In Copenhagen Costa will try to circumvent the unanimity hurdle for Ukraine’s EU membership

Brussels – Overcoming Hungary’s veto and really starting the process of Ukraine’s accession to the EU by circumventing the unanimity obstacle: Wednesday’s informal summit of heads of state and government (1 October) becomes an all-political test for an EU determined to keep its promises to its Ukrainian partner. The President of the European Council, Antonio Costa, will try to convince the leaders to amend the customary law to send a clear signal to Putin’s Russia about the future of Kyiv. 

Highly qualified sources assure that one of the key points in the debate over Ukraine will be precisely the possibility of changing the rules for negotiating chapters. The aim is to circumvent country vetoes, specifically the Hungarian one, and possibly attempt to change the order in which the negotiating chapters are opened. No one is committing themselves, but “if Costa had seen that there is no margin to overcome the unanimity obstacle, he would not have gone for it, so he has the perception that it might be possible,” is the thinking in Brussels. 

Of course, there are several legal issues to consider. As vague as it may be, Article 49 of the treaties governing the EU’s enlargement with the accession of other countries provides for unanimity. Still, the formula remains poorly articulated, leaving room for interpretation of the law. The European Commission has already proposed a legal revision with its March 2024 communication, in which it argues that “consideration could be given to granting the Council the power to decide by qualified majority on certain intermediate stages of the enlargement process.” The same communication argues that such a decision, moreover, would be “in line with the European Council’s request to speed up the accession process.” 

The line of the EU executive has not changed, so much so that today (29 September) the spokesman responsible for Enlargement, Guillaume Mercier, reiterated that this possibility for the Council should be explored, not only for political but also practical reasons: “When a country is blocked without objective reasons, despite fulfilling the criteria, the credibility of the whole enlargement process is at risk“, he says in relation to Ukraine’s accession process. For the European Commission, the country fulfils the criteria and deserves to have Cluster 1 opened “without delay,” as already recommended. 

Given the progress it has made, there is no reason to object, Mercier emphasises. The EU is therefore at the centre of a credibility issue, and changing habits could help. The practice of opening negotiating chapters all at once is indeed an unwritten practice. It is a custom, and custom is the unwritten source of law par excellence. Just change behaviour, then. That is what Costa plays on, and that is what the leadership summit is about. 

Ukrainian President Volodymyr Zelensky, via video link at the European Council summit [photo: imagoeconomica via European Council]

Beware, however: first of all, the process is likely to take time. Even if the legal services of the Commission and the Council were to expedite their actions, it would still take months, and in any case, appeals to the Court of Justice could not be ruled out. Secondly, the European Commission, which is the guardian of the treaties and therefore has to enforce them, downplays the change of pace: Mercier clarifies that qualified majority voting could be used to allow the opening of negotiating chapters, except to add that “the closing of negotiating chapters should continue with the unanimity of the Member States.” 

In essence, the Hungarian veto would only be shifted, but not eliminated; however, this eventuality is still useful for the EU to initiate negotiations as promised and to let Moscow know that Ukraine is now within the European sphere of influence. This is also why Costa is giving it a go. “He received no explicit ‘no’s’ from the leaders,” during his tour of the European capitals carried out to prepare for the informal summit, and this absence of resistance is considered a good omen. “The Copenhagen summit serves to better understand” what direction the EU will take, and perhaps prepare the ground for the 20–21 October summit, the formal one, where conclusions will have to be drawn.