The Power and Performance of ‘Association Bodies’ under the EU's Association Agreements with Georgia, Moldova and Ukraine

• Published date: 01 July 2022
• Author: Andriy Tyushka
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/jcms.13309

The Power and Performance of ‘Association Bodies’under the

EU’s Association Agreements with Georgia, Moldova and

Ukraine

ANDRIY TYUSHKA

European Neighbourhood Policy Chair, College of Europe in Natolin, Warsaw, Poland

Abstract

The growing number of EU bilateral agreements with non-member states has led to a proliferation

of transversal joint institutional frameworks governing them. The importance of joint bodies with

their powers to oversee, facilitate and sometimes even enforce the implementation of agreements

should not be underestimated. This particularly applies in cases where joint bodies are endowed

with considerable decision-making powers (for example, amendments to the agreement, binding

decisions on furthering integration), as is the case with the ‘association bodies’established in

the 2010s under the EU’s new-generation association agreements with Georgia, Moldova and

Ukraine. However, to date, the roles and performance of such joint bodies have been largely

neglected. This article addresses this gap in the literature by providing a comparative law-

and-politics account of institutional design, legal aspects of power conferral, and functional and

performative aspects of authority exercised by these association bodies.

Keywords: EU Association agreements; Ukraine; Moldova; Georgia; association bodies; joint institu-

tional frameworks

Introduction

The growing number of bilateral agreements concluded by the European Union (EU) has

led to a proliferation of transversal (unique, albeit archetypal) joint institutional frame-

works (JIFs) for managing them. These JIFs involve important and often powerful bodies,

particularly where they are endowed with considerable decision-making powers (for ex-

ample, amendments to the agreement, binding decisions on furthering integration). This

is the case with the ‘association bodies’(ABs) established in the 2010s under the EU’s

new-generation association agreements with its three Eastern Partnership countries:

Georgia, Moldova and Ukraine (EaP3). The joint association councils, committees and

sub-committees, including inter-parliamentary committees and civil society platforms that

have been established, contribute to the regularization of strategic interaction between the

Union and its three associated ‘neighbour’states. However, they have generally attracted

only limited scholarly attention.

With a focus on the arrangements contained in the association agreements (AAs) con-

cluded with the EaP3, this article addresses a gap in the current literature by providing a

comparative law-and-politics account of the design of the JIFs, the concept and powers of

the ABs, and the authority they exercise. It locates the ABs in the practice of the EU’s

contractual external relations and the broader legal and political science literatures on

treaty bodies, (international) institutions in general, and (external) differentiated

JCMS 2022 Volume 60. Number 4. pp. 1165–1189 DOI: 10.1111/jcms.13309

© 2022 University Association for Contemporary European Studies and John Wiley & Sons Ltd

integration. The article then considers the design, powers and functions, the exercised au-

thority and performance of the ABs over half a decade.

I. Navigating the Concept of ‘Association Bodies’in International Institutional

Law, Political Science, and EU External Relations

The notion of ‘association bodies’draws on the broader political and scholarly discourses

on ‘treaty bodies’,‘joint bodies’,‘joint organs’,‘joint institutions’and other related terms

that are often used interchangeably as well as inconsistently. This is indeed evident in the

EU’s own institutional discourse and both political and judicial practices. For instance,

with regard to the EU–Ukraine AA, the EU’s institutional discourse features references

to ‘joint organs’and ‘implementation bodies’

1

as well as to ‘association bodies’and

‘association institutions’, thus, status-wise, singling out the joint bodies established under

the EU’s AAs from other ‘treaty bodies’. At the same time, the EU’s legal discourse gen-

erally refers to ‘bodies created by international agreements’,

2

thus communicating the ra-

tionale of joint bodies (JBs) being essentially ‘treaty bodies’–that is, executive treaty

implementation organs.

International legal scholarship (von Bogdandy, 2010; Schermers and Blokker, 2011;

Ulfstein, 2011; Ulfstein, 2012; Rodley, 2013) as well as political science, international re-

lations and foreign policy analysis (Barley and Tolbert, 1997; Peters, 1999) treat ‘treaty

bodies’,‘implementation bodies’,‘joint organs’and ‘international institutions’as related

but distinct terms. How they relate to and differ from one another depends on the powers

conferred on them. The extent of sovereignty transfer via ‘pooling and delegation’, the

bases of their own ‘agency’, their dependency on the ‘principals’will’, as well as their

implicit and elsewhere observed capability to develop a distinct institutional culture, a

preparedness to act and powers beyond what is formally conferred on them, all account

for the variation in treaty bodies’powers and performance (including as regards deci-

sion-making, law-making and dispute resolution).

With the proliferation and diversification of EU association agreements, scholarly in-

terest in the JIFs they establish has clearly been on the rise for the past two decades

(Mayhew, 1998; Phinnemore, 1999; Castellarin, 2019; Van Elsuwege and Chamon, 2019;

Dür and Gastinger, 2021; Petrov, 2021; Tyushka et al., 2021). With regard to the EU–

EaP3 AAs, however, the literature has nearly exclusively focused on the formal legal

aspects of institutional design and the functions of EU–Ukraine ABs such as the Associ-

ation Council, Association Committee, Sub-Committees, Parliamentary Association

Committee, or Civil Society Platform (Kostiuchenko, 2015; Tyushka, 2015;

Berezovska, 2016; Dragneva, 2018; Wolczuk, 2018), with some attention to their practi-

cal operation (Van der Loo, 2019b, pp. 109–11; Wódka and Cianciara, 2019; Van der Loo

and Akhvlediani, 2020).

1

The European Commission’sfirst report on the implementation of the Deep and Comprehensive Free Trade Areas

(DCFTAs)with Georgia, Moldova and Ukraine in 2016 refers to joint institutions of association as ‘implementation bodies’,

see: European Commission (2017, p. 16); see also: European Commission (2018).

2

See, for instance, the title of the OJEU’s legislation section that contains the Decision 1/2018 of the EU–Ukraine Associ-

ation Council, where it is published as part of ‘Acts adopted by bodies created by international agreements’:Decision 1/

2018 of the EU–Ukraine Association Council of 2 July 2018. OJEU, L 192/36–39, 18.07.2019, p.36.

Andriy Tyushka1166

© 2022 University Association for Contemporary European Studies and John Wiley & Sons Ltd