
labelled as ‘EU integration agreements’.61 The last two decades the EU has con-
cluded several bilateral and multilateral non-pre-accession agreements that
integrate non-EU Member States, to a certain extent, into the EU Internal
Market by obliging those countries to apply parts of the EU acquis. Although
the categorisation of a body of international agreements concluded by the EU
as ‘integration agreements’ is a useful exercise, this term is hazardous and can
be misleading.
First, the EU Treaties do not include a provision that enables a third country
to (partially) integrate into the EU. Consequently, they do not provide for a
legal basis to conclude such ‘integration agreements’, contrary to other types of
agreements such as trade agreements (Article 207(3) TFEU), association agree-
ments (Article 217 TFEU), co-operation agreements (Article 212(3) TFEU) or
development agreements (Article 209(2)). A third State can only fully integrate
into the EU through the accession process of Article 49 TEU, which makes par-
tial accession to the EU impossible. Although some EU Member States are

60 Art. 1(d) EU-Ukraine AA.

61 M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union
Europeénne’, in C. Blumann (ed.) Les frontiers de l’Union Européenne (Bruxelles, Bruylant,
2013), pp. 152–191.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004298651_003

24 chapter 1

more integrated than others due to the number of opt-outs to several EU poli-
cies and the procedure for enhanced cooperation,62 leading to what is called
an ‘Europe à la carte’ or a ‘multi-speed EU’, there is no legal basis for a ‘partial’
EU Membership.63 A notable exception is however Cyprus, where a geographi-
cal limit on the application of full integration applies.64 The most ambitious
relationship with third countries, foreseen in the EU Treaties, is the conclusion
of an association agreement on the basis of Article 217 TFEU. This does not
imply that association agreements always have the objective to ‘integrate’ the
other contracting party into the EU. As Peers noted: “a particular association
agreement might even contain fewer integration obligations than a partner-
ship or co-operation agreement”.65 Article 217 TFEU allows the Union to con-
clude agreements with third countries establishing an association “involving
reciprocal rights and obligations, common action and special procedures”, but
avoids any reference to the term ‘integration’. This provision was indeed used
as a legal basis for several agreements with ‘integration’ objectives such as the
EEA. However, there are several association agreements that are not pre-­
accession agreements66 or do not have a clear ‘integration’ objective.67 Former
Commission President Walter Hallstein even stated that “association can be
anything between full membership minus 1% and a trade and co-operation
agreement plus 1%”.68 It is true that according to the ECJ, association agree-
ments create special, privileged links with a non-member country “which
must, at least to a certain extent, take part in the Community system”.69 However,
it is difficult to see how a third associated State could “take part in the
Community [now Union] system” as even in the most advanced formats of

62 Art. 20 TEU.
63 Although this statement was made in another context, the ECJ ruled that “it is not possi-
ble for the European Communities to comprise a greater number of Member States than
the number of States between which they were established” (Case C-95/97, Région
Wallonne v. Commission of the European Communities, [1997], ECR I-1787, para. 6).
64 M. Maresceau, “Integration oriented elements in bilateral agreements concluded by the
EU with third States: a few examples” (2010)), to consult at: http://www.europarl.cy/
ressource/static/files/ADDRESS_PROF_MARESCEAU_20100624.pdf.
65 S. Peers, ‘EC Frameworks of International Relations: Co-operation, Partnership and
Association’, in A. Dashwood, C. Hillion, (eds.), The General Law of EC External Relations
(Sweet&Maxwell, London, 2000), p. 176.
66 For example the EMAAs with the Mediterranean ENP partners.
67 See for example the 2002 EU-Chile Association Agreement (OJ, 2002, L 352/1).
68 W. Hallstein, cited in: D. Phinnemore, Association: Stepping-Stone or Alternative to EU
membership? (Sheffield Academic Press, Sheffield, 1999), p. 23.
69 ECJ, Case 12/86, Meryem Demirel v Stadt Schwäbisch Gmünd, [1987], ECR I-3719, para. 9.
Emphasis added.
‘Integration Agreements’ Concluded by the EU 25

association agreements, such as those preparing for accession, associated can-

didate States do not really take part in the Union system since these countries
are never involved in the decision-making process at EU level.70 Therefore, the
term ‘integration agreement’ does not suggest an agreement concluded by
the EU which would allow a third country to become, to a limited extent, an EU
Member State.
A second challenging feature of this concept is the fact that several legal
scholars refer to the process of integration of third (neighbouring) countries
into the EU (Internal Market) on the basis of bilateral agreements, however,
without offering a clear definition of this process.71 Notable exceptions are
Lazowski and Maresceau who both formulate a definition and criteria for this
phenomenon. The former does not use the term ‘integration agreements’ but
refers to models of “enhanced bilateralism” or “enhanced multilateralism” to
define international agreements concluded by the EU which impose on a third
country the obligation to apply selected pieces of EU acquis.72 According to
this author, these agreements go beyond the mere approximation of laws and
imply the clear-cut obligation to apply parts of the acquis.73 The notion of
‘application’ differs according to Lazowski from non-binding ‘best endeavour’
approximation clauses which are used by the EU in various other agreements
with third countries.74 Maresceau applies a similar strict criterion to qualify
an agreement concluded by the EU as an “integration agreement”.75 He also
notes that the mere objective of an agreement to establish a form of legal

70 M. Maresceau, Bilateral Agreements concluded by the European Community (The Hague

Academy of International Law, Recueil des cours, vol. 309, Martinus Nijhoff Publishers,
Leiden/Boston, 2006) p. 317.
71 For example, in a recent comprehensive study, K. Pieters examines to what extent the
Mediterranean ENP countries are integrated into the EU Internal Market and to what
extent the EU Internal Market principles contribute to the Euro-Med integration process.
However, a clear definition of “integration into the EU Internal Market” is not provided in
this work (K. Pieters, The Integration of the Mediterranean Neighbours into the EU Internal
Market, (T.M.C. Asser Press, The Hague, 2010)).
72 A. Lazowksi, ‘With but Without you… The Europeanisation of Legal Orders of the
Neighbouring Countries’, in A. Ott, E. Vos (eds.), Fifty years of European Integration:
Foundations and Perspectives, (The Hague, T.M.C. Asser Press, 2009), p. 248; A. Lazowski,
‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership
in the European Union’, Common Market Law Review 45, 2008, pp. 1433–1458.
73 Ibid.
74 A. Lazowski, ‘Box of Chocolates Integration: The European Economic Area and the Swiss
Model Revisited’, in S. Blockmans, S. Prechal (eds.), Reconciling the Deepening and the
Widening of the European Union, (The Hague, T.M.C. Asser Press, 2008), p. 89.
75 Maresceau uses in French the term “un accord d’intégration”, M. Maresceau, op. cit.,
­footnote 61.
26 chapter 1

approximation between the contracting parties is not sufficient to be classified

as an integration agreement. He argues that an agreement with a third State is
only an “integration agreement” if it incorporates a part of the EU acquis which
is “interpreted and applied” as if the third State is part of the EU.76 Therefore,
an integration agreement transposes a part of the EU acquis in the internal
legal order of a third country in order to realize a partial integration in certain
domains and policies of the Union.77 A different conceptualization of this legal
phenomenon is provided for by Rapoport. Regarding international agreements
concluded with third (non-candidate) countries envisaging a kind of integra-
tion into the EU, this author makes a difference between agreements provid-
ing for “un alignement normatif visant l’établissement d’‘espace juridiques
­intégrés’” and agreements aiming at “un rapprochement normatif”.78 Rapoport
argues that the former group of agreements, which is similar to the notion
of EU integration agreements developed in this work, requires “l’existence
d’une obligation permanente de reprise de l’acquis par les partenaires et […]
l’instauration de mécanismes d’homogénéisation de l’interprétation des normes
régissant les espaces juridiques intégrés”.79
Although the ECJ never used the term ‘integration agreement’, its formula-
tion of the objectives of the EEA and the European Common Aviation Area
(ECAA) agreement in Opinion 1/00 can serve as an alternative definition for
this type of agreements. According to the Court, these agreements aim “to
extend the acquis communautaire to new States, by implementing in a larger
geographical area rules which are essentially those of Community law”.80 By
this definition, the Court notes that integration agreements do not apply the
EU law in third countries, but a selection of rules which is textually identical to
the EU acquis.
Although a limited number of legal scholars identify the obligation to apply
a selection of EU acquis as a key feature of an EU integration agreement, addi-
tional criteria need to be developed and specified. The concept of an EU inte-
gration agreement does not refer to a specific well-defined group of identical

76 Maresceau uses the terms “identifieé et répertorieé”, ibid, p. 153.

77 As Maresceau notes: “la reprise d’une partie de l’acquis de l’Union en tant que tel dans
leur ordre juridique”, ibid, p. 153.
78 C. Rapoport, Les partenariats entre l’Union européenne et les Etats tiers européens. Etude de
la contribution de l’Union européenne à la structure juridique de l’espace européen (Bruylant,
Bruxelles, 2011), pp. 79–320 (emphasis added).
79 Ibid, p. 160.
80 ECJ, Opinion 1/00, Proposed agreement between the European Community and non-
Member states on the establishment of a European Common Aviation Area, [2002], ECR
I-3493, para. 3.
‘Integration Agreements’ Concluded by the EU 27

or similar agreements but more to a heterogeneous group of agreements which

share one or more integration element. Therefore, by defining several criteria
for the qualification of an EU integration agreement, it is possible to place
these agreements on a scale which varies from ‘basic’ integration agreements
(i.e. agreements which fulfill only one criterion) to ‘developed’ integration
agreements (i.e. agreements which fulfil all the criteria). Moreover, because
several agreements concluded by the EU, such as the EU-Ukraine AA, include
various chapters with different integration elements, it is even possible to
place several chapters of the same integration agreements on such a scale.
 chapter 2

The conditio sine qua non: The Obligation to Apply,

Implement or Incorporate a Predetermined
Selection of EU acquis

The first criterion to qualify an international agreement concluded by the EU

as an integration agreement is the one which has already been put forward in
the literature, mentioned above. The conditio sine qua non for an integration
agreement is the (i) obligation for the partner country to (ii) apply, implement
or incorporate in its domestic legal order a predetermined selection of EU
acquis.
As already observed, such an obligation is stricter than the best endeavours
approximation clauses, incorporated in several international agreements con-
cluded by the EU.81 Such clauses do not contain a formal legal commitment as
they only prescribe an obligation to act without a requirement to achieve par-
ticular results or a sanction in the case the approximation obligation is not
fulfilled.82 The former Europe Agreements (EAs), the SAAs, the PCAs and the
EMAAs all contain similar but not identical best endeavours approximation
clauses. According to these provisions in the former EAs, the CEECs “shall
endeavour to ensure that [their] legislation will be gradually made compatible
with that of the Community”.83 This formulation was copied in the first para-
graph of the approximation clauses in the PCAs with the post-Soviet coun-
tries.84 Also the approximation clauses in the SAAs contain a similar reference

81 Several authors use the term “harmonisation” instead of approximation, see for example:
A. Evans, ‘Voluntary Harmonisation in Integration between the European Community
and Eastern Europe’, European Law Review 22, 1997, pp. 201–220.
82 G. Van der Loo, P. Van Elsuwege, ‘Competing Paths of Regional Economic Integration in
the Post-Soviet Space: Legal and Political Dilemmas for Ukraine’, Review of Central and
East European Law 37, 2012, p. 425.
83 See for example Art. 69 EA Lithuania (OJ, 1998, L 51/3) and Art. 69 EA Romania (OJ, 1994,
L 357/2). The formulation of this clause in the EAs with Poland and Hungary are slightly differ-
ent. Art. 68 EA Poland states for example that Poland “shall use its best endeavours to ensure
that its legislation is compatible with the Community legislation” (OJ, 1993, L 348/2). For a
detailed analysis of the approximation clauses in the Europe Agreements, see: A. Lazowski,
‘Approximation of Laws’, in A. Ott, K. Inglis (eds.), Handbook on European Enlargement. A com-
mentary on the Enlargement Process (T.M.C Asser Press, The Hague, 2002), pp. 631–638.
84 For example, see: Art. 40(1) PCA Tajikistan and Art. 55(1) PCA Russia.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004298651_004

The conditio sine qua non 29

as they state that the Western Balkan countries “shall endeavour to ensure that
[their] existing laws and future legislation shall be gradually made compatible
with the Community acquis”.85 The nature of the approximation clauses in the
EMAAs is even softer as they only state that “cooperation shall be aimed at
helping [the Mediterranean partner] to bring its legislation closer to that of
the Community”86 or because there is no asymmetry in the approximation
clause. The latter means that the approximation process, established by these
provisions, is not a one-way street whereby the partner country makes the
commitment to approximate with the Union’s acquis, but is more based on an
equal partnership. For example the approximation clauses in the EMAAs with
Egypt, Israel, Jordan and Lebanon state that “the Parties shall use their best
endeavours to approximate their respective laws in order to facilitate the imple-
mentation of this Agreement”.87 Evidently, in practice, it is difficult to imagine
that the Union makes a commitment through these provisions to bring its
acquis closer to the legislation of these Mediterranean countries.
Thus, the mere inclusion of such an approximation clause is not sufficient to
qualify an agreement as an EU integration agreement. First, due to the voluntary
nature of these provisions, they only impose on obligation to act and not to
achieve a result. However, as noted by several authors, notable exceptions are the
approximation clauses included in agreements with EU candidate countries.88
The pre-accession process develops the voluntary nature of these clauses into a
firm obligation to approximate considering that approximation with the EU
acquis is one of the pre-accession Copenhagen Criteria. Therefore, in the light of
the pre-accession strategy, the approximation clauses in the SAAs obtained a
binding character, contrary to those included in the EMAAs and the PCAs.

85 For example, see Art. 70(1) SAA Albania and Art. 68(1) SAA Macedonia. For an analysis of
the legislative approximation process of the Western Balkan countries, see A. Lazowski,
S. Blockmans, ‘Between dream and reality: challenges to the legal rapprochement of the
Western Balkans”, in P. Van Elsuwege and R. Petrov (eds.), Legislative Approximation and
Application of EU Law in the Eastern Neighbourhood of the European Union. Towards a
Common Regulatory Space? (Oxon, Routledge, 2014), pp. 108–134. For a comparative analy-
sis between the SAAs and the EAs, see D. Phinnemore, ‘Stabilisation and Association
Agreements: Europe Agreements for the Western Balkans?’, European Foreign Affairs
Review 8(1), 2003, pp. 77–103.
86 For example, see: Art. 52 EMAA Morocco and Art. 56 EMAA Algeria (emphasis added).
87 Art. 48 EMAA Egypt, Art. 69 EMAA Jordan, Art. 49 EMAA Lebanon and Art. 55 EMAA
Israel (emphasis added).
88 E. Piontek, ‘Central and Eastern European Countries in Preparation for Membership in
the European Union- A Polish Perspective’, Yearbook of Polish European Studies (1), 1997,
p. 73; A. Lazowski, op. cit., footnote 83, p. 634.
30 chapter 2

Second, these approximation clauses do not define a clear selection of EU legis-

lation and a timeframe for legislative approximation. At the most, they define
broad ‘priority areas’ of EU Internal Market legislation which should offer the part-
ner country some guidance in their process of approximation to the relevant EU
acquis.89 Consequently, they do not provide mechanisms to ensure a uniform inter-
pretation and application of the approximated EU acquis. Although this approxi-
mation process can bring the domestic legislation of a third country closer to the
EU acquis, it is not inconceivable that these approximation clauses can lead to an
inaccurate approximation of the domestic legislation to the EU legislation.
Therefore, in order to qualify as an EU integration agreement, an agreement
must go beyond these standard approximation clauses by obliging (i.e. no best
endeavours commitment) a third country to effectively apply a predetermined
selection of EU acquis, or to transpose or implement it in its domestic legal
order.90 However, it has to be stressed that even EU integration agreements do
not lead to formal application of EU law in the third country. Integration agree-
ments imply that a set of legislation textually identical to corresponding EU
acquis is applied in the domestic legal order of a third country or in its rela-
tions with the Union. Even when domestic legislation of a third country is
identical to EU acquis, “it remains within the boundaries of the national legal
order” and EU law does not apply internally.91 Even the EEA, which is consid-
ered by the European Commission “the most far-reaching and comprehensive
instrument to extend the EU’s Internal Market to third countries”,92 does not
apply formally EU law in the participating EFTA countries but “incorporates in
the law governing the EEA provisions that are textually identical to the corre-
sponding provisions of Community [now Union] law”.93 It is only through the

89 See for example Art. 55(2) EU-Russia PCA. The ‘priority areas’ for legislative approximation
in the SAAs are slightly more detailed than those in the PCAs and EMAAs. See for example
Art. 70(3) SAA Albania. For analysis, see A. Lazowski, S. Blockmans, op. cit., footnote 85.
90 On the ‘obligatory’ nature of legislative approximation in EU international agreements,
see C. Rapoport, op. cit., footnote 78, p. 160.
91 A. Lazowksi, ‘With but Without you… The Europeanisation of Legal Orders of the
Neighbouring Countries’, in A. Ott, E. Vos (eds.), Fifty years of European Integration:
Foundations and Perspectives, (The Hague, T.M.C. Asser Press, 2009), p. 249. The author notes
that approximation can lead to application in case of the pre-accession strategy because from
the moment a country is an official EU Member State, it is obliged to apply the EU acquis.
92 European Commission, ‘A review of the functioning of the European Economic Area’,
SWD(2012) 425 final, 7 December 2012, p. 3.
93 ECJ, Opinion 1/92, Draft agreement between the Community, on the one hand, and the
countries of the European Free Trade Association, on the other, relating to the creation of
the European Economic Area, [1992], ECR I-2821, para. 2.
The conditio sine qua non 31

homogeneity principle and related procedures in the EEA Agreement that the
parties have spelled out the objective to apply the same EU rules and give them
the same interpretation throughout the whole EEA (cf. infra). Thus, even if
integration agreements extend “rules which are essentially those of [Union]
law”,94 integration agreements do not apply EU law in a third state.
In EU integration agreements, the obligatory character of the extension of
EU acquis can take many forms. For example, the last two decades, the EU has
concluded several agreements which state that the partner country must
“apply” a selected part of EU acquis. An evident example is the 1991 EEC-San
Marino Agreement on Cooperation and Custom Union which states that this
micro-State “shall apply” the common commercial policy acquis to third
­countries.95 Also non-customs union agreements can contain an obligation
to “apply” a part of the EU acquis such as the EU-Monaco Agreement on
the application of certain Union acts.96 Variations on this obligation can be
found in other integration agreements. For example, the EU-Switzerland Air
Transport Agreement states that the relevant acquis incorporated in its Annex
“shall apply”, but makes a reservation that this is only “to the extent that [the
acquis] concerns air transport or matters directly related to air transport as
mentioned in [the Annex]”.97 The agreements with Switzerland, Iceland and
Norway on their association with the Dublin and Schengen acquis stress the
importance of the implementation of the relevant acquis as it must be “imple-
mented and applied” by these third countries.98 The EU-Switzerland a­ greement

94 ECJ, Opinion 1/00, op. cit., footnote 80.

95 Art. 7(1) Agreement on Cooperation and Customs Union between the European Economic
Community and the Republic of San Marino (OJ, 2002, L 84/43). This agreement only
entered into force in 2002, however, an Interim Agreement on trade and trade-related
matters was concluded (OJ, 1992, L 359/13).
96 Art. 1 and 2(1) Agreement between the European Community and the Principality of
Monaco on the application of certain Community acts on the territory of the Principality
of Monaco (OJ, 2003, L 332/42).
97 Art. 2 Agreement between the European Community and the Swiss Confederation on Air
Transport (OJ, 2002, L 114/73).
98 Art. 2(1) Agreement concluded by the Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the latters’ association with the imple-
mentation, application and development of the Schengen acquis (OJ, 1999, L 176/36); Art.
2(1) Agreement between the European Union, the European Community and the Swiss
Confederation on the Swiss Confederation’s association with the implementation, appli-
cation and development of the Schengen acquis (OJ, 2008, L 53/42) (emphasis added).
The agreements on association with the Dublin acquis contain a slightly different formu-
lation as they state that the relevant acquis “shall be implemented by [the Contracting
Party] and applied in [its] relations with the Member States” (Art. 1 Agreement between
32 chapter 2

on the free movement of persons states that the contracting parties “shall take
all measures necessary to ensure that rights and obligations equivalent to
those contained in the legal acts of the European Community to which refer-
ence is made are applied in relations between them”.99
According to another group of agreements such as the 1990 EU-Andorra
Customs Union Agreement, third countries must “adopt” (French: “adopter”, Dutch:
“aannemen”) instead of “apply” (French: “appliquer”, Dutch: “toepassen”) a selected
part of EU acquis.100 It is not clear from a reading of these agreements whether
there is a difference between the “application” and “adoption” of a piece of EU
acquis, particularly because no definition of these concepts is provided in these
agreements. As it seems that these two terms refer to the same process,101 a more
consistent use would be beneficial for the legal clarity of these agreements.
In addition, several other EU integration agreements include similar but not
identical obligations regarding a selected body of EU acquis, which further
complicates the conceptualisation of this legal phenomenon. Some agree-
ments contain provisions that focus on the “incorporation” or “transposition”
of the acquis in the domestic legal order. For example, the ECAA and the EEA
contain a provision which clarifies how the annexed EU acquis “shall be bind-
ing upon the Contracting Parties and be, or be made, part of their internal legal
order”.102 The Monetary Agreements with Andorra, the Vatican State and San

the European Community and the Swiss Confederation concerning the criteria and
mechanisms for establishing the State responsible for examining a request for asylum
lodged in a Member State or in Switzerland (OJ, 2008, L 53/5); Art. 1(1) Agreement between
the European Community and the Republic of Iceland and the Kingdom of Norway con-
cerning the criteria and mechanisms for establishing the State responsible for examining
a request for asylum lodged in a Member State or in Iceland or Norway (OJ, 2001, L 93/40)).
99 Art. 16(1) Agreement between the European Community and its Members States, of the
one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ,
2002, L 114/6) (emphasis added).
100 Art. 7(1) Agreement between the European Economic Community and the Principality of
Andorra, (OJ, 1990, L 374/16). Also Art. 3 of Decision 1/2003 of the EU-Andorra Joint
Committee states that Andorra must “adopt” the relevant customs acquis and that
Andorra “shall take the measures necessary for the implementation […] of provisions
based on [specific Council Regulations]” (Art. 3, Decision 1/2003 of the EU-Andorra Joint
Committee (OJ, 2003, L 253/3)).
101 For example, the corresponding provision (Art. 7(1)) included in the agreements with
Andorra and San Marino on the establishment of a customs union uses the term to
“adopt” in the case of Andorra and the term to “apply” in the case of San Marino.
102 Art. 3 Multilateral Agreement between the European Community and its Member States,
the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic
of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the
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Title: Notre Coeur; or, A Woman's Pastime: A Novel

Author: Guy de Maupassant

Release date: November 18, 2015 [eBook #50477]

Most recently updated: October 22, 2024

Language: English

Credits: Produced by Dagny and Marc D'Hooghe (Images

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*** START OF THE PROJECT GUTENBERG EBOOK NOTRE COEUR;

OR, A WOMAN'S PASTIME: A NOVEL ***
NOTRE CŒUR
OR
A WOMAN'S PASTIME
A NOVEL

By
 GUY DE MAUPASSANT
SAINT DUNSTAN SOCIETY

AKRON, OHIO

1903

CONTENTS

GUY DE MAUPASSANT - Critical Preface: Paul Bourget

INTRODUCTION - Robert Arnot, M. A.
 NOTRE CŒUR

CHAPTER I.
THE INTRODUCTION

CHAPTER II.
"WILL YOU WALK INTO MY PARLOR?"

CHAPTER III.
THE THORNS OF THE ROSE

CHAPTER IV.
THE BENEFIT OF CHANGE OF SCENE

CHAPTER V.
CONSPIRACY

CHAPTER VI.
QUESTIONINGS

CHAPTER VII.
DEPRESSION

CHAPTER VIII.
NEW HOPES

CHAPTER IX.
DISILLUSION

CHAPTER X.
FLIGHT

CHAPTER XI.
LONELINESS

CHAPTER XII.
CONSOLATION

CHAPTER XIII.
MARIOLLE COPIES MME. DE BURNE
 ADDENDA

THE OLIVE GROVE

REVENGE
AN OLD MAID
COMPLICATION
FORGIVENESS
THE WHITE WOLF

ILLUSTRATIONS

HENRI RENE GUY DE MAUPASSANT

"THEY WERE ALONE ... SHE WAS WEEPING"
 GUY DE MAUPASSANT

Of the French writers of romance of the latter part of the nineteenth

century no one made a reputation as quickly as did Guy de
Maupassant. Not one has preserved that reputation with more ease,
not only during life, but in death. None so completely hides his
personality in his glory. In an epoch of the utmost publicity, in which
the most insignificant deeds of a celebrated man are spied, recorded,
and commented on, the author of "Boule de Suif," of "Pierre et Jean,"
of "Notre Cœur," found a way of effacing his personality in his work.
Of De Maupassant we know that he was born in Normandy about
1850; that he was the favorite pupil, if one may so express it, the
literary protégé, of Gustave Flaubert; that he made his début late in
1880, with a novel inserted in a small collection, published by Emile
Zola and his young friends, under the title: "The Soirées of Medan";
that subsequently he did not fail to publish stories and romances
every year up to 1891, when a disease of the brain struck him down
in the fullness of production; and that he died, finally, in 1893,
without having recovered his reason.
We know, too, that he passionately loved a strenuous physical life
and long journeys, particularly long journeys upon the sea. He owned
a little sailing yacht, named after one of his books, "Bel-Ami," in
which he used to sojourn for weeks and months. These meager
details are almost the only ones that have been gathered as food for
the curiosity of the public.
I leave the legendary side, which is always in evidence in the case of
a celebrated man,—that gossip, for example, which avers that
Maupassant was a high liver and a worldling. The very number of his
volumes is a protest to the contrary. One could not write so large a
number of pages in so small a number of years without the virtue of
industry, a virtue incompatible with habits of dissipation. This does
not mean that the writer of these great romances had no love for
pleasure and had not tasted the world, but that for him these were
secondary things. The psychology of his work ought, then, to find an
interpretation other than that afforded by wholly false or exaggerated
anecdotes. I wish to indicate here how this work, illumined by the
three or four positive data which I have given, appears to me to
demand it.
And first, what does that anxiety to conceal his personality prove,
carried as it was to such an extreme degree? The answer rises
spontaneously in the minds of those who have studied closely the
history of literature. The absolute silence about himself, preserved by
one whose position among us was that of a Tourgenief, or of a
Mérimée, and of a Molière or a Shakespeare among the classic great,
reveals, to a person of instinct, a nervous sensibility of extreme
depth. There are many chances for an artist of his kind, however
timid, or for one who has some grief, to show the depth of his
emotion. To take up again only two of the names just cited, this was
the case with the author of "Terres Vierges," and with the writer of
"Colomba."
A somewhat minute analysis of the novels and romances of
Maupassant would suffice to demonstrate, even if we did not know
the nature of the incidents which prompted them, that he also
suffered from an excess of nervous emotionalism. Nine times out of
ten, what is the subject of these stories to which freedom of style
gives the appearance of health? A tragic episode. I cite, at random,
"Mademoiselle Fifi," "La Petite Roque," "Inutile Beauté," "Le Masque,"
"Le Horla," "L'Épreuve," "Le Champ d'Oliviers," among the novels,
and among the romances, "Une Vie," "Pierre et Jean," "Fort comme la
Mort," "Notre Cœur." His imagination aims to represent the human
being as imprisoned in a situation at once insupportable and
inevitable. The spell of this grief and trouble exerts such a power
upon the writer that he ends stories commenced in pleasantry with
some sinister drama. Let me instance "Saint-Antonin," "A Midnight
Revel," "The Little Cask," and "Old Amable." You close the book at
the end of these vigorous sketches, and feel how surely they point to
constant suffering on the part of him who executed them.
This is the leading trait in the literary physiognomy of Maupassant, as
it is the leading and most profound trait in the psychology of his
work, viz., that human life is a snare laid by nature, where joy is
always changed to misery, where noble words and the highest
professions of faith serve the lowest plans and the most cruel egoism,
where chagrin, crime, and folly are forever on hand to pursue
implacably our hopes, nullify our virtues, and annihilate our wisdom.
But this is not the whole.
Maupassant has been called a literary nihilist—but (and this is the
second trait of his singular genius) in him nihilism finds itself
coexistent with an animal energy so fresh and so intense that for a
long time it deceives the closest observer. In an eloquent discourse,
pronounced over his premature grave, Emile Zola well defined this
illusion: "We congratulated him," said he, "upon that health which
seemed unbreakable, and justly credited him with the soundest
constitution of our band, as well as with the clearest mind and the
sanest reason. It was then that this frightful thunderbolt destroyed
him."
It is not exact to say that the lofty genius of De Maupassant was that
of an absolutely sane man. We comprehend it to-day, and, on re-
reading him, we find traces everywhere of his final malady. But it is
exact to say that this wounded genius was, by a singular
circumstance, the genius of a robust man. A physiologist would
without doubt explain this anomaly by the coexistence of a nervous
lesion, light at first, with a muscular, athletic temperament. Whatever
the cause, the effect is undeniable. The skilled and dainty pessimism
of De Maupassant was accompanied by a vigor and physique very
unusual. His sensations are in turn those of a hunter and of a sailor,
who have, as the old French saying expressively puts it, "swift foot,
eagle eye," and who are attuned to all the whisperings of nature.
The only confidences that he has ever permitted his pen to tell of the
intoxication of a free, animal existence are in the opening pages of
the story entitled "Mouche," where he recalls, among the sweetest
memories of his youth, his rollicking canoe parties upon the Seine,
and in the description in "La Vie Errante" of a night spent on the sea,
—"to be alone upon the water under the sky, through a warm
night,"—in which he speaks of the happiness of those "who receive
sensations through the whole surface of their flesh, as they do
through their eyes, their mouth, their ears, and sense of smell."
His unique and too scanty collection of verses, written in early youth,
contains the two most fearless, I was going to say the most
ingenuous, paeans, perhaps, that have been written since the
Renaissance: "At the Water's Edge" (Au Bord de l'Eau) and the
"Rustic Venus" (La Venus Rustique). But here is a paganism whose
ardor, by a contrast which brings up the ever present duality of his
nature, ends in an inexpressible shiver of scorn:
"We look at each other, astonished, immovable,
And both are so pale that it makes us fear."
* * * * * * * *
"Alas! through all our senses slips life itself away."
This ending of the "Water's Edge" is less sinister than the murder and
the vision of horror which terminate the pantheistic hymn of the
"Rustic Venus." Considered as documents revealing the cast of mind
of him who composed them, these two lyrical essays are especially
significant, since they were spontaneous. They explain why De
Maupassant, in the early years of production, voluntarily chose, as
the heroes of his stories, creatures very near to primitive existence,
peasants, sailors, poachers, girls of the farm, and the source of the
vigor with which he describes these rude figures. The robustness of
his animalism permits him fully to imagine all the simple sensations of
these beings, while his pessimism, which tinges these sketches of
brutal customs with an element of delicate scorn, preserves him from
coarseness. It is this constant and involuntary antithesis which gives
unique value to those Norman scenes which have contributed so
much to his glory. It corresponds to those two contradictory
tendencies in literary art, which seek always to render life in motion
with the most intense coloring, and still to make more and more
subtle the impression of this life. How is one ambition to be satisfied
at the same time as the other, since all gain in color and movement
brings about a diminution of sensibility, and conversely? The paradox
of his constitution permitted to Maupassant this seemingly impossible
accord, aided as he was by an intellect whose influence was all
powerful upon his development—the writer I mention above, Gustave
Flaubert.
These meetings of a pupil and a master, both great, are indeed rare.
They present, in fact, some troublesome conditions, the first of which
is a profound analogy between two types of thought. There must
have been, besides, a reciprocity of affection, which does not often
obtain between a renowned senior who is growing old and an
obscure junior, whose renown is increasing. From generation to
generation, envy reascends no less than she redescends. For the
honor of French men of letters, let us add that this exceptional
phenomenon has manifested itself twice in the nineteenth century.
Mérimée, whom I have also named, received from Stendhal, at
twenty, the same benefits that Maupassant received from Flaubert.
The author of "Une Vie" and the writer of "Clara Jozul" resemble each
other, besides, in a singular and analogous circumstance. Both
achieved renown at the first blow, and by a masterpiece which they
were able to equal but never surpass. Both were misanthropes early
in life, and practised to the end the ancient advice that the disciple of
Beyle carried upon his seal: μεμνήσο απιστἔιν—"Remember to
distrust." And, at the same time, both had delicate, tender hearts
under this affectation of cynicism, both were excellent sons,
irreproachable friends, indulgent masters, and both were idolized by
their inferiors. Both were worldly, yet still loved a wanderer's life;
both joined to a constant taste for luxury an irresistible desire for
solitude. Both belonged to the extreme left of the literature of their
epoch, but kept themselves from excess and used with a judgment
marvelously sure the sounder principles of their school. They knew
how to remain lucid and classic, in taste as much as in form—
Mérimée through all the audacity of a fancy most exotic, and
Maupassant in the realism of the most varied and exact observation.
At a little distance they appear to be two patterns, identical in certain
traits, of the same family of minds, and Tourgenief, who knew and
loved the one and the other, never failed to class them as brethren.
They are separated, however, by profound differences, which perhaps
belong less to their nature than to that of the masters from whom
they received their impulses: Stendhal, so alert, so mobile, after a
youth passed in war and a ripe age spent in vagabond journeys, rich
in experiences, immediate and personal; Flaubert so poor in direct
impressions, so paralyzed by his health, by his family, by his theories
even, and so rich in reflections, for the most part solitary.
Among the theories of the anatomist of "Madame Bovary," there are
two which appear without ceasing in his Correspondence, under one
form or another, and these are the ones which are most strongly
evident in the art of De Maupassant. We now see the consequences
which were inevitable by reason of them, endowed as Maupassant
was with a double power of feeling life bitterly, and at the same time
with so much of animal force. The first theory bears upon the choice
of personages and the story of the romance, the second upon the
character of the style. The son of a physician, and brought up in the
rigors of scientific method, Flaubert believed this method to be
efficacious in art as in science. For instance, in the writing of a
romance, he seemed to be as scientific as in the development of a
history of customs, in which the essential is absolute exactness and
local color. He therefore naturally wished to make the most
scrupulous and detailed observation of the environment.
Thus is explained the immense labor in preparation which his stories
cost him—the story of "Madame Bovary," of "The Sentimental
Education," and "Bouvard and Pécuchet," documents containing as
much minutiæ as his historical stories. Beyond everything he tried to
select details that were eminently significant. Consequently he was of
the opinion that the romance writer should discard all that lessened
this significance, that is, extraordinary events and singular heroes.
The exceptional personage, it seemed to him, should be suppressed,
as should also high dramatic incident, since, produced by causes less
general, these have a range more restricted. The truly scientific
romance writer, proposing to paint a certain class, will attain his end
more effectively if he incarnate personages of the middle order, and,
consequently, paint traits common to that class. And not only middle-
class traits, but middle-class adventures.
From this point of view, examine the three great romances of the
Master from Rouen, and you will see that he has not lost sight of this
first and greatest principle of his art, any more than he has of the
second, which was that these documents should be drawn up in
prose of absolutely perfect technique. We know with what passionate
care he worked at his phrases, and how indefatigably he changed
them over and over again. Thus he satisfied that instinct of beauty
which was born of his romantic soul, while he gratified the demand of
truth which inhered from his scientific training by his minute and
scrupulous exactness.
The theory of the mean of truth on one side, as the foundation of the
subject,—"the humble truth," as he termed it at the beginning of
"Une Vie,"—and of the agonizing of beauty on the other side, in
composition, determines the whole use that Maupassant made of his
literary gifts. It helped to make more intense and more systematic
that dainty yet dangerous pessimism which in him was innate. The
middle-class personage, in wearisome society like ours, is always a
caricature, and the happenings are nearly always vulgar. When one
studies a great number of them, one finishes by looking at humanity
from the angle of disgust and despair. The philosophy of the
romances and novels of De Maupassant is so continuously and
profoundly surprising that one becomes overwhelmed by it. It
reaches limitation; it seems to deny that man is susceptible to
grandeur, or that motives of a superior order can uplift and ennoble
the soul, but it does so with a sorrow that is profound. All that
portion of the sentimental and moral world which in itself is the
highest remains closed to it.
In revenge, this philosophy finds itself in a relation cruelly exact with
the half-civilization of our day. By that I mean the poorly educated
individual who has rubbed against knowledge enough to justify a
certain egoism, but who is too poor in faculty to conceive an ideal,
and whose native grossness is corrupted beyond redemption. Under
his blouse, or under his coat—whether he calls himself Renardet, as
does the foul assassin in "Petite Roque," or Duroy, as does the sly
hero of "Bel-Ami," or Bretigny, as does the vile seducer of "Mont
Oriol," or Césaire, the son of Old Amable in the novel of that name,—
this degraded type abounds in Maupassant's stories, evoked with a
ferocity almost jovial where it meets the robustness of temperament
which I have pointed out, a ferocity which gives them a reality more
exact still because the half-civilized person is often impulsive and, in
consequence, the physical easily predominates. There, as elsewhere,
the degenerate is everywhere a degenerate who gives the impression
of being an ordinary man.
There are quantities of men of this stamp in large cities. No writer
has felt and expressed this complex temperament with more justice
than De Maupassant, and, as he was an infinitely careful observer of
milieu and landscape and all that constitutes a precise middle
distance, his novels can be considered an irrefutable record of the
social classes which he studied at a certain time and along certain
lines. The Norman peasant and the Provençal peasant, for example;
also the small officeholder, the gentleman of the provinces, the
country squire, the clubman of Paris, the journalist of the boulevard,
the doctor at the spa, the commercial artist, and, on the feminine
side, the servant girl, the working girl, the demi-grisette, the street
girl, rich or poor, the gallant lady of the city and of the provinces, and
the society woman—these are some of the figures that he has
painted at many sittings, and whom he used to such effect that the
novels and romances in which they are painted have come to be
history. Just as it is impossible to comprehend the Rome of the
Cæsars without the work of Petronius, so is it impossible to fully
comprehend the France of 1850-90 without these stories of
Maupassant. They are no more the whole image of the country than
the "Satyricon" was the whole image of Rome, but what their author
has wished to paint, he has painted to the life and with a brush that
is graphic in the extreme.
If Maupassant had only painted, in general fashion, the characters
and the phase of literature mentioned, he would not be distinguished
from other writers of the group called "naturalists." His true glory is in
the extraordinary superiority of his art. He did not invent it, and his
method is not alien to that of "Madame Bovary," but he knew how to
give it a suppleness, a variety, and a freedom which were always
wanting in Flaubert. The latter, in his best pages, is always strained.
To use the expressive metaphor of the Greek athletes, he "smells of
the oil." When one recalls that when attacked by hysteric epilepsy,
Flaubert postponed the crisis of the terrible malady by means of
sedatives, this strained atmosphere of labor—I was going to say of
stupor—which pervades his work is explained. He is an athlete, a
runner, but one who drags at his feet a terrible weight. He is in the
race only for the prize of effort, an effort of which every motion
reveals the intensity.
Maupassant, on the other hand, if he suffered from a nervous lesion,
gave no sign of it, except in his heart. His intelligence was bright and
lively, and above all, his imagination, served by senses always on the
alert, preserved for some years an astonishing freshness of direct
vision. If his art was due to Flaubert, it is no more belittling to him
than if one call Raphael an imitator of Perugini.
Like Flaubert, he excelled in composing a story, in distributing the
facts with subtle gradation, in bringing in at the end of a familiar
dialogue something startlingly dramatic; but such composition, with
him, seems easy, and while the descriptions are marvelously well
established in his stories, the reverse is true of Flaubert's, which
always appear a little veneered. Maupassant's phrasing, however
dramatic it may be, remains easy and flowing.
Maupassant always sought for large and harmonious rhythm in his
deliberate choice of terms, always chose sound, wholesome
language, with a constant care for technical beauty. Inheriting from
his master an instrument already forged, he wielded it with a surer
skill. In the quality of his style, at once so firm and clear, so gorgeous
yet so sober, so supple and so firm, he equals the writers of the
seventeenth century. His method, so deeply and simply French,
succeeds in giving an indescribable "tang" to his descriptions. If
observation from nature imprints upon his tales the strong accent of
reality, the prose in which they are shrined so conforms to the genius
of the race as to smack of the soil.
It is enough that the critics of to-day place Guy de Maupassant
among our classic writers. He has his place in the ranks of pure
French genius, with the Regniers, the La Fontaines, the Molières. And
those signs of secret ill divined everywhere under this wholesome
prose surround it for those who knew and loved him with a pathos
that is inexpressible.
Paul Bourget

INTRODUCTION

Born in the middle year of the nineteenth century, and fated

unfortunately never to see its close, Guy de Maupassant was probably
the most versatile and brilliant among the galaxy of novelists who
enriched French literature between the years 1800 and 1900. Poetry,
drama, prose of short and sustained effort, and volumes of travel and
description, each sparkling with the same minuteness of detail and
brilliancy of style, flowed from his pen during the twelve years of his
literary life.
Although his genius asserted itself in youth, he had the patience of
the true artist, spending his early manhood in cutting and polishing
the facets of his genius under the stern though paternal mentorship
of Gustave Flaubert. Not until he had attained the age of thirty did he
venture on publication, challenging criticism for the first time with a
volume of poems.
Many and various have been the judgments passed upon
Maupassant's work. But now that the perspective of time is
lengthening, enabling us to form a more deliberate and therefore a
juster, view of his complete achievement, we are driven irresistibly to
the conclusion that the force that shaped and swayed Maupassant's
prose writings was the conviction that in life there could be no phase
so noble or so mean, so honorable or so contemptible, so lofty or so
low as to be unworthy of chronicling,—no groove of human virtue or
fault, success or failure, wisdom or folly that did not possess its own
peculiar psychological aspect and therefore demanded analysis.
To this analysis Maupassant brought a facile and dramatic pen, a
penetration as searching as a probe, and a power of psychological
vision that in its minute detail, now pathetic, now ironical, in its
merciless revelation of the hidden springs of the human heart,
whether of aristocrat, bourgeois, peasant, or priest, allow one to call
him a Meissonier in words.
The school of romantic realism which was founded by Mérimée and
Balzac found its culmination in De Maupassant. He surpassed his
mentor, Flaubert, in the breadth and vividness of his work, and one of
the greatest of modern French critics has recorded the deliberate
opinion, that of all Taine's pupils Maupassant had the greatest
command of language and the most finished and incisive style.
Robust in imagination and fired with natural passion, his
psychological curiosity kept him true to human nature, while at the
same time his mental eye, when fixed upon the most ordinary phases
of human conduct, could see some new motive or aspect of things
hitherto unnoticed by the careless crowd.
It has been said by casual critics that Maupassant lacked one quality
indispensable to the production of truly artistic work, viz.: an
absolutely normal, that is, moral, point of view. The answer to this
criticism is obvious. No dissector of the gamut of human passion and
folly in all its tones could present aught that could be called new, if
ungifted with a view-point totally out of the ordinary plane. Cold and
merciless in the use of this point de vue De Maupassant undoubtedly
is, especially in such vivid depictions of love, both physical and
maternal, as we find in "L'histoire d'une fille de ferme" and "La
femme de Paul." But then the surgeon's scalpel never hesitates at
giving pain, and pain is often the road to health and ease. Some of
Maupassant's short stories are sermons more forcible than any moral
dissertation could ever be.
Of De Maupassant's sustained efforts "Une Vie" may bear the palm.
This romance has the distinction of having changed Tolstoi from an
adverse critic into a warm admirer of the author. To quote the
Russian moralist upon the book:

"'Une Vie' is a romance of the best type, and in my judgment the

greatest that has been produced by any French writer since
Victor Hugo penned 'Les Misérables.' Passing over the force and
directness of the narrative, I am struck by the intensity, the
grace, and the insight with which the writer treats the new
aspects of human nature which he finds in the life he describes."

And as if gracefully to recall a former adverse criticism, Tolstoi adds:

"I find in the book, in almost equal strength, the three cardinal
qualities essential to great work, viz: moral purpose, perfect
style, and absolute sincerity.... Maupassant is a man whose vision
has penetrated the silent depths of human life, and from that
vantage-ground interprets the struggle of humanity."

"Bel-Ami" appeared almost two years after "Une Vie," that is to say,
about 1885. Discussed and criticised as it has been, it is in reality a
satire, an indignant outburst against the corruption of society which
in the story enables an ex-soldier, devoid of conscience, honor, even
of the commonest regard for others, to gain wealth and rank. The
purport of the story is clear to those who recognize the ideas that
governed Maupassant's work, and even the hasty reader or critic, on
reading "Mont Oriol," which was published two years later and is
based on a combination of the motifs which inspired "Une Vie" and
"Bel-Ami," will reconsider former hasty judgments, and feel, too, that
beneath the triumph of evil which calls forth Maupassant's satiric
anger there lies the substratum on which all his work is founded, viz:
the persistent, ceaseless questioning of a soul unable to reconcile or
explain the contradiction between love in life and inevitable death.
Who can read in "Bel-Ami" the terribly graphic description of the
consumptive journalist's demise, his frantic clinging to life, and his
refusal to credit the slow and merciless approach of death, without
feeling that the question asked at Naishapur many centuries ago is
still waiting for the solution that is always promised but never comes?
In the romances which followed, dating from 1888 to 1890, a sort of
calm despair seems to have settled down upon De Maupassant's
attitude toward life. Psychologically acute as ever, and as perfect in
style and sincerity as before, we miss the note of anger. Fatality is the
keynote, and yet, sounding low, we detect a genuine subtone of
sorrow. Was it a prescience of 1893? So much work to be done, so
much work demanded of him, the world of Paris, in all its brilliant and
attractive phases, at his feet, and yet—inevitable, ever advancing
death, with the question of life still unanswered.
This may account for some of the strained situations we find in his
later romances. Vigorous in frame and hearty as he was, the
atmosphere of his mental processes must have been vitiated to
produce the dainty but dangerous pessimism that pervades some of
his later work. This was partly a consequence of his honesty and
partly of mental despair. He never accepted other people's views on
the questions of life. He looked into such problems for himself,
arriving at the truth, as it appeared to him, by the logic of events,
often finding evil where he wished to find good, but never
hoodwinking himself or his readers by adapting or distorting the
reality of things to suit a preconceived idea.
Maupassant was essentially a worshiper of the eternal feminine. He
was persuaded that without the continual presence of the gentler sex
man's existence would be an emotionally silent wilderness. No other
French writer has described and analyzed so minutely and
comprehensively the many and various motives and moods that
shape the conduct of a woman in life. Take for instance the
wonderfully subtle analysis of a woman's heart as wife and mother
that we find in "Une Vie." Could aught be more delicately incisive?
Sometimes in describing the apparently inexplicable conduct of a
certain woman he leads his readers to a point where a false step
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