Department of Political Science at the University of Cologne Jean-Monnet-Chair

Bachelor Thesis in Regional Studies East and Central Europe

Normative power European Union? EU-Ukrainian relations regarding the energy sector after the gas crisis of 2009

Supervisor: Prof. Dr. Wolfgang Wessels

Submitted by Christopher Forst Pfarrer-Kreitz-Str. 5 52372 Kreuzau C.Forst2011@googlemail.com

Cologne 2013

I Abstract
The gas crisis of 2009 has raised European doubts about the reliability of the strategically important transit country Ukraine. A further integration of Ukraine in the European energy market could decrease the probability of a new crisis. The Tymoshenko case and the lack of reforms in Ukraine have placed the EU in a dilemma. The signing of the planned Association Agreement has been stalled. Ukraine complained about a paucity of support by the Energy Community in the countrys ongoing natural gas disputes with Russia and declared that it may quit the community. This would be in contrast to Europes interest in e nergy security. The aim of this bachelors thesis is to analyze whether the EU can be seen as a normative power in its relations with Ukraine regarding the energy sector after the gas crisis of 2009 despite the dilemma mentioned above. Criteria for an ideal normative power will be developed on the basis of existing approaches, such as Ian Manners NPE approach. By analyzing official EU documents and secondary literature, this study gives an idea of the EUs approach in its relations with Ukraine regarding the energy sector. It is argued that the EU is not acting as a purely normative power but also driven by its economic and strategic interests.

Key words
Role theory; Normative Power Europe; Market Power Europe; Strategic Power Europe; EU-Ukrainian relations; Association Agreement; Deep and Comprehensive Free Trade Area; Energy Community; Tymoshenko case; Human rights; Democracy promotion; Energy Security

II Table of content
List of Abbreviations.................................................................................................III 1 Introduction.............................................................................................................. 1 1.1 Relevance ........................................................................................................ 2 1.2 State of research ............................................................................................... 4 1.3 Guiding research question and structure of the study ........................................ 5 2 Theoretical Framework and Methodology .............................................................. 8 2.1 Role theory and foreign policy ......................................................................... 8 2.2 Definition of a normative power ....................................................................... 9 2.3 Methodology and case selection ..................................................................... 13 3 EU-Ukrainian relations regarding the energy sector since 2009 .......................... 14 3.1 Association Agreement .................................................................................. 14 3.1.1 The EU as a normative power ................................................................. 16 3.1.2 The EU as a non-normative power .......................................................... 20 3.1.3 Preliminary findings ................................................................................ 26 3.2 Energy Community ........................................................................................ 28 3.2.1 The EU as a normative power ................................................................. 29 3.2.2 The EU as a non-normative power .......................................................... 31 3.2.3 Preliminary findings ................................................................................ 34 4 Conclusion .............................................................................................................. 36 References ................................................................................................................ 40

III List of Abbreviations

AA. CPE CFSP.. DCFTA.. EC.. ECSEE... EEC ECHR..... ENP.... ESDP.. ESS. EU... IMF IR... NPE MPE... RUE... SPE........ UDHR

Association Agreement Civilian Power Europe Common Foreign and Security Policy Deep and Comprehensive Free Trade Area Energy Community Energy Community on South East Europe European Energy Community European Convention on Human Rights and Fundamental Freedom European Neighbourhood Policy European Security and Defense Policy European Security Strategy European Union International Monetary Fund International Relations Normative Power Europe Market Power Europe RosUkrEnergo Strategic Power Europe Universal Declaration of Human Rights

Introduction

The Ukrainian-Russian gas dispute of 2009 can be regarded as a caesura in the trilateral relations of Ukraine, Russia and the European Union (EU). 1 As Gnther Oettinger, EU Energy Commissioner, put it: The power game on our Eastern borders has come as a wake-up call!2 This paper will focus on the development of the Ukrainian-European relations since the agreement following the crisis which marked the transition to a new era. Because of the complexity of the processes in January 2009, it is necessary to give a brief outline of the events in this introduction. The gas dispute in 2009 attracted the attention of the European media and the European public at large. After the Orange Revolution in 2004 this event caused the political situation in Ukraine to be perceived as a remarkably important factor in the context of the debate on the future of the EU for the second time within only a few years. In contrast to the first gas dispute in 2006, this time parts of the EU really had to struggle to overcome the consequences of the disruption of the gas flow. This had various reasons, among them there were the cold winter of 2009 and the length of the disruption.3 Russia cut the gas supply on 1 January 2009. On the same day Naftogaz Ukrainy, the national oil and gas company of Ukraine, guaranteed to fulfill all its obligations on transit, but at the same time the company made clear that among other things it could not define the conditions for settlement for transit services. 4 Four days later Russia accused Ukraine of having stolen 65.3 million cubic metres of gas. Ukraine declared that it concerned only technical gas and that the taking of technical gas necessary for the operation of Ukrainian compressors was not explicitly prohibited in the existing gas contract, but even explicitly allowed in an intergovernmental memorandum attached to the transit contract signed in 2002. All this led to the disruption of the gas flow to the EU. All in all the gas crisis took 19 days. On 20 January the gas supply started again.
1

Cf. Westphal, Kirsten (2009). Russisches Erdgas, ukrainische Rhren, europische Versorgungssicherheit: Lehren und Konsequenzen aus dem Gasstreit 2009, in: Stiftung Wissenschaft und Politik (ed.). SWP-Studien, Berlin, p. 5. 2 Oettinger, Gnther H. (2010). Europeanising EU Energy Policy, Key note speech at the Final Ceremony of the ZEI Class of 2010, in: ZEI Discussion Paper, No. 202, July 2010, Bonn, p. 9. 3 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU unter besonderer Bercksichtigung der Ukraine als Transitland, in: Arbeitspapier der Forschungsstelle Osteuropas, No. 105, p. 43, available online: www.forschungsstelle.uni-bremen.de/UserFiles/file/06Publikationen/Arbeitspapiere/fsoap105.pdf, accessed: 27.03.2013. 4 Cf. (here and in the whole paragraph): Westphal, Kirsten (2009). Russisches Erdgas, pp. 9-10 and Pirani, Simon et al. (2009). The Russo-Ukrainian gas dispute of January 2009: A comprehensive assessment, Oxford, p. 20.

The previous day Russia and Ukraine had signed a new gas contract which was the result of personal negotiations between Vladimir Putin and Yuliya Tymoshenko. Two days later, gas flows were returning to their normal levels. 5 After all these tensions and tough negotiations in January 2009 it may not surprise that both partners almost immediately violated the conditions: Ukraine did not fully take its contracted level of gas, while Russia decided not to impose the financial sanctions provided for in the contract.6 Gas transit through Ukraine remained a matter of delicacy for the EU.

1.1

Relevance

The European Union, unlike the United States, does not have an explicit, elaborate doctrine of democracy promotion let alone a democratic mission. Yet it may be considered over the last decade as possibly the most successful democracy promoter of an entire array of international actors involved. 7 No matter if this is the truth, AnneMarie Le Gloannecs and Jacques Rupniks thesis reveals that hopes are pinned on the high potential of the EU to spread European norms and to support human rights and democracy on the international stage of politics. Since the eastward enlargement in 2004, Ukraine has been a direct neighbour of the EU. If by pure chance or not, the Orange Revolution and the realignment of politics in Ukraine took place in the same year as the eastward enlargement. This was also the year of the establishment of the European Neighbourhood Policy (ENP). Since Ukraine is the largest neighbour of the EU, it is of special importance. The country plays a key role in geopolitics due to its geographic location between the EU and Russia. The EU has a strategic interest in good relations to Ukraine. As a country in transition Ukraine still has to solve many problems that EU members have already left behind themselves; so it needs support. Relations regarding the energy sector are a very important part of EU-Ukrainian relations. Approximately 23 per cent of the total imports of gas to the EU go through

In this paper Russian and Ukrainian names of people, cities etc. are transliterated with the help of the British Standard System which is the main system used by Oxford University Press. If the Russian or the Ukrainian term is used depends on what is considered to be the more common version in the given context. However, in most of the cases the Russian version appears to be the more common. 6 Malygina, Katerina (2010). Ukrainian-Russian Gas Relations After the 2009 Conflict: The Current Situation and Future Prospects, in: Russian Analytical Digest, No. 75/2010. p. 6. 7 Le Gloannec, Anne-Marie / Rupnik, Jacques (2008). Democratization by extension: Seeking reinsurance, in: Laidi, Zaki (ed.). EU foreign policy in a globalized world: Normative power and social preferences, London, p. 51.

Ukraine. 8 The EU, the worlds biggest importer of energy, is dependent on Ukraine. Only about 1.9 per cent of the worlds natural gas deposits are located on the territory of the EU.9 Focussing on other energy sources than gas might medium to long-term reduce the dependency on gas transit through Ukraine. On the other hand, gas is a relatively environmentally friendly energy source. The EU has a clear imagination on how the energy market should work. The crises of 2006 and 2009 have left marks and they have opened the EUs eyes. It was not a coincidence that the Green Paper on A European Strategy for Sustainable, Competitive and Secure Energy was issued right after the gas crisis of 2006. 10 Energy security is on top of the EUs agenda, as the title of this Green Paper underlines. Especially since 2008, the third point on the agenda is treated equally to sustainability and competitiveness. 11 Already in its Green Paper of 29 November 2000 Towards a European strategy for the security of energy supply the European Commission mentioned the term energy security, pointing to the high importance of energy for the beginning of the European integration in the scope of the European Coal and Steel Community. 12 When analyzing EU-Ukraine relations and the EUs energy security, it has to be considered that new pipeline projects are going on, but at present it is not to be expected that they can change the situation on the whole. 13 The crises of 2006 and 2009 have shown what might happen if the political situation in Ukraine and/or Russia gets out of control. Therefore the EUs interest in reliable Ukrainian partners is high. Events like the gas crisis in 2009, which serves as the starting point of the present study, are significantly influenced by structural problems of the Ukrainian energy sector. These problems weaken Ukraines position in negotiations with Russia about the prices for the import and the transit of gas. The import of Russian gas to Ukraine and the
8 9

Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, p. 26. Cf. ibid., p. 21. 10 Cf. Westphal, Kirsten (2006). Energy Policy between Multilateral Governance and Geopolitics: Whither Europe?, in: Internationale Politik und Gesellschaft, No. 4/2006, p. 44 and European Commission (2006). Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy, COM (2006) 105 final, 8 March 2006, available online: europa.eu/documents/comm/green_papers/pdf/com2006_105_en.pdf, accessed: 27.03.2013. 11 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, pp. 12-13. 12 European Commission (2000). Green Paper: Towards a European strategy for the security of energy supply, COM (2000) 769 final, 29 November 2000, p. 11, available online: ec.europa.eu/energy/green-paper-energy-supply/doc/green_paper_energy_supply_en.pdf, accessed: 27.03.2013. 13 Due to the limited scope of this study an analysis of the ongoing pipeline projects and their potential outcomes is not possible here. Nevertheless they are important factors in EU-Ukrainian relations regarding the energy sector. For example the EU could use them in negotiations with Ukraine as leverage.

transit of Russian gas through Ukraine are linked with each other, because stopping the gas flow to Ukraine by Russia would most likely lead to a disruption of the gas transit to the European Union. The transit to EU member states is a very important issue for Russia. Ukraine could misuse this in order to strengthen its position in negotiations regarding the import of gas that it needs for the domestic market at any time. This is the reason why not only the EU-Ukrainian relations regarding the gas sector are of high political importance. A medium to long-term reduction of the Ukrainian dependency on Russian gas could change the situation by improving Ukraines position in negotiations with Russia on new gas contracts and/or transit contracts. If the EU could help Ukraine to achieve a better position, this could lead to more energy security for the EU member states, no matter what happens with new pipeline projects, which aim at avoiding passing Ukraine. Because of that, EU-Ukrainian relations regarding the entire energy sector are relevant. The general question if the EU is promoting human rights and democratic values determines its foreign policy. It is considered to be a crucial question if the EU is ready to sacrifice market and/or strategic advantages in order to help prevent violations of human rights and support democratic values. In the case of Ukraine, the EU finds itself in a dilemma, due to its dependency on gas transit through Ukraine. Several events after the gas crisis of 2009 have raised serious concerns if the Ukrainian government respects human rights and democratic values. This study analyzes, if the EU has been acting as a normative power since the gas crisis of 2009 despite its dependency on gas transit through Ukraine. This is a very interesting research field, because so many factors could have influenced the EU. If the EU was acting as a normative power in the case of Ukraine, this would suggest the assumption that Ian Manners NPE (Normative Power Europe) approach is applicable to many other areas too. Therefore, this study deals with issues of significant political relevance.

1.2

State of research

The foreign policy of the EU has been thematized in great detail in several studies in recent years. Ukraine has been chosen as a case study by various authors. The Association Agreement (AA), which is also one of the aspects discussed in this paper, has often been considered to be one of the key factors in the context of an analysis of the nature of the EUs foreign policy. Among other instruments of the EU that have been in the focus of the analyses are the ENP and the Eastern Partnership Programme

(EPP). The Energy Community (EC) and more generally the policy area of energy have not been considered by many authors yet, but there are some studies which consider the policy area and the EC in the context of the nature of the EUs foreign policy. This study concentrates on the EC. Official EU documents on Ukraine, for example Commission Communications, are published at regular intervals. They can serve as an important source for the present study. It is considered to be important to relate to both official EU documents and secondary literature. Ian Manners NPE concept had to face more or less unconditional assent as well as contradiction, as this study will show. Other concepts such as Market Power Europe (MPE) or Strategic Power Europe (SPE) have been brought in as counterparts to the NPE approach. This study fits in with this debate, but it does not only aim at serving as another component of research on NPE, it aims at giving answers to a concrete guiding research question which deals with the concrete case of Ukraine. By breaking the analysis of EU-Ukrainian relations down into EU-Ukrainian relations regarding the energy sector after 2009, it works on three levels and cont ains a case in the case. Indeed, the case of Ukraine and the special case of EU-Ukrainian relations regarding the energy sector have already served as examples for NPE or one of the alternative approaches several times. Nevertheless the search for literature has shown that there has not been a source with the exact focus of this study yet, so that there is still more than enough to work out. The present study concentrates on the case in the case, the relations regarding the energy sector, using the examples of the AA and the EC. It takes the gas contract, which followed the crisis in 2009, as a starting point and analyzes the development of the EU-Ukrainian relations and the EUs foreign policy in a limited period of time, the period from 20 January 2009 until March 2013. That the debate on NPE and on EU-Ukrainian relations is so vital should make it possible to contrast different opinions and to draw a balanced conclusion in the final section of this study.

1.3

Guiding research question and structure of the study

The Lisbon Treaty created a legal basis for the EUs energy policy as part of the primary law. Besides its very existence, several content-related points of Article 194 of the Lisbon Treaty are of relevance for this study. Among other aspects, article 194

places the EU institutions under the obligations to secure the functioning of the European energy market and to guarantee the energy security of the Union. 14 But what is the EU ready to do in order to achieve these aims? Is the Union willing to sacrifice economically and strategically important agreements with important partners, if these partners violate human rights and/or the main principles of democracy? How urgently does the EU appeal to another state to respect the values of the European Charter of Human Rights when it comes to cooperation that concerns important sectors like the energy sector? How efficient are the tools that the EU uses to achieve improvements in the issues involved? This study aims at giving answers to these questions by using the example of EUUkrainian relations regarding the energy sector after the gas crisis of 2009. During the four years between the end of the gas crisis on 20 January 2009 and the present study a lot has happened in Ukraine that has had significant influence on the EU-Ukrainian relations. Viktor Yanukovich became the new President of Ukraine in 2010. A lot of decisions followed, which increased the doubts of EU officials concerning the situation of the Ukrainian democracy and the status of human rights in Ukraine. General elections were held in 2012 and they were criticized by international observers. The EU had to make various decisions concerning a further political rapprochement and to decide, whether the EUs concerns over the political situation in Ukraine weigh more than its financial and strategic interests or not. The energy sector is a policy field, which is of high interest to the EU in its relations with Ukraine. It is of high interest to Ukraine too, because of Ukraines dependency on the import of energy from Russia for its domestic market as well as on money which Ukraine gets from Russia for the transit of Russian gas to EU member states. The new transit contract, which was signed together with the gas contract in January 2009, led to very low transit fees for Russian gas. Gazprom announced a price of 2.66 US-$ for 1000 cubic metres per 100km, far below the European average. According to Ukrainian experts a price of 5.11 US-$ would have been necessary to cover the costs of the outdated Ukrainian pipeline system. 15 As explained, EU-Ukrainian relations regarding the entire energy sector are of relevance to the present study, since investments in other energy sources than gas could help
14

Cf. Vertrag von Lissabon (2010). Article 194 (1), in: Bundeszentrale fr poltische Bildung (ed.). Schriftenreihe, 156, , Bonn, p. 144. 15 Cf. Malygina, Katerina (2009): Der neue Gasvertrag: Bedrohung und Risiken fr die Ukraine, in: Ukraine-Analysen, No. 50, 27 January 2009, p. 6, available online: www.laenderanalysen.de/ukraine/pdf/UkraineAnalysen50.pdf, accessed: 27.03.2013.

Ukraine to improve its position in negotiations with Russia and decrease the risk that Ukrainian officials feel put under pressure. Ian Manners work on NPE may serve as one of the main theoretical references. The situation, in which the EU finds itself, can be described as a trap due to the dependency on the gas transit through Ukrainian pipelines. Therefore the EU-Ukrainian relations regarding the energy sector are a very suitable field to apply role theory and to analyze if Manners concept of NPE goes for the EUs foreign policy or not. However, it can only answer if this is the case concerning the applied field of research. The results might enable further studies to draw conclusions beyond the scope of the present study. The guiding research question of this study is the following: Can the EU be described as NPE against the background of its actions in its relations with Ukraine regarding the energy sector in the period from the end of the gas crisis of 2009 until March 2013? The research thesis of this study is that the EU cannot be described as a purely normative power against this background. In order to find an answer to the guiding research question, this study proceeds in the following manner: The introduction has given a brief summary of the events in January 2009. The way of starting this thesis is considered to make sense against the background of the very complicated and confusing events in January 2009. These events continue to have an effect on the situation in 2013 and the content of the gas contract, which was a result of the negotiations during the crisis, has an impact on the present political and financial situation of Ukraine. The second section presents the theoretical framework. An explanation of role theory and its meaning in the context of foreign policy analysis is mandatory. Defining elements of a normative power forms a basis of the concrete analysis whether the EU can be described as a normative power or not. The methodology and the case selection will be explained at the end of the second section. The empirical portion is structured like that: Two case studies, the AA and the EC, will be analyzed. In both cases, a search for indicators of the EUs possible role as a normative power as well as of its possible role as a non-normative power will be conducted. Preliminary findings will be presented after each of the two case studies. Against the background of the research thesis of this study it is expected that especially the case of the EC will serve to verify this thesis.

The conclusion will be going to summarize these findings and to outline the main results. Moreover, it might make it possible to continue work beyond the scope of this study.

Theoretical Framework and Methodology

This section is going to present the theoretical background of the present study. First of all there has to be explained what role theory is and how to apply role theory to foreign policy analysis. Since this study reflects NPE a second step has to be to define what a normative power is and what the concept of NPE means. This leads to the explanation of the choice of cases in this paper and to the presentation of the methodology used. To put it in a nutshell, this section gives a summary of the theoretical framework that will establish a basis for the contextual analysis that will be conducted in the next section.

2.1

Role theory and foreign policy

Originally role theory should explain individual behaviour, but it can also be used for the analysis of foreign policy. 16 Following a definition of Kalevo Holsti who was one of the first who made use of role theory in this context, national roles outline the functions and tasks to which states see themselves committed within different international contexts.17 Against the background of a constructivist approach and in contrast to neo-ralism and neoliberal institutionalism role theory assumes that an actor is able to define his own interests, while being integrated in a network of norms and values.18 The same actor can have different roles in different situations. 19 Moreover, Kirste and Maull stress that not only the ego-part is important, but also the alter-part.20 They distinguish between role concept (the egos strategy of foreign-policy behaviour), role expectations (normative expectations of correct behaviour of outside reference groups) and the actual role behaviour (foreign-policy outcomes).21 According
16

Cf. Kirste, Knut / Maull Hans W. (1996). Zivilmacht und Rollentheorie, in: Zeitschrift fr Internationale Beziehungen, Vol. 3, No. 2., p. 284. 17 Holsti, Kalevi Jaako (1974). International Politics: A Framework for Analysis, 2nd ed., London, p. 127. 18 Cf. Kirste, Knut / Maull Hans. W. (1996). Zivilmacht, pp. 284-285. 19 Cf. Bene, Vit (2011). Role theory: A conceptual framework for the constructivist foreign policy analysis?, Porto, p. 5, available online: www.wiscnetwork.org/porto2011/papers/WISC_2011768.pdf, accessed: 27.03.2013. 20 Holsti focused more on the ego-part, trying to distance himself from sociological definitions of role Theory. The ego-part is often considered to be of more interest in the study of foreign policy. 21 Cf. Kirste, Knut / Maull, Hans W. (1996). Zivilmacht, pp. 283 ff.

to an empirical study, the main limit of role theory is that there is a quite weak link between role concept and role behaviour, which makes it difficult to predict role behaviour by analyzing role concepts.22 Before these concepts can be applied to the case of the EU, first something has to be clarified. Over the years a remarkable number of authors have come to the conclusion that the EU is not an actor in the field of International Relations (IR). 23 There is still an extensive debate going on. For example Hill and Smith demonstrate three perspectives: The EU as a sub-system of IR, the EU as part of the wider processes of IR and the EU as an active power.24 In the present study there is not enough space to explain the different perspectives in detail. Due to the limited scope of this study and since the assumption that the EU is an actor in IR underlies the analysis of NPE, it is necessary to make a decision at this point if the EU possesses so-called actorness or not. The majority of authors in recent years has come to the conclusion that the EU is an actor.25 Also this study starts with the premise that it is one and refers to Brethertons and Voglers definition.26

2.2

Definition of a normative power

The basis for the quite new debate where there is NPE or not was formed in the early 1970s, when the EUs member states began to better coordinate their foreign policy. However, Francois Duchnes idea of Civilian Power Europe (CPE) from 1972 did not focus on the ethical dimension of power. Duchnes main aim was to define the EU as a non-military power.27 His study was one of the first that used role theory to explain the EUs foreign policy. From a present-day perspective, CPE does not eliminate the validity of other approaches such as MPE or SPE which are counterdrafts to Ian Manners NPE-approach. Civilian is non-military, and includes economic, diplomatic and cultural policy instruments; military is, well, military, and involves the use of armed

22 23

Cf. ibid., p. 300. Cf. Bretherton, Charlotte / Vogler, John (2006). The European Union as a global Actor, 2nd ed., London, p. 12. 24 Cf. Hill, Christopher / Smith, Michael (2005). The International Relations of the European Union, Oxford, pp. 7-13. 25 Cf. Kilian, Bertil (2007). Civilian Power or Something Else?: The European Union on its way beyond Civilian Power, Lund, p. 38, available online: http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1321641&fileOId=1321642, accessed: 27.03.2013. 26 Cf. Bretherton, Charlotte / Vogler, John (2006): The European Union as a global Actor, pp. 17 ff.. 27 Cf. Duchne, Francois (1972). Europe's role in world peace, in: Mayne, R. (ed.). Europe tomorrow: Sixteen Europeans look ahead, London, pp. 32-47.

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forces.28 Nevertheless Duchnes thoughts formed the basis for Manners by opening the door for a further debate on the role of the EU in its foreign policy and directing the discussion towards approaches which do not focus on the military importance of the EU. The preference for civilian rather than military instruments seems to be a core element in the description of the EU as a normative power.29 At this point of the study the fact that in recent years the debate has partly followed a different track again on the background of establishing a Common Foreign and Security Policy (CFSP) and a European Security and Defense Policy (ESDP) should not be suppressed.30 The European Security Strategy (ESS) A Secure Europe in a Better World, signed in 2003, and the creation of the post of the High Representative of the Union for Foreign Affairs and Security Policy in the Lisbon Treaty can also be seen in this context. Such a view follows Hedley Bull who states that CPE is a contradiction in terms and that civilian instruments can only be po werful on the basis of military instruments not being used though at hand.31 Ian Manners was not the first to mention the idea of NPE, but there have been many comments of other experts on his work and in this study his work will serve as a main reference. The NPE approach focuses on ethical aspects instead of the distinction between civilian and military aspects. Manners justifies this focus mainly with the history and the constitutional configuration of the EU.32 He is of the opinion that the EU through its catalogue of norms in its foreign policy comes closer to the European Convention on Human Rights and Fundamental Freedom (ECHR) and the Universal Declaration of Human Rights (UDHR) than most other actors in world politics. 33 In his view, the relatively weak position of the EU in terms of military power paradoxically leads to its strength, which is caused by its normative power. Normative power is the

28

Smith, Karin E. (2004). Still 'civilian power EU?', Paper presented at the CIDEL Workshop 'From Civilian to Military Power': The European Union at a Crossroads?, Oslo, 22-23 October, p. 1, available online: www.sv.uio.no/arena/english/research/projects/cidel/old/WorkshopOsloSecurity/Smith.pdf, accessed: 27.03.2013. 29 Sjursen, Helen (2004). Beyond Westphalia? Conceptualising the foreign policy of a post-national union: In search of normative power Europe, Oslo, p. 3, available online: www.sv.uio.no/arena/english/research/projects/cidel/old/WorkshopOsloSecurity/Sjursen.pdf, accessed: 27.03.2013. 30 Cf. Kilian, Bertil (2007). Civilian Power or Something Else?, p. 33. 31 Cf. Bull, Hedley (1982). Civilian Power Europe: A Contradiction in Terms?, in: Journal of Common Market Studies, Vol. 21 (), p. 151ff.. 32 Cf. Manners, Ian (2002). Normative Power Europe: A contradiction in terms?, in: JCMS, Vol. 40, No.2, pp. 240 and 252. available online: http://onlinelibrary.wiley.com/doi/10.1111/14685965.00353/pdf, accessed 27.03.2013. 33 Cf. ibid., p. 241.

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power to define what is normal. 34 Transferred to foreign policy, this includes setting standards that other states have to satisfy. The focus on normative power evokes the EUs image as a force for good in the world.35 Manners defines five core norms and four further norms. The core norms are peace, liberty, democracy, the rule of law and respect for human rights. The additional norms, which can be found in the acquis communautaire are social solidarity, anti-discrimination, sustainable development and good governance. 36 Niemann and Junne are right about the fact that Manners concept of normative power should be considered as an ideal type. 37 They propose three criteria for ideal types. These three criteria will be used for a definition in this paper. They are: The degree of the normativity of the EU according to the three groups of indicators (the ability to characterize norms; genuine normative commitment towards strategic self-interest; power for the good versus unreflected, unilateral spread of o nes norms), the degree of the symmetry of relations or negotiations (symmetrical or asymmetrical) and the degree of the use of soft power (attraction, argumentation) and hard powers (threats, sanctions, violence). 38 This study critically analyses if the EU is really acting as NPE in the case of Ukraine. This does not mean that Manners ideas are per se right or wrong, only because the approach of this study is based on some of his thoughts. It means that an ideal outcome of this study would be that the case study Ukraine allows at least some theses about the general relevance of Manners ideas. There are several authors who do not agree with Manners concept of normative power at all. One of them is Adrien Hyde-Price who takes a neorealist view. His main criticism is related to the structure of the EU and the meaning of this structure for the EUs foreign policy. In his view, the EU is not a sovereign actor in its own right, but it acts as a vehicle for the collective interests of its member states.39 This does not only lead him to the conclusion that the EU does not possess actorness, in his opinion the EUs foreign policy is a collective attempt at milieu shaping of the Unions member states and security and power maximization concerns weigh more than ethical concerns.
34 35

Cf. ibid., p. 236. Cf. ibid., p. 242. 36 Cf. ibid., p. 242 ff.. 37 Cf. Niemann, Anne / Junne, Gerd (2011). Europa als normative Macht?, in: Simonis, Georg / Elbers, Helmut (eds.). Externe EU-Governance, Wiesbaden 2011, p. 115. 38 Cf. ibid.. 39 Hyde-Price, Adrian (2006). 'Normative' power Europe: a realist critique, in: Journal of European Public Policy, Vol. 13, No. 2, p. 220.

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But for Hyde-Price these ethical concerns are always second-order concerns and states will sacrifice them if they clash with their core national interests. 40 According to this approach the NPE concept is no longer of relevance when it comes to serious negotiations with strategically important powers like Russia or China. 41 An interesting side note is that Hyde-Price uses the Orange Revolution in Ukraine as an example of such a case.42 Chad Damro disagrees with Adrien Hyde-Price. He sees the EU as an actor. Moreover, he is convinced that the EU is more of a foreign policy actor than it is in security and defense policy. 43 But Damro also disagrees with Ian Manners. In his opinion, first of all the EU is a market. Therefore he supports the MPE concept. Nevertheless he stresses that this does not mean that he sees the EU as an exclusively neoliberal and capitalist actor.44 According to Damro it is also important if an actor uses coercive measures in the exercise of power or not. This seems to be logical and therefore this study will also try to analyze that. His opinion, which goes back to thoughts of Kalevo Holsti, is that there is a relative absence of physical power, but that the EU uses persuasive and coercive measures to externalize its market.45 Interestingly, Damro constructs the MPE approach on the basis of the EUs history, just as Manners does with the NPE approach, as the following statement shows: While normative and other bases of the EUs identity may exist, when looking at its historical development and present role in the international system, the EU seems to have an alternative basis for its identity: its large regulated market.46 Another main point against Manners ideas is that he justifies neoliberal economic imperialism. 47 This is a typical argumentation of Marxist critiques. On a more general level one may argue that Manners approach is not critical at all and may justify various types of decisions including, for instance, the expansion of the European market. Indeed, this might be a problem of the NPE concept. This criticism does not concern the NPE concept as a scientific approach, but its possible political consequences.
40 41

Ibid., p. 222. Cf. ibid., p. 223. 42 Cf. ibid., p. 231. 43 Cf. Damro, Chad (2011). Market Power Europe, Paper prepared for EUSA Biennial Conference, 35.03.2011, Boston, p. 3, available online: http://euce.org/eusa/2011/papers/2j_damro.pdf, accessed: 11.02.2013. 44 Cf. ibid., p. 2. 45 Cf. ibid., p. 13. 46 Ibid., p. 5. 47 Cf. Macdonald, Matthew A. (2007). Three Perspectives on the European Union as a Normative Power, Halifax, p. 3, available online: http://euce.dal.ca/Files/Student_Papers/Matthew_MacDonald.pdf, accessed: 11.02.2013.

13

However, Niemanns and Junnes definition of an ideal type, which is based on Manners approach, allows a profound analysis of whether the EU is acting as NPE in the case examined or not. Manners nine norms should also be kept in mind. Moreover the question if the EU uses persuasive and/or coercive measures or even physical force in its foreign policy is of importance. There is also a distinction between milieu goals and possession goals, which refers to the work of Arnold Wolfers in the early 1960s. This distinction might also be useful. It has been summarized by Karin E. Smith: Possession goals further national interests. Milieu goals aim to shape the environment in which the state or the EU, in our case operates. Milieu goals may only be means of achieving possession goals, but they may also be goals that transcend the national interest and are shared widely.48 Last but not least, normative power should not be analyzed without being aware of more general role theoretical approaches, as, for example, the thoughts about coercive measures reveal. As mentioned above, role concept, role expectations and role behaviour have to be considered. Moreover, there might be differences between the perception of normative power of the ego-part and the alter-part.

2.3

Methodology and case selection

As mentioned above, the general state of research is extensive. Not only different entities of the EU, as for example the European Commission, have published and periodically updated their valuations of the main political questions related to the superior topic of this paper, but many more or less independent authors have done the same. While EU documents can unveil only the ego-part, secondary literature can be used to analyze both, the ego-part and the alter-part. Nevertheless it is mandatory to use primary sources when they are available. 49 Two cases will serve to look for answers to the research question. These two cases are of very different nature and therefore the analyses will differ from each other. At first sight the selection of the two cases might raise doubts as to whether this study is going to try to compare apples to oranges. The main question concerning the EUs policy in the context of the AA seems to be whether the EU is ready to deny itself possible economic advantages because of the unsatisfying political situation in Ukraine or not.

48 49

Smith, Karin E. (2004). Still civilian power EU?, p. 3. Unfortunately the complete English version of the initiated AA has not been published yet. However, secondary literature has been published which comments on parts of the AA and EU publications have given an idea of its content.

14

On the contrary, Ukraine is already a member of the EC and the discussion regarding the EC could apparently only refer to further EU support or to the meaning of the EC membership of Ukraine. Indeed, the two cases have been chosen against the background of the assumption that they might show a different behaviour of the EU. On the other hand, there are supposed to be several common features too. The differences between the two cases might not be as huge as it seems at first glance. Anyway, they allow to get an impression of different aspects of the EUs foreign policy and to draw an overall picture of the EUs activities and decisions in its foreign policy regarding the Ukrainian energy sector.

EU-Ukrainian relations regarding the energy sector since 2009

On 25 February 2010 the new Ukrainian president, Viktor Yanukovich, was sworn into office. Only six days later a no-confidence vote of the Ukrainian parliament Verchovna Rada brought down the government of Yuliya Timoshenko. These two events have determined the EU-Ukrainian relations since 2009. They have affected the negotiations on an AA. The AA and the economic section on the Deep and Comprehensive Free Trade Area (DCFTA) include arrangements, which have an impact on the energy sector. This is the case for the treaty of the EC as well. Moreover, events that are related to the energy sector have influenced decisions concerning the signing of the AA and the entry of Ukraine into the EC. In the EUs understanding, the Ukrainian energy market is still far from being free. It is in the EUs financial and in its strategic interest to deregulate this market. The events on the stage of politics threaten the deregulation. The EU finds itself in a dilemma. This section will analyze how the EU has reacted on the events and if the EU can be called a normative power due to its reactions or not.

3.1

Association agreement

During the EU-Ukraine summit in September 2008 in Evian, the will to negotiate on a new agreement, called AA, was declared. The completion of the negotiations was announced at the EU-Ukraine summit in December 2011 in Kiev. This was after the beginning of the Tymoshenko case. A few weeks before the summit it had not been sure if the different opinions of the EU and Ukraine on this case would allow to announce

15

the completion of the negotiations on the AA and President Yanukovych had even been talking about a break in the Ukrainian EU-integration.50 However, on 30 March 2012, after years of tough negotiations, the initialization of this agreement, comprising 160 pages, finally started. On 19 July 2012 the economic section on the DCFTA followed. Now the AA is ready to be signed. Gabriele Baumann describes in detail how the process of signing works:
All EU-Member-States governments, the EU commission and the Ukrainian government need to sign the Treaty at an official meeting and thereby give their final approval for the Association Agreement. Following this, the national parliaments of all 27 member states and the European Parliament have to ratify the document. 51

The ratification process may take several years, but it is quite common in such cases to sign an interim agreement on trade and trade-related issues.52 The AA covers the following fields of cooperation:

1. The approximation of the European Union and Ukraine on the grounds of common values and an increased participation of Ukraine in EU programs. 2. A cross-border cooperation in the field of external and security policy, inter alia in conflict prevention and military cooperation. 3. Helping Ukraine to achieve European standards in the policy areas of justice and home affairs by promoting the rule of law, democracy and human rights in Ukraine, as well as providing support in the combat of corruption, in the improvement of the judiciarys efficiency and data security. 4. An enhanced economic cooperation by establishing a deepened and strengthened free trade area between the EU and Ukraine. Moreover, specific sectoral cooperation in over 30 areas, for example in the fields of agriculture, industry, energy supply and consumer protection. 5. Launching new ways of cooperation, providing funds and building up a platform for a civil society.53

Four further AAs with Eastern Partners of the EU are being negotiated. 54 The special point about the AA with Ukraine is that it goes way further than already existing AAs
50

Cf. Savin, Kyryl / Stein, Andreas (2011). Janukowytschs Dilemma: Kein Assoziierungsabkommen wenn Tymoschenko hinter Gittern, in: Studien der Heinrich-Bll-Stiftung, 5 Dezember 2011, Kiev, available online: www.boell.de/weltweit/europanordamerika/europa-nordamerika-assoziierungsabkommen-euukraine-13570.html, accessed: 27.03.2013. 51 Baumann, Gabriele (2012): Foreword, in: Sushko, Oleksandr et. al. (2012). EU-Ukraine Association Agreement: Guideline for Reforms, in: Konrad-Adenauer-Stiftung (ed.): KAS Policy Paper, No. 20, Kiev, p. 2, available online: www.kas.de/wf/doc/kas_32048-1522-230.pdf?120911173352, accessed: 27.03.2013. 52 Cf. Sushko, Oleksandr et. al. (2012). EU-Ukraine Association Agreement, p. 10. 53 Baumann, Gabriele (2012). Foreword, p. 2. 54 Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union (DCFTA): Potential fr Reformen der ukrainischen Gesellschaft und die Modernisierung der Ukrainischen Wirtschaft, in: Studien der Friedrich-Ebert-Stiftung, Berlin, p. 1, available online: http://library.fes.de/pdf-files/id/08359.pdf, accessed: 27.03.2013.

16

with other countries who are no official membership aspirants. Its importance for the regional cooperation as well as its scope are higher compared to other AAs. Ina Kirsch van de Water expects that within 10 to 15 years it might help Ukraine to achieve a status as a partner of the EU which is similar to the status of Norway or Switzerland. 55 The complete implementation of all the measures which are content of the agreement would mean that Ukraine would adopt up to 80 per cent of the EUs acquis communautaire within ten years. 56

3.1.1 The EU as a normative power Firstly the working title for the agreement was new enhanced agreement. It was Ukraine that insisted on an AA. 57 The appointment of Vice Prime Minister Andrey Klyuev as Chief Negotiator in October 2010, at a time when the negotiations were at the crossroads, stresses that the Ukrainian government considers the AA to be of high importance.58 The AA has not been signed yet. Its signing has been stalled. The new more for more principle, launched together with the new financial instrument that will follow the European Neighbourhood and Partnership Instrument from 2014, the so-called European Neigbourhood Instrument, is described by the European Commission like that:
The new policy put the principle of more for more at its heart: only those partners willing to embark on political reforms and to respect the shared universal values of human rights, democracy and the rule of law have been offered the most rewarding aspects of the EU policy, notably economic integration (based on the establishment of Deep and Comprehensive Free Trade Areas - DCFTAs), mobility of people (mobility partnerships), as well as greater EU financial assistance.59

This passage does not allow the EU to sign the AA as long as the Ukrainian government has not proved significant change in the situation of human rights and democracy in Ukraine. The question is, if the EU is ready to follow its own criteria. Anyway, the passage emphasizes that the EU is ready to consider human rights and democracy as core values in its foreign policy towards neighbours.

55 56

Cf. ibid.. Cf. ibid., p. 1-2. 57 Cf. Sushko, Oleksandr et. al. (2012). EU-Ukraine Association Agreement, p. 6. 58 Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, p. 4. 59 European Commission (2012b). Delivering on a new European Neighbourhood Policy, JOIN (2012) 14 final, 15.May 2012, pp. 3-4, available online: ec.europa.eu/world/enp/docs/2012_enp_pack/delivering_new_enp_en.pdf, accessed: 11.02.2013.

17

According to the EU and OSCE missions, the Ukrainian general elections in October 2012 were far from being fair. The general elections had been considered to be a litmus test for Ukraine with regard to the signature of the AA and Ukraine did not pass this test.60 On 25 February 2013 at the 16th EU-Ukraine Summit in Brussels, the leaders agreed on the importance of follow-up to electoral irregularities, including early steps to establish a reliable electoral legislation. 61 The negotiations on the AA play a key role in this context and increase the power of the EU. Five months before the election the European Commission announced:
Ukraines performance, notably in relation to respect for common values and the rule of law, will be of crucial importance for the speed of its political association and economic integration with the EU, including in the context of the conclusion of the Agreement and its subsequent implementation. In this context, trials and verdicts against opposition leaders raise serious concerns about the respect for fair trial rules and the independence of the judiciary.62

On 11 October 2011 Yuliya Tymoshenko was sent to prison for seven years. She had been accused of abusing her position as Prime Minister of Ukraine by giving the directive to sign the gas contract with Russia in January 2009. Usually a directive of the cabinet is necessary in such a case. The court was of the opinion that Tymoshenkos directive led to the unlawful appropriation of 11 billion cubic metres of gas that belonged to the intermediary RosUkrEnergo (RUE) by Naftogaz Ukrainy and therefore to severe negative consequences for Ukraine. 63 The replacement of the dubious intermediary RUE had already been part of an agreement from 12 February 2008 between the presidents Yushchenko and Putin. 64 Instead of RUE, from 1 January 2009 Naftogaz was to buy the gas directly from Gazprom. This became also part of the gas contract, which was the result of the crisis of 2009. The replacement of RUE was on top of Tymoshenkos agenda. An intermediary mainly owned by Gazprom and an oligarch with intransparent interest could not lead to positive outcomes for Ukraine.
60

Cf. Konrad-Adenauer-Stiftung (2013). Zwischen Russland und der EU: 90 Tage nach den Parlamentswahlen ist der Kurs der Ukraine noch unklar, Berlin, 29. Januar 2013, available online: www.kas.de/ukraine/de/publications/33385/, accessed: 11.02.2013. 61 Council of the European Union (2013). 16th EU-Ukraine Summit: Joint Statement, 6811/13, 25 February 2013, p. 2, available online: www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/135667.pdf, accessed: 27.03.2013 62 European Commission (2012b). Delivering on a new European Neighbourhood Policy, p. 4. 63 Cf. Savin, Kyryl / Stein, Andreas (2011). Tymoschenko-Prozess: Die ukrainische Fhrung in der Sackgasse, in: Studien der Heinrich-Bll-Stiftung, 28 September 2011, Kiev, available online: www.boell.de/weltweit/europanordamerika/europa-nordamerika-prozess-juliatymoschenko-ukraine-12965.html, accessed: 11.02.2013. 64 Cf. Pirani, Simon et. al. (2009). The Russo-Ukrainian gas dispute, p. 12.

18

Dmytro Firtash, one of the most important Ukrainian oligarchs, held 45 per cent of RUE. 50 per cent belonged to the Russian company Gazprom, the other 5 per cent to the Ukranian Ivan Fursin. But Yuliya Tymoshenko was probably not just interested in replacing RUE due to economic and/or legal reasons, but also due to political ones. Firtash is supposed to be one of Viktor Yanukovychs sponsors. 65 Several persons who surround Yanukovych are on intimate terms with Firtash. The most popular one of these intimate friends is energy minister Boyko, in charge since 2010. He had worked as head of Naftogaz Ukrainy and for Firtashs RUE before Prime Minister Myko la Asarov appointed him energy minister for the second time. Mykola Asarov himself is regarded to be an archenemy of Firtash. Asarov, a more moderate politician, accuses Firtash of being responsible for the arrest of Yuliya Tymoshenko. 66 If this was the truth, it would mean that Tymoshenkos victory concerning the replacement of RUE might have caused her arrest. Anyway, Firtashs influence reveals the influence of oligarchs on Ukrainian politicians. This is a structural problem that the EU has to face. This problem has not been solved yet. In an official ranking by Transparency International Ukraine has been rated 146th out of 180 countries considering the level of corruption in 2009. 67 Further trials against Tymoshenko have been opened. Actually, she is also being suspected to be responsible for the contract killing of a former deputy in the Verkhovna Rada, businessman Yevgeniy Shcherban. 68 The EU wanted Ukraine to ensure that Tymoshenko could participate in the general elections in 2012 as well as in the presidential elections in 2015. As for the general elections, this already fell on deaf ears.69 Since Tymoshenko was issued with a final sentence and according to Ukrainian law this means that she is not allowed to participate in presidential elections, it would be unrealistic to expect that her name will appear on the list of candidates for the presidential elections in 2015. A break in the trial for two weeks was announced on 12 September 2011. Tymoshenkos party Fatherland declared that the break was a consequence of the upcoming meeting of the states participating in the EPP, where the government wanted
65

Cf. Sokov, Nikolai (2006). The Ukrainian gas crisis revisited, in: Current history: a journal of contemporary world affairs, Vol. 105, No. 693, p. 349. 66 Cf. Schuller, Konrad (2010). Die Familie, die Clans und das Gas, in: Frankfurter Allgemeine Zeitung, 3 December 2010. 67 Ranking available online: www.transparency.de/Tabellarisches-Ranking.1526.0.html, accessed: 27.03.2013. 68 Cf. Spiegel online (2013). Ukraine: Timoschenko offiziell des Auftragsmords verdchtigt, 18 January 2013, available online: www.spiegel.de/politik/ausland/timoschenko-offiziell-des-auftragsmords verdaechtigt-a-878475.html, accessed: 27.03.2013. 69 Cf. Savin, Kyryl / Stein, Andreas (2011). Janukowytschs Dilemma.

19

to avoid unpleasant questions. 70 Others cited a common private letter of US State Secretary Hilary Clinton and the EUs High Representative Baroness Catherine Ashton and an expected EU resolution as reasons for the court to slow down the trial. 71 However, the trial continued on 27 September 2011 and finally Timoshenko was sent to prison. Nevertheless, the speculations reveal that the EU is considered to have exerted some influence on the Yanukovych administration at least by the opposition. The Tymoshenko case is not the only trial criticized by the EU. It is common that courts and authorities make opportune decisions in order to please the people in power and according to Nico Lange the situation became worse right after President Yanukovych came into power, reminding him of the era of Leonid Kuchma. 72 The trial against Yuriy Lutsenko, the former Ukrainian Minister of Internal Affairs, has been criticized by the EU too. It cannot be said that the EU ignores other issues than the Tymoshenko case, although this special case has been recognized by the European public at large. Of all people Yuliya Tymoshenko was the one who promised that she would not raise the prices for energy for private households in her election campaign for the presidential elections.73 The fact that prices for private households were held down with the help of subsidies for years is one of the main structural problems that the EU criticizes. The political pressure that the EU exerted has helped to change the situation in recent years. Already in 2010 the first two steps of increasing the gas prices for private households were taken.74 This had become necessary due to the financial problems of Naftogaz Ukrainy. In 2009 the total debt level of the company was approximately 9 billion US-$.75 The financial situation of Naftogaz and the Ukrainian state is connected, since according to Ukrainian law Naftogaz could not go bankrupt.76 Therefore the Ukrainian state had to pay subsidies for Naftogaz, in 2008 more than 1 billion US-$.77 In 2009 the state paid approximately 7 billion US-$ of financial aid for Naftogaz, this caused almost half of
70 71

Cf. Savin, Kyryl / Stein, Andreas (2011). Tymoschenko-Prozess. Cf. ibid.. 72 Cf. Lange, Nico (2010). 100 Tage nach dem Machtwechsel in der Ukraine, in: Lnderbericht der Konrad-Adenauer-Stiftung, 27 May 2010. Kiew, p. 2, available online: www.kas.de/wf/doc/kas_19723-1522-1-30.pdf?100917192239, accessed: 27.03.2013. 73 Cf. Opitz, Petra (2010). Ineffizient und intransparent: der ukrainische Energiesektor, in: Osteuropa: interdisziplinre Monatszeitschrift zur Analyse von Politik, Wirtschaft, Gesellschaft, Kultur und Zeitgeschichte in Osteuropa, Ostmitteleuropa und Sdosteuropa, Vol. 60 (2010), No. 2/4, p. 231. 74 Cf. Koch-Laugwitz, Ursula (2010). Viel Stabilitt, bisher kaum Reformen!: Die Ukraine vor der Kommunalwahl, in: Studien der Friedrich-Ebert-Stiftung, Berlin, p. 3, available online: http://library.fes.de/pdf-files/id/07562.pdf, accessed: 27.03.2013. 75 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, p. 46. 76 Cf. Westphal, Kirsten (2009). Russisches Erdgas, p. 14. 77 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, p. 46.

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the overall state debt.78 The financial situation of Ukraine played a key role on the eve of the gas crisis of 2009 too. The worldwide financial crisis hit Ukraine hard. The GDP decreased by 14 per cent.79 In November 2008, the International Monetary Fund (IMF) had to help Ukraine out with the highest financial aid in history, a volume of credit of 16.5 billion US-$.80 To reach its objectives formulated in the Energy Strategy 2030 would cost the state approximately 20 billion US-$.81 The bad financial situation of Ukraine and the need for foreign investment, especially in the energy sector, may help the EU to achieve improvements concerning the situation of human rights and democratic values. Ukraine is dependent on European and international support. It can also be said that a release of Tymoshenko would bear the risk that the liberalization of the energy market would come to a standstill. That the EU insists on Tymoshenkos release could therefore be considered to be an argument for the existence of NPE. On the other hand, this is just one of many policy areas and generally Tymoshenko is regarded as Europe-friendlier in comparison to President Yanukovych, who is often presented as Russias candidate by the European media.

3.1.2 The EU as a non-normative power At the Eastern Partnership Civil Society Forum in Stockholm in November 2012 the EU Commissioner for Enlargement and European Neighbourhood Policy, tefan Fle, declared that he believed that the EU was likely to sign the AA at the Vilnius Summit in November 2013.82 The EU Foreign Affairs Council reaffirmed this in December 2012. 83 On 25 February 2013 a statement of the Council of the European Union following the 16th EU-Ukraine Summit in Brussels was published. This statement reaffirmed the political will to sign the AA at the Vilnius Summit again, but it added the following: The leaders took note of the actions taken so far by Ukraine, and looked forward to it
78 79

Cf. Malygina, Katerina (2010). Ukrainian-Russian Gas Relations, pp. 6-7. Cf. slund, Anders (2010). Am Abgrund: die ukrainische Wirtschaft in der Finanzkrise, in: Osteuropa: interdisziplinre Monatszeitschrift zur Analyse von Politik, Wirtschaft, Gesellschaft, Kultur und Zeitgeschichte in Osteuropa, Ostmitteleuropa und Sdosteuropa, Vol 60 (2010), No. 2/4, pp. 211-212. 80 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, p. 43. 81 Cf. OECD/IEA (2006). Ukraine Energy Policy Review 2006, p. 122. 82 Cf. PR Newswire (2012). EU Commissioner : EU, Ukraine may sign Association Agreement next year, 30 November 2012, Kiev, available online : www.prnewswire.com/newsreleases/eu-commissioner-eu-ukraine-may-sign-association-agreement-next-year-181497841.html, accessed: 27.03.2013. 83 Council of the European Union (2012). Council conclusions on Ukraine: 3209th Foreign Affairs Council meeting, 10 December 2012, Brussels, p. 2, available online: www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/134136.pdf, accessed: 27.03.2013.

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achieving concrete progress by early May 2013.84 For the first time the European officials fixed a deadline for Ukraine to end selective justice and to implement political changes. This was the opposite of giving Ukraine a carte blanche to sign the AA without fulfilling any pre-conditions. After the summit President Yanukovych said that Ukraine would do its best to satisfy the requirements. 85 This was a surprising reaction considering the fact that Ukraines EU ambassador Konstantin Eliseev had rejected any pre-conditions for the signature of the AA just a few days before the beginning of the summit.86 The reaction could be interpreted as a result of the pressure put on by the EU. A statement by the foreign ministry of Ukraine in March leads to another conclusion. The constant attention of the European Parliament members to Ukraine is a logical expression of the support for Ukraines European aspirations, the ministrys press service said.87 If the EU is really ready to sacrifice the AA in order to improve the political situation in Ukraine, the Ukrainian government either does not want to understand this or is not able to due to the different political style that it is used to. Anyway, the inconsistency of the policy of the EU is remarkable and this may also be a reason for Ukraines perception. At the time when the initialization of the AA and the DCFTA took place, Tymoshenko was in jail too and no pre-conditions for the signing of the AA had been fulfilled. At least, the EU-Ukraine Summit in Kiev on 19 December 2011 had outlined criteria for signing and ratification. The leaders had claimed a judicial reform, free media and freedom of assembly, respect for common values and an improvement of the Ukrainian business climate.88 At the same summit, they had noted that a DCFTA has the potential to contribute to further economic integration with the European Internal Market.89 The European economic interests were mentioned more than once. In the statement following the Brussels Summit on 25 February 2013 the leaders explicitly mentioned the cooperation
84 85

Council of the European Union (2013). 16th EU-Ukraine Summit: Joint Statement, p. 1. Cf. Krasnolutska, Daryna / Neuger, James G. (2013). Ukraine Faces EU Reform Deadline as Key to Association Pact, in: Bloomberg News, 25 February 2013, available online: www.businessweek.com/news/2013-02-25/ukraine-faces-eu-reform-deadline-as-key-to-associationpact, accessed: 27.03.2013. 86 Cf. Euractiv (2013). Ukraine rejects pre-conditions for EU deal, 20 February 2013, available online: www.euractiv.com/europes-east/ukraine-rejects-pre-conditions-e-news-517934, accessed: 27.03.2013. 87 Shanghai Daily (2013). Ukraine optimistic about signing association deal with EU in November, 14 March 2013, Kiev, available online: www.shanghaidaily.com/article/article_xinhua.asp?id=130797, accessed: 27.03.2013. 88 Cf. Council of the European Union (2011). 15h EU-Ukraine Summit: Joint Statement, 18835/11, 19 December 2011, p. 2, available online: www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/127064.pdf, accessed: 27.03.2013. 89 Ibid..

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in the gas sector. They took note of the seventh joint report on the implementation of the Memorandum of Understanding on energy cooperation and reaffirmed that Ukraine as a transit country remains a reliable partner for the EU and stressed the importance of Ukraines Gas Transit System (GTS) for transporting gas to the EU Member States. The EU promised to continue its support for the modernization of the Ukrainian GTS.90 This reveals that gas transit to Europe played an important role in the officials thoughts. In a speech on 27 February 2012 Stefan Fle explained: It is crucial that any gas agreement with Russia also guarantees full respect for Ukraine's obligations under the Energy Community Treaty. This not only forms a key part of the Association Agreement, but is also essential for the country's future energy security and independence.91 Moreover, he claimed a market oriented price for Ukrainian gas and mentioned the idea of a gas consortium as a pre-condition for the signing of the AA:
And finally, it's about time for Ukraine's efforts to secure a market oriented price for its gas to be successful. We have always supported these efforts and we are ready and willing to participate in discussions about a trilateral consortium on the Ukrainian gas transit system. Such a triangle would logically represent the producer, transit country and the consumer.92

This has to be explained. On 16 January 2009, during the crisis, Gazprom and the Italian company Eni proposed to found a consortium of big power companies to raise the funds necessary for the technical gas. 93 The companies involved should have been ENI, Gdf/Suez, E.ON/Ruhrgas, RWE, Wingas, OMV and Gazprom.94 The consortium idea was not needed later, because the negotiations were brought to a successful end, but it may have helped to increase the speed of the negotiations, it seems likely that it helped to speed up the process by removing the final Ukrainian objection that it was not prepared to pay for lineback and fuel gas to restart the transit network. 95 The lineback and fuel gas could have been paid by the consortium. According to Simon Pirani the consortium was set up by gas companies, backed by national leaders Prime Minister Silvio Berlusconi of Italy and Chancellor Angela Merkel of Germany, together
90 91

Council of the European Union (2013). 16th EU-Ukraine Summit: Joint Statement, p. 3. Fle, Stefan (2012). Ukraine: Relations with the EU at the cross-road, Speech at the Eastern Promises Policy Dialogue organized by the European Policy Centre Brussels, SPEECH/12/127, 27 February 2012, Brussels, available online: http://europa.eu/rapid/press-release_SPEECH-12-127_en.htm, accessed: 27.03.2013. 92 Ibid.. 93 Cf. Westphal, Kirsten (2009). Russisches Erdgas, p. 21. 94 Cf. Pirani, Simon et. al. (2009). The Russo-Ukrainian gas dispute, p. 48. 95 Ibid..

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with Prime Minister Putin are said to have been particularly influential but there is no suggestion that the Commission played any role. 96 Originally the proposal of a consortium goes back to an agreement between Vladimir Putin, Leonid Kuchma and the German chancellor Gerhard Schrder on 10 June 2002.97 The recently discussed idea looks like that: The task of the consortium would be not only using the existing Ukrainian gas transportation system, but also modernizing it with the participation of Russia, while at the same time increasing the flow of transit gas to Europe to 200 billion cubic metres.98 Ukraine could hold 34% of the shares, Gazprom and European companies 33% each. Probably the European companies would be allies of Gazprom, so that Gazprom would have a bigger influence on the consortium than the Ukrainian state. Despite very positive financial outcomes for Ukraine in the short term, the country has refused to sign an agreement on such a consortium so far. Ukraine fears that Gazprom could completely control the Ukrainian pipeline system with the help of such an agreement and Ukraine would lose its strategic importance for the EU and weaken its own position in tariff negotiations on the price for gas needed for the domestic market permanently. The idea of a consortium is still on the table. Charlotte Bretherton and John Vogler state: The EU is above all an economic power, and trade provides the foundations of its actorness. 99 They explicitely relate to AAs and summarize their opinion on agreements like those by the following sentence: The common element in all these agreements is trade, and, usually, some form of discrimination or preference. 100 Indeed, this is correct. The role of the fourth field of the AA, economic cooperation, is a crucial one.101 Its aim is the complete opening of the Ukrainian market. In this context, one could argue that the EU applies double standards. While the opening of the Ukrainian market is an integral part of the DCFTA, the European market would only be completely opened for Ukrainian investors if the Ukrainian government proved that it is able to conduct all necessary economic and political reforms.102 Exactly this, the opening of the European market for Ukrainian investors, is considered to be one of the main reasons for Ukraine to sign the AA. Such

96 97

Ibid.. Saprykin, Vladimir (2004). Subjekt oder Objekt?: Die Ukraine und der Gastransit in die EU, in: Deutsche Gesellschaft fr Osteuropakunde e.V. (ed.). Zeitschrift Osteuropa, Vol. 54, No. 9-10, p. p. 259. 98 Malygina, Katerina (2010). Ukrainian-Russian Gas Relations, p. 7. 99 Bretherton, Charlotte / Vogler, John (2006). The European Union as a global actor, p. 62. 100 Ibid., p. 76. 101 Cf. Sushko, Oleksandr et. al. (2012). EU-Ukraine Association Agreement, p. 12. 102 Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, p. 2.

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a market opening is associated with hopes for more foreign direct investment in Ukraine and a positive development of the economic environment.103 There has been a controvery on an essential part of the AA, which also shows that the AA clearly serves to satisfy the EUs economic interest. Because of its experiences with Russia, Ukraine first did not want to except the EUs claim that the AA should contain a guarantee for gas supply from Ukraine. The EU insisted on such a guarantee. 104 Finally, Andrey Klyuev convinced the EU. Ukraine does not automatically have to pay a fine in case of a disruption of the gas flow. 105 Surprisingly, Yuliya Tymoshenkos daughter Evgeniya asked the EU to sign the AA and declared that different measures could be taken to stop the spread of authoritarianism in Ukraine at a visit to Brussels in December 2011. She stressed that her mothers arrest should not be a reason to ruin Ukraines historical chance. At the same time, she claimed sanctions including visa bans on Ukrainian officials. 106 All this may be an attempt to present her mother as a martyr for the Ukrainian people. But against the background of the fact that the majority of Ukrainian NGOs and of the Ukrainian opposition agree with her, it is a serious point.107 In 2011 Jerzy Buzek, the former President of the European Parliament, declared something very similar to Evgeniya Tymoshenkos statement. The verdict of the Ukrainian court will certainly be one of the obstacles in our direct contacts and certainly will have a negative impact on our negotiations, but I am sure that we should continue our negotiations on the Association Agreement. We should not punish the Ukrainian people, he said.108

103 104

Cf. ibid.. Cf. Savin, Kyryl / Stein, Andreas (2011). Ukraine erneut zwischen europischer Union und Russland?, in: Studien der Heinrich-Bll-Stiftung, 16 May 2011, available online: www.boell.de/weltweit/europanordamerika/europa-nordamerika-ukraine-zwischen-eu-undrussland-12030.html, accessed: 27.03.2013. 105 Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, p. 9. 106 Cf. Kyiv Post (2011). Sign deal with Kyiv, Tymoshenko tells EU, 14 December 2011, available online: www.kyivpost.com/content/politics/sign-deal-with-kyiv-tymoshenko-daughter-tells-eu118969.html, accessed: 27.03.2013. 107 Cf. Vogel, Thomas (2012). Wie weiter?: Das Assoziierungsabkommen der EU im Spannungsfeld von Wirtschaft und Menschenrechten, in: Ukraine-Analysen, No. 103, 8 May 2012, p. 3, available online: www.laender-analysen.de/ukraine/pdf/UkraineAnalysen103.pdf, accessed: 27.03.2013. 108 Euronews (2011). EU feels let down by Ukraine over Tymoshenko, 11 October 2011, Brussels, available online: www.euronews.com/2011/10/11/eu-feels-let-down-by-ukraine-overtymoshenko/, accessed: 27.03.2013.

25

Buzeks opinion cannot be totally denied. The statement following the EU-Ukraine Summit in Kiev on 19 December 2011 contained the following passage:

The leaders recognised the critical importance of the Association Agreement which would constitute a new stage in the development of Ukraine-EU contractual relations aiming at political association and economic integration. This would include a comprehensive process of convergence and approximation of Ukraine to European Union values, standards and norms in all areas of cooperation. To this end, the leaders underlined the importance of stepping up efforts in the implementation of the EU-Ukraine Association Agenda.109

It cannot be denied that three of the five fields mentioned in the draft are strongly related to Ian Manners core norms. Even the DCFTA contains not only sections that deal with questions of trade, energy, economy and sectoral cooperation, but also sections that deal with questions of political dialogue and reforms, justice, domestic politics and security. 110 Another passage of the same statement comments even more clearly on this issue:
The leaders recalled that the Association Agreement provides for a shared commitment to a close and lasting relationship that is based on common values, in particular full respect for democratic principles, rule of law, good governance, human rights and fundamental freedoms, including the rights of persons belonging to national minorities, nondiscrimination of persons belonging to minorities and respect for diversity and human dignity.111

For Ukrainian officials the entry into the EU is still at least a long-term aim and the EUs own attractiveness might be an important source of its normative power. Following Anne-Marie Le Gloanec and Jacques Rupnik the enlargement process is the EUs most successful democracy promotion programme. 112 By stalling the signing of the AA, the EU takes the risk that Ukraine decides to go another way and to concentrate on better relations with Russia. Ukraine still has the opportunity to join the Customs Union of Belarus, Kazakhstan and Russia. Commitments as a young member of the WTO do not allow this officially. Not trying to join any of the two Unions is not likely to be a realistic option, since Ukraine depends on credits from Western institutions like World Bank and IMF, which probably would have to be replaced by other sources if Ukraine put an end to its EU integration, which is often considered to be equivalent to its Western integration. 113 By joining the Customs Union, Ukraine might have to
109 110

Council of the European Union (2011). 15h EU-Ukraine Summit: Joint Statement, p. 1. Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, p. 2. 111 Council of the European Union (2011). 15h EU-Ukraine Summit: Joint Statement, p. 2. 112 Le Gloannec, Anne-Marie / Rupnik, Jacques (2008). Democratization by extension, p. 51. 113 Cf. Savin, Kyryl / Stein, Andreas (2011). Tymoschenko-Prozess.

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expect a penalty which would possibly eat up advantages for the Ukrainian economy. 114 The membership of Ukraine in the Customs Union might close the door for a Ukrainian EU-membership. On the other hand, signing the AA would close the door for a Ukrainian membership in the Customs Union. The Kremlin would certainly not be amused about this. Having Ukraine on its own sid e and not on Russias is an important strategic interest of the EU. The EU would lose its influence on the situation of human rights and fundamental freedoms in Ukraine if the country joined the Customs Union.

3.1.3 Preliminary findings During the debate on the situation in Ukraine in the European Parliament on 13 March 2013, Commissioner Fle called the recent developments in Ukraine a paradox. He stressed the constructive atmosphere at the EU-Ukraine Summit a few weeks before, but at the same time explained that the situation remains difficult and that there are a number of developments which go contrary to the spirit of the commitments taken at the Summit.115 The prediction of Kyryl Savin and Andreas Stein that the signing of the AA will be postponed until the end of the Yanukovych era, so that both sides, the Ukrainian government as well as the EU, could save their faces, is highly speculative. 116 Anyway, Swedish Foreign Minister Carl Bildt hit the nail right on the head. He called it a suicide mission to try to get the association agreement signed through national parliaments if the situation in Ukraine does not change.117 Ukraine is interested in signing the AA and hopes for economic advantages through this agreement. The EU makes good use of that. European officials have clearly outlined several pre-conditions for the signing of the AA. They have even formulated a deadline and declared that they expect Ukraine to achieve significant improvements until this deadline. Despite the wish of Evgeniya Tymoshenko to make use of hard powers like sanctions, the EU has preferred to count on soft power through the attraction of its market and through argumentation. The EU uses persuasive rather than coercive measures. However, not signing an already initialized AA could be perceived as a
114 115

Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, p. 1. Fle, Stefan (2013). EP debate on the situation in Ukraine, SPEECH 13/226, 13 March 2013, available online: europa.eu/rapid/press-release_SPEECH-13-226_en.htm?locale=en, accessed: 27.03.2013. 116 Cf. Savin, Kyryl / Stein, Andreas (2011). Tymoschenko-Prozess. 117 Kyiv Post (2012). Fule: EU-Ukraine association agreement to be initialed within a month, 28 February 2012, available online: www.kyivpost.com/content/ukraine/fule-eu-ukraine-associationagreement-to-be-initia-123265.html, accessed: 27.03.2013.

27

coercive measure by Ukraine. According to the symmetry of the negotiations there is mixed evidence. On the one hand, EU-Ukraine Summits and other platforms allow Ukraine to negotiate with the EU on a common level. On the other hand, the AA itself contains various asymmetries, especially with regard to the DCFTA. The analysis has shown that the EU pursues both possession goals and milieu goals. The EU is partly acting as a normative power. It has stressed the importance of a judicial reform, free media and freedom of assembly and respect for common values. It has criticized Ukrainian election procedures and the arrest of Yuliya Tymoshenko and other members of the opposition. This has been considered to have an influence on the situation in Ukraine. However, all in all the outcome of t he EUs policy in this field has been poor. The political networks of oligarchs and other structural problems remain a threat to Ukrainian democracy. The new more-for-more principle does not allow the EU to sign the AA. The EU has realized the importance of human rights and democratic values in the context of such agreements, but it is questionable, if the EU is consistent in this regard. The EU is also driven by its economic interests. The energy sector is of high importance in this context. The DCFTA aims at liberalizing the Ukrainian market and at further integrating the Ukrainian market into the European market. The EU would benefit from that. Cooperation in the energy sector, especially in the gas sector, has explicitly been mentioned in official documents in order to stress the importance of the Ukrainian market. Pre-conditions for signing the AA do not only refer to questions of human rights and democracy, they include both an improved business climate and the implementation of a gas consortium. A higher price for Ukrainian energy consumers is one of the results of European claims that has already been achieved. Generally it can be said that the energy sector would not only be affected by the signing of the AA, but it has already been affected by pre-conditions for the signing and European interests regarding this sector might be contradictory to the NPE approach. Therefore the research question of the present study and the section on the AA belong together. Last but not least, the EU may be driven by strategic interests regarding its security, too. The AA even contains a section on military cooperation. Due to the limited scope of this study and because the main aim of this study is to discuss the concept of NPE, the analysis could not focus on the SPE concept. Anyway, this concept should be kept in mind. The risk to lose influence on Ukraine against the background of a Ukrainian membership in the Customs Union of Belarus, Kazakhstan and Russia may be seen in

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this context as well. Actually, this would have an impact on all the three concepts mentioned: NPE, MPE and SPE. The perception of the alter-part has revealed contradictions. On the one hand, President Yanukovich has promised that Ukraine will do its best to satisfy the require ments for the signing of the AA. On the other hand, Ukraine does obviously not take these requirements seriously. The Ukrainian government seems to be more or less convinced that the EU is going to sign the agreement, no matter what official EU documents say about this issue. Up to a certain point, this is understandable. The EU has decided to initialize the AA and raised hopes that the AA might be signed at the Vilnius Summit in November 2013. The policy of the EU is quite inconsistent. The bottom line is that the EU is perceived more as a common market than as a community of shared values. The threats concerning the AA are mostly perceived as a measure to incre ase the EUs bargaining power.

3.2

Energy Community

On 15 December 2010 the Verkhovna Rada, the Ukrainian parliament, ratified the treaty on the entry into the EC with only one dissenting vote. On 1 February 2011 Ukraine officially joined the EC. 118 The negotiations had started in November 2008 within the scope of the EPP.119 The EC is also known as European Energy Community (EEC) and as Energy Community of South East Europe (ECSEE). The EU and some third states are members of this community. These states are Kosovo, Albania, Bosnia and Herzegovina, Croatia, Montenegro, the Former Yugoslavian Republic of Macedonia, Serbia, Moldova and Ukraine, which is the latest member state. As a member of the EC Ukraine has to take over all parts of the EUs acquis communautaire which concern the energy sector , including the rules for electricity, gas, competition, renewable energies and environment.120 What is remarkable is that the membership treaty provided a very short period of transition for the process of the approximation of standards. Officially the deadline was 1 January 2012. The opening of the gas market should have been realized until that date and Ukraine should have been able to guarantee the access of third parties to conductions and stores, the independency
118

Cf. Grtz, Johannes / Westphal, Kirsten (2011). Die Ukraine in der Energiegemeinschaft: Die Zukunft des Gastransits, in: Stiftung Wissenschaft und Politik (ed.). SWP-Studien, Berlin, p. 1, available online: www.swp-berlin.org/fileadmin/contents/products/aktuell/2011A13_grj_wep_ks.pdf, accessed: 27.03.2013. 119 Cf. Malygina, Katerina (2009): Die Erdgasversorgung der EU, p. 39. 120 Cf. ibid., p. 1-2.

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of the network operator as well as the free choice of suppliers at least for major customers.121 However, it was predictable that Ukraine could not guarantee all these points until 1 January 2012. As the past showed, accepting a soft transition is a current method of the EU. Sanctions only impend in case of serious or repeated breaks of the treaty of the EC.122

3.2.1 The EU as a normative power At first sight , the only norm that the EC provides is a neoliberal interpretation of liberty expressed by the wish for open markets. Johannes Grtz and Kirsten Westphal interpret the entry of Ukraine into the EC as a proof of the Ukrainian governments willingness to cooperate.123 With the entry into the EC Ukraine has become a member of an international organization which is mainly ruled by the Council of the European Union. The right of initiatives and the right of veto regarding the EC Councils decision-making belong exclusively to the EU.124 Sanctions include disfranchising and enjoining Ukraine from participating in meetings and particular measures, which might lead to devastating consequences, especially if these measures concern infrastructural projects. 125 Due to the character of the EC, it seems plausible that, above all, the EU wanted Ukraine to join the EC, because it hoped that an EC membership of Ukraine might increase energy security and improve the climate for investments. This is also what Johannes Grtz and Kirsten Westphal suppose. 126 On the contrary, the EC binds Ukraine to the EUs acquis communautaire and helps to accelerate the political rapprochement. As already mentioned in this study, Ukraine might have the opportunity to join the Customs Union of Belarus, Kazakhstan and Russia. Just like the signing of the AA, Ukraines membership in the EC decreases the probability that Ukraine might decide to join the Customs Union and to turn away from the EU. The most important difference between the AA and the EC is that the EC membership treaty of Ukraine has already been signed. It was signed in 2011, two years after the gas crisis. It binds Ukraine to the integration of its energy market in the European market.

121 122

Cf. ibid. p. 3. Cf. ibid.. 123 Cf. ibid., p. 1. 124 Cf. Grtz, Johannes / Westphal, Kirsten (2011). Die Ukraine in der Energiegemeinschaft, p. 2. 125 CF. ibid., p. 3. 126 Cf. Malygina, Katerina (2009): Die Erdgasversorgung der EU, p. 2.

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The Memorandum of Understanding on Social Issues in the context of the Energy Community proves that the EC has regard to the fundamental social rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, the Community Charter of the fundamental Social Rights of Workers as well as social rights set out in the proclaimed EU Charter of fundamental Rights. 127 With the Memorandum the signatures note that economic development and social progress are mutually supportive and should go hand in hand. 128 The paper mentions, for example, Womens Rights.129 All this shows that the EUs foreign policy in the context of the EC cannot be seen as driven only by its market interests without regarding social issues. The normative element has been considered. too. According to the European Council, the EC improves the environmental situation in relation to gas and electricity, and promotes energy efficiency and renewable energy sources.130 Sustainable development is not one of Ian Manners core no rms, but it is one of the norms which he identifies. Renewable energies could support a sustainable development of Ukraine, not only regarding the energy supply. Article 2 of the Energy Community Treaty points out that among the tasks of the Energy Community there are to improve the environmental situation in relation to network energy and related energy efficiency and to foster the use of renewable energy. 131 The EU can serve as a role model when it comes to renewable energies and Ukraine could aim at catching up the EU in this field. 132 Indeed, Ukraine is far from reaching the 20-20-20-targets of the EU, which include the goal of an amount of renewable energies of the primary energy use of 20%. In 2006, the amount of renewable energies of the Ukrainian primary energy use was only about 1.2%.133 According to estimates of the Kiev Institute of Renewable Energy the technical potential of renewable energy in

127

Energy Community (2007). Memorandum of Understanding on Social Issues in the context of the Energy Community, p. 7, available online: www.energy-community.org/pls/portal/docs/296209.PDF, accessed: 27.03.2013. 128 Ibid., p. 3. 129 Cf. ibid., p. 5. 130 Cf. Eur-Lex (2006). Council Decision of May 2006 on the Conclusion by the European Community of the Energy Community Treaty, 2006/500/EC, L 198/15, 20 July 2006, available online: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006D0500:EN:HTML, accessed: 27.03.2013. 131 Eur-Lex (2006). The Energy Community Treaty, Art. 2d, L 198/18, 20 July 2006, available online: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:198:0018:0018:EN:PDF, accessed: 27.03.2013. 132 Cf. Westphal, Kirsten (2009). Russisches Erdgas, p. 41. 133 Cf. Opitz, Petra (2010). Ineffizient und intransparent, p. 232.

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Ukraine is extraordinarily high.134 So far the political will to use it has been missing. Renewable energies are not on top of the agenda of Ukraines strategies. The membership in the EC could change this.

3.2.2 The EU as a non-normative power

Ukraine is on the eve of joining the Energy Community of South-Eastern Europe, set up within the framework of the European Energy Policy for extension of the norms and rules of the energy legislation of the European Union to the neighbouring and partner countries, to promote liberalisation, openness and transparency of their energy markets. 135

This is a statement published by the Razumkov Centre, the Ukrainian Centre for Economic and Political Studies, a Ukrainian non-governmental organization. It shows that Ukraine understands that the key issues of the EC are liberalization, openness and transparency of energy markets and that their implementation is not regarded as secondary, but as an important part of the responsibility of a member of the EC. Right before Ukraine joined the EC the Verkhovna Rada passed a law on the operating principles of the natural gas market, which should help to adapt the Ukrainian natural gas market to EU standards as defined in the EU Gas Directive 2003/55/EC. 136 In the statement following the Brussels Summit on 25 February 2013 the leaders welcomed Ukraines progress in implementing their obligations under the Energy Community Treaty and recognised that further efforts are required to implement all the obligations. Furthermore, the parties agreed to further promote energy cooperation based on principles of solidarity and mutual benefit. They noted with satisfaction that since November 2012, Ukraine has been connected to the EU gas market through effective bi-directional gas flows. 137 The importance of the Energy Community had also been mentioned in the conclusion of the Foreign Affairs Council meeting on 10 December 2012.138 In all these cases only the economic advantages for both sides have been underlined.

134

Cf. Rosenberger, Christine (2012). Die Energiepolitik der Ukraine, in: Konrad-Adenauer-Stiftung, KAS Policy Paper, No. 18, Kiew, p. 18, available online: www.kas.de/wf/doc/kas_33444-15221-30.pdf?130206154511, accessed: 27.03.2013. 135 Razumkov Centre (2008). Gas Markets of the EU and Ukraine: Problems of development and Integration, in: National security and defence, Vol. 8, p. 2. 136 Cf. Schneider-Deters, Winfried (2012). Die Ukraine: Machtvakuum zwischen Russland und der Europischen Union, Berlin, p. 425. 137 Council of the European Union. 16th EU-Ukraine Summit: Joint Statement, p. 3. 138 Cf. Council of the European Union (2012). Council conclusions on Ukraine, p. 3.

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With 3.38 million in 2011 the budget of the EC was relatively small and 98 per cent of it came from the EU.139 The small budget reveals what the EC is about. The EC aims at implementing legal acts which are considered to be part of the EUs acquis communautaire in third countries, following the example set by the EUs member states. These legal acts are linked to the energy sector. Above all, the externalization of the acquis communautaire satisfies the EUs economic interests. It has been mentioned in the present paper that accepting a soft transition is a current method of the EU and that sanctions only impend in case of serious or repeated breaks of the treaty of the EC. This can be interpreted as a way to avoid risking ones own economic advantages. The aim of Energy Security has been on top of the agenda of the European Union since the Commission published the Green Paper Towards a European strategy for the security of energy supply in 2000, which pointed to the fact that the EU is dependent on the import of energy carriers.140 Generally, Energy Security can be defined as the minimization of the risk of energy crises by using policy instruments.141 It is also a main aim of the EC, which for example includes a political platform on the field of energy security. 142 This aim is of economic as well as of strategic interest for the EU. Energy security is a crucial premise to be one of the worlds leading markets. On the age of cyber wars and electronic early-warning systems it is also necessary to secure military defensibility. Wars in the past have shown that access to energy is of high strategic interest. The EC serves as an instrument which helps the EU to guarantee its energy security. The fact that Ukraine threatens to leave the EC may surprise. According to Viktor Yanukovich, the reason for that is a lack of support for Ukraine in the ongoing gas dispute with Russia. Ukraine still has to struggle with the consequences of the gas contract of 2009. Although Yuliya Tymoshenko and the ruling parties denied that, the gas contract led to an obvious change for the worse for Ukraine. The contract, which was designed for a period of ten years, determined that Ukraine has to pay netback prices, just like the EU member states. This means that the price calculation refers to the market prices for heavy fuel oil and for coal. The basic price of 450 US-$ per 1000 cubic metres is high. Furthermore a take-or-pay-clause places Ukraine under the obligation to pay for at least
139 140

Cf. Grtz, Johannes / Westphal, Kirsten (2011). Die Ukraine in der Energiegemeinschaft, p. 2. Cf. European Commission (2000). Green Paper: Towards a European strategy for the security of energy supply, p. 11. 141 Cf. Malygina, Katerina (2009). Die Erdgasversorgung der EU, p. 9. 142 Cf. Ibid., p. 39.

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80 per cent of the contractually agreed gas, regardless of the actual import. A change of the contractually agreed amount of gas in possible renegotiations was limited to not more than 20 per cent.143 The Gas-for-Fleet-Deal from 21 April 2010 could help to alleviate the effects of increasing prices for the import of Russian gas a bit. The term Gas -for-Fleet describes an agreement that contained a reduction of the price for Russian gas for Ukraine of 30 per cent up to a limit of 100 US-$ per 1000 cubic metres of gas. In return Russia was allowed to rent the port of Sevastopol at the Black Sea for 25 more years. 144 Another opportunity to reduce the price for Russian gas would be to join the Customs Union of Belarus, Kazakhstan and Russia. Russia has offered to reduce the prices extremely in this case.145 However, the disadvantages of joining the Customs Union have already been explained in this study. The prices are on a higher level than ever before and the take-or-pay clause still exists. Because of this, negotiations with Russia are going on. Disputes appear from time to time. As explained in the introduction, both parties almost immediately violated the conditions of the gas contract of 2009. The newest dispute concerns the contractually agreed amount of gas for 2012. Russia declared that Ukraine had to pay 7 billion US-$, because it did not take the agreed amount. Ukraine denied that. 146 Moreover, Ukraine announced that it would buy less gas than contractually agreed in 2013, since there would still be enough gas in the Ukrainian underground storages.147 Ukraines position is better than in recent years, since it has decreased its dependency on Russian gas at least a bit by increasing the production of gas on Ukrainian territory. 148 Ukraine has attracted at least some foreign investors. Royal Dutch Shell was one of the first energy companies which mustered the courage to make investments in Ukraine. 149 By the way, the attraction of foreign ivestors may also be a result of its membership in the EC. During the TV project Dialogue with the Country the president declared that in the context of the gas dispute with Russia the interests of Ukraine had been violated by the EC by not supporting its member state and therefore he would not see a reason for
143 144

Cf. Westphal, Kirsten (2009). Russisches Erdgas, pp. 9-10. Cf. Grtz, Johannes / Westphal, Kirsten (2011). Die Ukraine in der Energiegemeinschaft, p. 4. 145 Cf. Kirsch van de Water, Ina (2011). Das Freihandelsabkommen mit der Europischen Union, S. 8. 146 Cf. Malygina, Katerina (2013): Die Oligarchisierung des ukrainischen Energiesektors unter Wiktor Janukowitsch 2010-2012, in: Ukraine-Analysen, No. 112, 12 February 2013, p. 2, available online: www.laender-analysen.de/ukraine/pdf/UkraineAnalysen112.pdf, accessed: 27.03.2013. 147 Cf. Interfax-Ukraine News Agency (2013). Ukraines Naftogaz could buy 18-20bcm gas from Russia in 2013, 26 February 2013, available online: http://en.interfax.com.ua/news/economic/142266.html, accessed: 27.03.2013. 148 Cf. Malygina, Katerina (2013): Die Oligarchisierung des ukrainischen Energiesektors, p. 2. 149 Cf. Rosenberger, Christine (2012): Die Energiepolitik der Ukraine, p. 14.

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Ukraine to stay a member of the EC. He also complained about the EUs decision to allow Russia to build pipelines which do not pass Ukraine. 150 This referred to the South Stream Pipeline. In an interview with the Interfax-Ukraine News Agency Janez Kopac, Director of the Secretariat of the Energy Community, underlined that the EC Secretariats work is dedicated mostly to measures to transpose the agreed legislation. He called the Ukrainian accusations a deep misunderstanding. 151 Actually, of course the Secretariat could support Ukraine (and Janez Kopac offered this), but it is not the idea of the EC that its Secretariat takes the role of a negotiator. Again, the nature of the EC is the main factor. There is no real partnership between the members of the EC, the community is just another instrument of the EU to externalize its law. The second accusation of Ukraine is understandable. The EU has an economic interest in Russian gas, no matter where the gas comes from. However, as a partner of the EU, Ukraine is not amused if the EU supports pipeline projects which do not pass Ukraine. Such projects strengthen Russias bargaining power in negotiations with Ukraine and weaken Ukraines position as a transit country. 152 This point is not directly linked to Ukraines membership in the EC, but the country uses the threat to leave the EC to point to the disregarding of its interests. Ukraine perceives the EU as being only interested in its own economic advantages, not caring about disadvantages for a member state of the EC.

3.2.3 Preliminary findings The analysis of the case of the EC has shown differences in comparison to the first case study. The reason for that is that Ukraine is already a member of the EC, whereas the signing of the AA has been stalled. Therefore the EU cannot use the EC to provide Ukraine an incentive to take care of human rights and democratic values. Actually, the EU could do this if human rights and democratic values were core elements of the EC and the contract of the EC allowed to claim the compliance with human rights and democratic values. In fact, it is not like that.

150

Cf. Natural Gas Europe (2013). Ukraine threatens to quit Energy Group over Russian Dispute, 25 February 2013, available online: www.naturalgaseurope.com/ukraine-threatens-to-quit-overShale, accessed: 27.03.2013. 151 Interfax-Ukraine News Agency (2013). Director of Energy Community Secretariat Kopac: During my visit to Ukraine in March I won't miss opportunity to address most pressing issues, 6 March 2013, available online: http://en.interfax.com.ua/news/interview/143659.html, accessed: 27.03.2013. 152 As mentioned above, the ongoing pipeline projects will not be explained in detail.

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The EC serves to spread market oriented legal acts. The EU cannot be seen as a power for the good in this context at all. Since the EC aims at externalizing the parts of the acquis communautaire which concern the energy sector and it is mainly ruled by the Council of the European Union, there is an obvious asymmetry between the EU and Ukraine. Normally, sanctions are not used as measures of the EC. However, there is the opportunity to use them. Sanctions include disfranchising and enjoining Ukraine from participating in meetings and particular measures. Actually, since sanctions do not impend in case of the violation of human rights or democratic values, but in case of not implementing the acquis communautaire regarding the energy sector, their existence is not even of relevance for the present study. For the same reason, it is not to be answered if milieu goals or possession goals are dominating. The EC aims at increasing the EUs energy security and improving the climate for investments in third countries. Key issues are liberalization, openness and transparency of the markets of the third countries. These countries may also benefit from the EC economically, since they get support concerning the liberalization of their markets and the attraction of foreign investors. Statements by the leaders have always underlined economic advantages for both sides. They have not commented on issues like human rights or democratic values. The Memorandum of Understanding on Social Issues in the context of the Energy Community shows that the EC has regard to fundamental social rights. Womens rights are explicitly mentioned in this memorandum. This proves that normative concerns play a role within the scope of the EC, but it remains a minor role. This is not enough to support the NPE concept. Improvements of the environmental situation due to the support of renewable energy may have a positive impact on sustainable development, which is one of the norms mentioned by Ian Manners. On the contrary, the EU benefits economically from its investments in this sector. Mostly, the EC supports the concept of MPE. However, energy security is of strategic importance too. Therefore, parts of the treaty of the EC can also be used to support the SPE concept. This is important especially in the context of the EU-Ukrainian relations regarding the energy sector, because energy security is one of the crucial factors for these relations. The Ukrainian threat to quit the EC because of a lack of support in ongoing gas disputes with Russia and because of the European support for Russian pipeline projects which

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would not pass Ukraine, reveal that the alter-part clearly sees the EU as MPE, not caring about the interests of its partners.

Conclusion

In terms of normative power: I broadly agree: we are one of the most important, if not the most important, normative powers in the world.153 This statement by Jose Manuel Barroso cannot be verified against the background of the results of the present study in the context of the EU-Ukrainian relations regarding the energy sector after 2009. The present study has shown that the EUs foreign policy in this context partly contradicts itself. The signing of the AA has been stalled because of the unsatisfying situation concerning human rights and democracy in Ukraine. Although the EU has raised Ukraines hopes that the AA might be signed at the Vilnius Summit in November 2013, according to the EUs own statements this cannot happen if the situation in Ukraine does not change enormously. The EU has even set a deadline for significant changes. Ukraine is interested in signing the AA and the EU makes good use of that. The EU has formulated pre-conditions, most of which are related to human rights and democratic values, and it denies the use of sanctions. There is support for the NPE concept in the case of the AA. On the other hand, there are also arguments which contradict the NPE concept. Although the new more-for-more principle does not allow the EU to sign the AA and the political networks of oligarchs and other structural problems remain a threat to Ukrainian democracy, the EU has initialized the AA (after the beginning of the trial against Tymoshenko) and it raises Ukraines hopes for a signing of the AA. This could be a way to make Ukraine stop the violation of human rights and democratic values, but it could also serve the EUs economic interests. It is important for the EU to have a strong partnership with Ukraine to increase its own energy security and to influence the business climate on an interesting market. The DCFTA aims at liberalizing the Ukrainian market and at further integrating it in the European market. Therefore, the EU has an interest in its own inconsistency regarding the signing of the AA. Furthermore, as the present study has revealed, there are several

153

John Peterson (2007). Jose Manuel Barroso = Political Scientist: John Peterson interviews the European Commission President, 17 July 2007, pp. 45, available online: www.eu-consent.net/library/BARROSO-transcript.pdf, accessed: 27.03.2013.

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pre-conditions for signing the AA which do not refer to human rights or democratic values but to the EUs market interests, especially regarding the energy sector. This proves that the situation of human rights and democracy is not the only reason of the EU for not signing the AA. So it could be argued that economic interests influence both signing and not signing the AA. This may sound like a contraction in itself, but this only shows the inconsistency of the EUs foreign policy towards Ukraine. If the EUs foreign policy is inconsistent, this does not support the NPE concept. That the outcome of the EUs efforts within the scope of the negotiations on the AA is poo r may be a result of the inconsistency of its foreign policy. Actually, the political networks of oligarchs and other structural problems remain a threat to Ukrainian democracy. Ukraine became a member of the EC in 2011. In this study, it has not even been discussed if the Tymoshenko case might have been a reason for the EU not to sign the Ukrainian membership treaty. The reason is that there has been no evidence for such an interpretation at all. As to this point, the EU did not even try to act as NPE. Since Ukraine is already a member of the EC, the EU cannot use the EC to lead Ukraine to take care of human rights and democratic values. The contract of the EC does not allow this. The EC serves to spread economic norms by externalizing the parts of the a cquis communautaire which concern the energy sector. Statements by the leaders have always underlined economic advantages for both sides. They have not commented on issues like human rights or democratic values. The EU can be seen as MPE rather than as NPE in the context of the EC. The role of normative concerns within the scope of the EC remains a minor role, as the analysis has shown. The present study has considered the MPE approach to be the most important counterpart of the NPE approach in the relevant field. However, parts of the AA as well as of the EC could also be used to support the SPE concept. The importance of energy security might be a crucial part of such an approach. There is a significant distinction between role concept, role expectations and role behaviour. Especially role behaviour and role expectations do not correspond with an ideal normative power. Ukraines threat to quit the EC underlines that Ukraine has a different understanding of a partnership than the EU has. However, Ukraine does not expect the EU to act as NPE, it wants its support in economic disputes and therefore this is not of importance for the present study. That Ukraine is disappointed by the EU may be connected to the asymmetry in EU-Ukrainian relations. In fact, this is of importance

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for the present study. Although Ukraines claims may not be justified, they reveal that Ukraine sees itself as the EUs puppet. Generally, the EU is perceived more as a common market than as a community of shared values. This could also be said about the negotiations on the AA. There is a lot of potential concerning the EU-Ukrainian relations regarding the energy sector. Ukraine has the status of an Eastern Partner of the EU. Platform 3 of the EPP deals with questions of energy security. The country has signed the Energy Charter Treaty (it should be kept in mind that article seven of the Energy Charter Treaty does not allow Ukraine to stop the gas flow to the EU completely, like it happened in 2009), it has participated in the Baku Initiative, a programme of the EU and its Eastern Partners in the Black Sea Region / Caspian Sea Region launched in 2004, since 2007 in the initiative Black Sea Synergy and in the international energy cooperation programme INOGATE launched in 1995 by the EU. In 2005, a Memorandum of Understanding (MoU) on cooperation in the energy sector was signed by the EU and Ukraine. The ENP also aims at externalizing the acquis communautaire and is among the most important instruments in the EUs foreign policy towards Ukraine. At least at first sight none of these programmes names conditions concerning human rights and democracy in Ukraine. Further studies could analyze this. Who acts on behalf of the EU? Due to the limited scope of the present study, this question could not be answered in detail. Nevertheless, it may explain the actions of the EU in many cases, since the EU is generally a very heterogenic construction and different actors may take different views. For example, the Ukrainian EU-Ambassador Eliseev complained about the role of some member states, especially Germany. 154 Indeed, the EU member states influence the EUs foreign policy regar ding the energy sector, which does not exclusively belong to the area of responsibility of the supranational institutions of the EU. The role of private European companies in the energy sector could also be analyzed in the context of NPE. How independently does the EU act? The present study could not consider this aspect, but especially the idea of a gas consortium has shown the relevance of this field. This paper has focussed on the development of the Ukrainian-European relations since the agreement following the gas crisis of 2009, which marked the transition to a new era. Indeed, this era has brought about many changes. The gas crisis of 2009 has raised
154

Cf. Euractiv (2012). Nach den Parlamentswahlen in der Ukraine: Wir haben den Test bestanden, 19 November 2012, available online: www.euractiv.de/ukraine-und-eu/artikel/wir-haben-den-testbestanden-006929, accessed 27.03.2013.

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European doubts about the reliability of the strategically important transit country Ukraine. To increase its energy security is of high importance for the EU. Therefore the EU aims at integrating the Ukrainian energy market in the European energy market. The Tymoshenko case and the lack of reforms in Ukraine have placed the EU in a dilemma. The aim of this bachelors thesis has been to analyze whether the EU can be seen as a normative power in its relations with Ukraine regarding the energy sector after the gas crisis of 2009 despite this dilemma. Following the mentioned criteria of an ideal normative power the EU cannot be seen as NPE in the context analyzed. The EU is not acting as a purely normative power. It is also driven by other interests. These interests are mainly market interests as for example an improved business climate as well as energy security. The question if energy security is a strategic interest rather than a market interest has been left open. It is not a normative interest. The research question of the present bachelors thesis was: Can the EU be described as NPE against the background of its actions in its relations with Ukraine regarding the energy sector in the period from the end of the gas crisis of 2009 until March 2013 ? The result of this study is that the EUs interests cannot be described as purely normative and therefore the NPE concept is not suitable. There is evidence which verifies the research thesis. This is not only the case for the EC, but also concerning the AA. This has been a quite surprising result of this study. Nevertheless, it has to be said that parts of the EUs foreign policy are driven by its norms. The study has focussed on a limited field. It may give an idea of the EUs foreign policy regarding Ukraine. The energy sector is of crucial importance for the EUUkrainian relations. Further studies could use the results of this study to analyze the EUs foreign policy regarding Ukraine in general and to get a more general impression of the applicability of the NPE approach. As mentioned in the section on the theoretical framework the same actor can have different roles in different situations. The results of this study do not mean that the NPE approach is not applicable at all.

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Curriculum Vitae

Personal details: Name: Address: Christopher Forst Pfarrer-Kreitz-Str. 5 52372 Kreuzau Germany 02422/7750 C.Forst2011@googlemail.com 20 June 1990, Simmerath German

Telephone: Email: Place and Date of Birth: Nationality:

Education: Secondary School 1999-April 2004 April 2004-20. Juni 2008 University Since 1 Oct. 2008 Sept. 2011 Jan. 2012

Stiftisches Gymnasium Dren Bischfliche Liebefrauenschule Eschweiler

University of Cologne (Regional Studies East and Central Europe) Volgograd State University (semester abroad)

Traineeships and honorary work: since 2008 August 2008 October 2009 Mai 2009 April 2011 August 2009 February 2011 1 September 13 Oktober 2010 several duties in the Social Democratic Party of Germany (SPD) several traineeships at local media national press officer of Studieren Ohne Grenzen Deutschland e.V. Chairman of the students of the department of Regional Studies East and Central Europe traineeship within the Foreign Affairs Unit of the Progressive Alliance of Socialists and Democrats in the European Parliament member of the Verein zur Frderung der Stdtepartnerschaft Kln-Wolgograd e.V.

since February 2012

47 Language skills: German English Russian French Polish Bulgarian Latin Interests and hobbies: Politics Travelling Sports Reading actively and passively especially to Eastern Europe Table Tennis, Football especially classic Russian literature native speaker very good knowledge (both written and spoken) good knowledge (both written and spoken) working knowledge basic knowledge basic knowledge nine years at school

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Eidesstattliche Erklrung
Hiermit erklre ich an Eides Statt, dass ich diese Bachelorarbeit selbststndig verfasst und keine anderen, als die angegebenen Quellen und Hilfsmittel bentutzt habe. Die Stellen meiner Arbeit, die dem Wortlaut oder dem Sinn nach anderen Werken und Quellen, einschlielich der Quellen aus dem Internet, entnommen sind, habe ich in jedem Fall unter Angabe der Quelle als Entlehnung kenntlich gemacht. Dasselbe gilt sinngem fr Tabellen, Karten und Abbildungen. Diese Arbeit habe ich in gleicher oder hnlicher Form oder auszugsweise nicht im Rahmen einer anderen Prfung eingereicht. Ich versichere zudem, dass der Text der eingereichten elektronischen Fassung mit dem Text der vorgelegten Druckfassung identisch ist.

Kln, den 28.3.2013 Christopher Forst