Towards a Solution for the Ratification Conundrum of the EU-Ukraine Association Agreement?

A Decision of the EU Heads of State or Government, adopted as an annex to the 15 December 2016 European Council conclusions, should allow to proceed with the ratification process of the EU-Ukraine Association Agreement. This process had been stalled following the Dutch referendum of 6 April 2016 when over 61 % of the voters rejected the approval of the agreement in the Netherlands. Immediately after the referendum, Dutch Prime Minister Rutte announced a reflection period to study the different options to address the main concerns of the Dutch electorate while still enabling the Netherlands to ratify the agreement. The Brexit referendum delayed this exercise, and a first attempt to adopt a ‘legally binding declaration’ by 1 November 2016 failed. In the following weeks, Prime Minister Rutte threatened to terminate the ratification procedure if no acceptable solution would be found at the 15 December 2016 meeting of the European Council. After long and difficult discussions, the 28 Heads of State or Government adopted a decision addressing the Dutch concerns.

Legal Nature of the Decision

The formula of a ‘Decision of the EU Heads of State or Government, meeting within the European Council’ is not new in the EU’s legal practice. It has been used in the past in order to agree on certain guarantees for Denmark and Ireland in the wake of the negative referenda on the Treaty of Maastricht (December 1992) and the Treaty of Nice (June 2009) respectively and to decide on the location of the seats of a number of EU institutions and bodies. More recently, the “new settlement for the United Kingdom within the European Union”, adopted before the Brexit referendum in response to David Cameron’s request for a binding and irreversible new deal, also followed the same logic ...

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