Importing EU norms: the case of anti-corruption reform in Ukraine

ABSTRACT

The research on the ‘normative power Europe’ has uncovered the rationale and mechanisms behind the export of EU norms, yet without a deeper understanding of how and why the EU norms are (not) imported to third countries. This article, therefore, examines the country-specific conditions affecting the course and the outcome of the import of EU norms through the case of the asset declarations, a flagship of anti-corruption reform in post-Maidan Ukraine. It reveals that despite the EU’s support and successful legal change, the reform implementation was limited due to its implications for domestic actors’ interests and power position. The clash of the EU norms with the prevalent norms, institutions, and informal practices of Ukrainian top officials has led to reform-imitation, and resulted in institutional layering and partial institutional innovation. This study demonstrates the locally conditioned success of the EU norms export and the limits of formal institutional change.

KEYWORDS:

• Ukraine
• European Union
• normative power
• norm import
• anti-corruption reform
• asset declarations

Introduction

For the EU as a normative power seeking to export its norms beyond its borders, the rule of law has become an important precondition for advanced cooperation with Ukraine, responding to the growing ambitiousness of their mutual relations but also increased visibility of shortcomings in the exercise of the rule of law in Ukraine (Burlyuk 2014). The fundamental flaws have persisted despite two revolutionary democratic openings in 2004 and 2014 (Burlyuk and Axyonova 2018; Yesmukhanova 2018). Systemic corruption (Transparency International 2017; World Justice Project 2016) was considered one of the main obstacles to sustainable reform in Ukraine (European Commission 2016). Therefore, the EU has been asking Ukraine to ensure effectiveness of the fight against corruption and to create and implement appropriate legislative and policy framework (European Commission 2010). The Revolution of Dignity and the outbreak of war in Donbas in 2014 have caused the erosion of established social structures and opened possibilities for a radical domestic change (Bátora and Navrátil 2016), which has amplified the influence of external actors, including the EU, to shape Ukraine’s political and economic reforms. In October 2014, the Ukrainian parliament adopted a package of anti-corruption laws and the new Anti-Corruption Strategy, which have outlined new directions for the anti-corruption policy in Ukraine, comprising creation of a comprehensive institutional architecture for effective corruption prevention, control and enforcement.

One of the flagships of the anti-corruption reform has been the new system of asset declaration for public officials. Generally, this tool promotes and enforces norms of transparency, integrity, and accountability of public authorities through double mechanism: firstly, it prevents, identifies, and sanctions conflict of interest, which can compromise public sector decisions, and secondly, it monitors wealth of public officials in order to dissuade them from illicit enrichment (OECD 2011). Compared to its predecessor, the new Ukrainian system of e-declarations has significantly increased its transparency and deterrence thanks to creation of new anti-corruption institutions. These unprecedented legal changes were result of effective cooperation and pressure of international and domestic reform-oriented actors.

However, multiple attacks and manipulation of the reform process have exposed the strong resistance to the implementation of the new anti-corruption measures. How does one explain this domestic development against the continuing efforts of the EU to promote the rule of law in Ukraine? What were the domestic factors that have influenced the application of the new anti-corruption policy? And how have they affected the course and the outcome of the EU’s norm import?

This article seeks to answer these questions by tracing the reform of the asset declaration system in Ukraine during 2014–2017. It argues that in order to evaluate the success of the EU norms export in terms of functional and qualitative change in respective policy sector, we need to study the process of reform implementation, which overcomes the formalistic focus on the legal change. Therefore, we zoom in and follow the reform as the process of adaptation of new norms into local environment, in which the EU norms encounter the local norms. We study how they challenge the status quo and how they are possibly adapted, rejected, or resisted. Equally, we identify key actors of reform implementation and underlying norms structuring their behaviour. We argue that the discrepancy between the adoption and implementation of the asset declaration reform is the consequence of the clash between the EU-promoted norms, and the local normative orders and informal practices, which proved resilient to formal legislative changes. This reveals the path-dependency of social norms and political practices, which mirror interests and power of influential domestic actors. The clash has provoked the domestic actors’ resistance to the new legal and institutional arrangements and resulted in partial reform implementation and the process of institutional layering (Olsen 2010), in which the newly adopted rules coexist with previous norms and practices.

This article aims to contribute to the scholarship studying the import of EU norms, which problematizes the EU-centric approach to the EU’s normative power and sheds light on the receiving end of the EU’s norms export – the ‘norm receiver’ (Björkdahl et al. 2015). While numerous contributions on the EU’s normative power have revealed how the EU norms are exported to third countries (Manners 2013; Whitman 2013), the empirical studies on why and how the EU norms are imported – and under what conditions – have been rather scarce (see Björkdahl et al. 2015; Chaban, Masselot, and Vadura 2015; Gordon and Pardo 2015; Nicolaïdis and Whitman 2013). Following the approach of Bjӧrkdahl et al. (2015), we suggest that understanding the local environment of norm-takers is key to evaluate whether and how the EU norms are imported and what are the outcomes of the EU’s normative power. The receiver of the EU norms is situated in the centre of our analysis, which opens the door for micro-level examination of domestic actors and their interests, as well as that of the local normative environment and its position vis-à-vis the EU norms.

The article draws on qualitative data collected from primary and secondary documents, as well as 12 semi-structured interviews with EU officials and with Ukrainian and international experts on the rule of law reform in Ukraine. The article proceeds as follows. The first part situates the study in the existing literature; it justifies the shift of the focus on the norm-receiver and outlines the institutional perspective for our analysis. The second part elaborates the EU’s normative efforts in Ukraine, and explains the specific context of the anti-corruption reform. In the third part, we analyse the case study of the asset declaration reform through detailed tracing of the implementation process. The fourth part defines the key domestic factors that have influenced the realisation of the reform and evaluates its results. The conclusion discusses the result of the EU norm import and implications for the EU’s normative power in both research and policy areas.

Discovering the norm-receiver: how and why the EU norms are (not) imported

The conceptualisation of the EU as a normative power (Manners 2002) has inspired many scholars to study the export of EU norms (Manners 2013), while provoking debate about its relevance and applicability at the same time (Diez 2005, 2013; Forsberg 2011; Sjursen 2006). The criticism of the EU-centric analysis of the EU’s normative nature, its principles and goals, and of the missing empirical approach has led to the ‘third wave’ of theorising the EU’s normative power. This approach has underlined the need for a greater self-reflectivity of the EU as a normative actor, and called for a critical evaluation of its legitimacy, effectiveness, and impact on other actors (Nicolaïdis and Whitman 2013; Whitman 2013).

Driving on this critical shift, we believe it is necessary to confront the EU’s normative ambitions with the outcomes it achieves and with actual responses of ‘norm receivers’. While acknowledging the contribution of Manners’ work in highlighting the ideational and normative aspects of the EU’s foreign policy, this work focuses on the normative impact of the EU’s action and seeks to identify the factors influencing the results of the EU’s norm export on the side of the ‘norm receiver’. This approach follows the recent studies on the normative power Europe (Björkdahl et al. 2015; Chaban, Masselot, and Vadura 2015; Gordon and Pardo 2015; Nicolaïdis and Whitman 2013), which have reversed the focus of the analysis from the EU to the ‘norm-receiver’ in order to understand ‘when, how and why EU norms are imported’ (Björkdahl et al. 2015, 1). Discovering this ‘terra incognita’ responds to the growing need to realise the role of the norm-takers in the process of norm export (Chaban, Masselot, and Vadura 2015), since it is the complex nature of ‘the local’ and of its political, social, and cultural structures and contradictions, that determines whether the EU norms will be accepted or rejected (Gordon and Pardo 2015; Kinnvall 1995). A closer analysis of the domestic context is thus a sine qua non for understanding a variety of responses to the EU’s normative power across countries, time, and issue areas (Delcour and Wolczuk 2015). These responses, in turn, influence also the EU as a normative power.

So how do partner countries react to the EU norms export and why? Bjӧrkdahl et al. (2015) suggest the norm-takers’ response varies on the spectrum from norm adoption and adaptation to resistance and rejection. This is conditioned by their domestic circumstances, such as norm resonance or conflict, cultural filters and perceptions, material interests and institutions, or trading relations. Scholars in the field of norm diffusion account for the norm-receivers’ reaction mostly through the domestic adoption environment, and domestic actors supporting or opposing the normative change (Acharya 2004; Börzel and Risse 2009; Checkel 1997, 1999; Finnemore and Sikkink 1998). In order to understand how the norm import takes place, this study focuses on the role of domestic actors and institutions that structure their behaviour. This is justified by several reasons.

Firstly, the domestic actors are not merely passive translators of norms and laws, but they actively participate in shaping the domestic change (Ademmer et al., 2016). The actor-oriented approach allows to study how the implementation of a reform ‘is done’ in practice, or how it is obstructed, ignored, or adapted to local conditions. The disconnection between the countries’ geopolitical choices and de facto domestic change observed by scholars studying developments in the countries of the Eastern Partnership confirms that domestic actors are central agents of reform (Ibid.). Furthermore, we suggest that in order to make sense of the actors’ behaviour, we need to understand the prevalent institutions that work as ideational and material resources guiding their action. As an integral part of our analysis, institutions are understood as ‘a set of prescribed behavioural rules and practices embedded in structures of meaning and resources’ (Olsen 2010, 108). They consist of both formal rules, such as laws and constitutions, and informal constraints embodied in unwritten codes of conduct, traditions, or taboos, which structure social interaction by restraining and enabling actors’ behaviour (North 1990).

Secondly, domestic actors and institutions are in the centre of our analysis in order to understand the often-observed gap between institutional change of formal legal structures and the practical implementation of reforms (Freyburg, et al. 2011; Lavenex and Schimmelfennig 2009). In the context of the European neighbourhood policy (ENP), it is mostly laws and formal institutions that have been the object of reform (Mendelski 2016). However, as argued by Lavenex and Schimmelfennig (2009), ‘whereas the EU may be quite successful in focusing its external relations on its rules and even in inciting third countries to adopt EU rules into domestic legislation, its impact is much less visible at the level of rule application’ (p. 809). This study thus aims to respond to the need to investigate the discrepancy between norm adoption and norm application, and to empirically evaluate the success of the EU norms export.

In order to grasp how the EU-exported norms are imported locally, we use the institutionalist perspective, which is sceptical of radical institutional change and instead, focuses on informal constraints embedded in historically developed rules, organisational practices and normative principles (North 1990; Olsen 2010). Largely missing in the research on the EU norm import, the institutionalist approach offers a useful view on the normative change, in particular in the field of the rule of law, whose understanding merely through formal institutions limits the conceptual space for treating it as a fundamentally cultural and political problem (Burlyuk 2015; Carothers 1998; Kleinfeld 2012; Natorski 2013). This bears two important implications for the rule of law reforms. Firstly, the underlying condition for the rule of law is limiting the power of the state, while it is the government itself, who must take the necessary measures (Kleinfeld 2012) what necessarily disturbs established power relations. As a result, the main obstacles to the rule of law are usually not technical or financial, but rather political and human (Carothers 1998). Secondly, the implementation of the rule of law is largely a question of norms and culture, which determine the relation between the state and the society, and between citizens themselves. It is argued that ‘transformation and systemic change is something that is only to a limited extent a matter of law-making’ (Elster, Offe, and Preuss 1998, 18). By contrast, it is cultural patterns, identities, legacies, and practices entrenched in the ‘habits of the hearts’ and ‘frames of mind’ of masses and elites that need to be changed (Ibid.). Prevalent social norms are therefore key for the success of the rule of law reform, particularly those of political and business elites, civil servants, and legal professionals. These insights are further elaborated in the empirical analysis, in which we emphasize the implications of the reform for significant political actors, as well as for the prevalent institutions structuring their behaviour.

Exporting the rule of law: the case of anti-corruption reform in Ukraine

In the EU-Ukraine contractual agreements, the fight against corruption has been largely understood as a precondition for the consolidation of the rule of law, which has been crucial for cooperation in areas of justice, freedom and security. This aspect has been increasingly present in the EU-Ukraine visa liberalisation dialogue since 2008. The EU’s requirements, albeit rather general at the beginning, gradually asked Ukraine to adopt and implement new anti-corruption legislation, including the reform of asset disclosure system for public officials, backed by independent institutions prosecuting corruption crimes (European Commission 2015). The popular expectations connected to the prospect of visa-free regime have compelled the government to fulfil the EU’s conditions. Even though the asset declarations are formally not part of EU acquis, they have become ‘a de facto standard’ for EU candidate countries, relying on relevant international standards of the UN, the Council of Europe and the OECD (OECD 2011). In Ukraine’s case, the EU insisted on this specific reform in order to prevent conflict of interest and abuse of political power for private interest embodied by Yanukovych’s presidency, even more intensively since the fight against corruption has become one of the key requirements of the Revolution of Dignity. Since 2014, the EU’s new financial assistance instruments have bolstered these anti-corruption conditionalities – both the State Building Contract (355 million EUR) and the Macro-Financial Assistance (3.4 billion EUR) have included provisions on the asset declarations. In the immediate aftermath of the economic and political crisis following 2014, the EU’s macro-economic conditionality together with the visa liberalisation process have served as an effective leverage to advance the reform of the asset disclosure and anti-corruption institutions. This has been possible also due to involvement of new EU bodies supporting Ukrainian reforms since 2014 – the Support Group for Ukraine and the EU Advisory Mission, which have provided expert assistance in drafting the laws, setting-up the new anti-corruption institutions, or defining conditions applying to the EU’s financial assistance (European Commission 2016). Several experts reported that the EU stayed the driving force behind these reforms, as it represented the ‘bigger European dream’ (Interview 1, 2, 5).

Thanks to these innovative instruments and coalition with other international partners, such as the EBRD, the IMF, the US, and the OECD, the EU has gained substantial leverage not only over Ukraine’s structural economic reforms, but also over the improvement of the rule of law. Preventing and combatting corruption has been among key areas of the EU-Ukraine political dialogue reviewed yearly through the Association Agenda, which explicitly called for ensuring transparency and verification of the asset declaration system (EU-Ukraine Association Agenda 2015). Together with the domestic pressure from the public and the civil society, the set of conditionalities from the EU and other donors have created the ‘sandwich strategy’ that pushed the Ukrainian Parliament to adopt the Law on Prevention of Corruption and the Anti-Corruption Strategy for 2014–2017, including the reform of the system of asset declarations.

The key shift can be summarised in five points. Firstly, the scope of declarations has been significantly broadened and required information on the assets officials use or benefit from (Kotliar 2017a; UNDP 2016), as well as the amounts of cash, which allowed identifying illegal sources of enrichment in the Ukraine’s grey economy (Interview 1). Secondly, the number of declarants has been expanded to include all persons performing the functions of the state or local self-government (OECD 2015), including the heads of key public sectors, such as healthcare, or education, notorious for deeply entrenched corruption. The third major change concerned the process of declaration – the officials were obliged to submit an electronic declaration, which became automatically published in the central electronic register, so it could be compared with other public registers. Every citizen was thus able to access the declarations online immediately, which represented a radical step towards transparency and public oversight (Kotliar 2017). Fourthly, the deterrent function of the system has been strengthened: stating false information or failure to disclose was penalised with stronger forms of administrative and criminal liability, including imprisonment for up to two years, and disqualification to hold respective position (Kotliar 2017a). Fifthly, and probably the most importantly, the system included control mechanisms through three newly-established anti-corruption institutions, which enabled effective criminalisation of misconduct in officials’ obligations to disclose their assets, as well as of cases of corruption and illicit enrichment detected through e-declarations. While the National Agency for Prevention of Corruption (NAPC) was responsible for ensuring the comprehensive process of declarations verification, control of potential conflict of interest and monitoring of public officials’ lifestyles, the National Anti-Corruption Bureau of Ukraine (NABU) led the investigation of criminal corruption offenses. This law-enforcement agency worked closely with the Specialised Anti-Corruption Prosecution Office (SAPO), an independent unit within the Prosecutor General’s Office of Ukraine, which was responsible for oversight of NABU’s criminal investigation and for public prosecution in court. Furthermore, the reform has foreseen the creation of the specialised anti-corruption court to ensure independent and prompt review of the cases. The legal change has thus filled several gaps that made the former asset declaration system ineffective – it has increased the transparency and decreased the possibility for potential external interference (Interview 1); it has enhanced the deterrence function (Interview 2); and created basis for effective enforcement of the new rules.

The significance of the new system became apparent during the first rounds of declarations in 2016 and 2017. The fact that the majority of the declarants – over one million – submitted their declarations, suggest that the improved transparency and credibility of the enforcement mechanism has served as an effective leverage (Interview 2, 3, 7). Yet, while the reformist drive was considerable during the first two years of law drafting and institution building (2014–2015), the implementation phase revealed internal opposition to reform, especially to the genuine independence of the anti-corruption institutions and the verification process of e-declarations. The formalisation of ‘rules of the game’ through criminalising corrupt behaviour has disturbed existing informal arrangements and vested interests of ruling elite. From the outset, there were several attempts to limit, block, or damage the reform: from the delayed launch of e-declarations, manipulation of the system’s technical properties, boycotting the cooperation with relevant law-enforcement agencies, to direct reprisal against reform agents. The next section describes these steps in order to identify the main actors and structural problems behind these obstructions.

From adoption to implementation: one step forward, two steps back

Firstly, the newly established anti-corruption institutions faced significant problems in fulfilling their tasks effectively and independently, which reduced the deterrence function of the entire system. The full-fledged operation of the NAPC was delayed by a year due to the political struggle over the selection of NAPC’s leadership (Marusov 2017). When the NAPC finally introduced the e-declaration system on 15 August 2016, it lacked the possibility to start criminal investigations and prosecution due to the missing certification on data protection. This was criticised as a ‘window-dressing’ (Transparency International Ukraine 2016) and received condemnation by the EU and other international partners (EEAS ; UNIAN, 2016; Interview 8). According to several reports, the alleged ‘technical problems’ were the result of intentional interference by the authorities, particularly due to political dependence of the NAPC on President Poroshenko and the Cabinet of Ministers (DIF ; Marusov 2017, Interview 2, 4, 8). These political infightings have prevented the NAPC from acquiring guidelines for automatic verification of e-declarations at the end of 2017, which meant that the declarations were being checked ‘manually’, leaving room for manipulation and limiting the number of cases sent to NABU for investigation. As of October 2017, the NAPC has managed to verify only 61 out of around 1.2 million e-declarations submitted, what earned strong criticism by the EU (European Commission 2017a, 2017b).

The NABU has also been an object of political contest, especially in relation to the General Prosecutor’s Office (GPO). According to several interviewees, the GPO has been trying to publicly counter-balance NABU’s work to prove its ability to manage corruption prosecution and show futility of an additional institution (Interview 2, 6). Keeping the primacy in fighting corruption has been crucial for the GPO in order to secure its dominant position in Ukraine’s politics with direct links to President of Ukraine (Interview 2; OECD 2017). As a result, several NABU’s independent activities were thwarted by the GPO, which resulted in an intra-institutional conflict and investigation of each other’s alleged wrongdoings (AntAC.). Moreover, NABU’s work has been endangered from the Parliament through several draft laws aiming to curtail its work and to dismiss its leadership (Gressel) and from the courts, which resisted effective cooperation with the new institution. As a result, out of 165 indictments by NABU as of December 2017, only 107 cases got to courts and 19 were convicted (NABU 2017).

Detachment of the anti-corruption reform from respective sectors of the rule of law, such as the judiciary and the prosecutor’s office, posed a significant obstacle for the effectiveness of the new anti-corruption institutions. Interviewed experts emphasised that without independent courts providing fair trials, the efforts for the e-declaration system will fail rapidly (Interview 1, 2, 3, 5, 6, and 7). Both the Government and the President were deemed to benefit from this situation, turning their responsibility to fight corruption into blaming the new anti-corruption institutions (DIF a), which were seen as competitors to the traditional state institutions, what further curbed their independence and effectiveness. The realisation of the anti-corruption policy thus revolved more around intra – and inter-institutional battles than around tackling real corruption cases.

The political authorities have also taken measures to intimidate pro-reform civil society organisations. On 27 March 2017, President Poroshenko signed amendments to the Law on the prevention of corruption, obliging the anti-corruption activists, NGOs, and investigative journalists to declare their assets, similarly to the public officials (Coynash). Given the context and timing of this proposal, it has raised concerns over the reprisal against the civil society for their strong advocacy of the anti-corruption reform (Interview 5, 7, 12). This move has been accompanied by a series of discrediting attacks against the anti-corruption NGOs and their employees (European Commission 2017b). As a result, the public debate has diverted from scrutinising the corruption of public officials to selective accusations against anti-corruption activists (Interview 2, 7). Despite the EU’s calls to withdraw this amendment (Interfax Ukraine 2017), it came into force since 1 January 2018.

Furthermore, the active opposition towards the comprehensiveness of the e-declarations was demonstrated by the Parliament adopting additional legal amendments, which included exempting certain groups from the obligation to declare their assets (the military personnel), reducing the scope of information filed in declarations, the level of legal responsibility, and civic control over the activities of anti-corruption institutions (Khavronyuk 2017). The Parliament’s resistance to enact a narrower immunity for its members and to hand over suspected deputies has blocked the start of criminal investigation based on their e-declarations.

The succession of events undermining proper operation of the system suggests that the legal change has disturbed established rules and practices. The delaying and manipulating the process, detaching the reforms, diverting attention from political corruption to anti-corruption organisations, delegitimising the anti-corruption institutions and activists all casted doubt upon the genuine will to implement reforms by respective authorities. As a result, the EU has increasingly voiced its disillusion and criticism of insufficient progress and rollback in the anti-corruption reform (European Commission 2017b).

Beneath the institutional iceberg: the role of domestic actors and institutions

How can we explain this gap between reform adoption and implementation? What were the sources of resistance to implement formally adopted norms and measures? Who were the main actors obstructing their application, and what interests were at stake? A common response to partial anti-corruption reform has been ‘the lack of political will’ (Council of Europe 2017; OECD 2015, 2017; Interview 4, 9, 10, 11). This answer, however, lacks deeper understanding of the sources and the incentive structure that shaped behaviour of the relevant political actors. In the following section, we, therefore, analyse the role of key actors, whose compliance has been crucial for the success of the anti-corruption pledges, namely the members of the Parliament, the President, and the GPO. We look at the background motivation for their behaviour, and identify the existing practice of corruption, illicit enrichment, and supremacy of personal loyalties as important drivers for their reaction. These informal institutions and ties have both historical and sociological roots, whose thorough explanation is beyond the scope of this study (see Fisun 2016; Kuzio 2011; Roberts and Ortung 2015). However, several aspects need to be highlighted in order to understand their role during the reform implementation.

Firstly, the general setup of political institutions in Ukraine is heavily influenced by the state capture, which has developed along with building of Ukrainian state in early 90s (Dragneva & Wolzcuk, 2015). Under the ex-communist elites in power, the political institutions have become mostly vehicles for private interests and rent-seeking rather than for delivering public good (Ibid.). At the same time, as a result of uncontrolled privatisation, the economic power was concentrated in hands of few wealthy oligarchs, who have exercised significant political clout over all branches of power. Often based on personal connections and political affiliation, the privatisation has eroded the boundary between ‘national’ and ‘private’, and reinforced patronal relations and personal loyalties (Kolisnichenko, 2007). This has led to tight interconnection of the political life with the business interests and creation of the patronal pyramids of corruption.

One of the bottlenecks for reform implementation was the Ukrainian Parliament, which repeatedly suggested amendments that curbed the original system of asset declarations. Several scholars observe the distorted nature of Ukrainian political parties, in which conflict of interest is widespread (Fisun 2016). Kuzio (2011) notes that rather than representing particular socioeconomic groups with political programmes, the political parties in Ukraine are ‘political projects’ of oligarchic groups, aiming at achieving power and access resources, what results in capture of state institutions. The vested interests significantly affect not only the legislative decision-making (Council of Europe 2017), but also the filling of the parliament. Thanks to the broad parliamentary immunity, the parliament has become a safe haven, serving as a cover-up for high-level corruption (Council of Europe 2017; OECD 2015). Several interviewees confirmed that the conflict of interest and illicit enrichment have become ‘the normal’ in Ukrainian politics (Interview 3, 5, 7), explaining the gap between the official income and wealth declared in the e-declarations (Interview 3). This practice has prevented high-level politicians from genuinely supporting anti-corruption measures (Interview 5), including the full implementation of the asset verification system, which would mean that ‘almost all MPs will be under prosecution or will have to show up at NABU’ (Interview 4).

Corruption behaviour, however, has been a problem also at lower echelons of politics and the public sector, where bribes have been a means to gain socio-economic advantage such as employment, or influence on state decisions (Roberts and Ortung 2015). One interviewee noted that it is almost impossible to enter the office without political support or money, which obliges the newcomers to do something in return (Interview 4). This preserves the ‘self-perpetuating cycle of corruption’ among public officials who need to do both – make back the money they paid for obtaining their position and secure a wage that enables their living (Roberts and Ortung 2015). A resulting corruption pyramid and ‘ties that bind’ strengthen the accountability not to laws and constitutional order, but to political allies and patrons, instead.

The patronal nature of Ukrainian politics is embodied by competing party networks, which have influenced the informal struggle over the control of key state positions (Fisun 2015). The asset declaration reform has been affected by competition over the control of respective anti-corruption and law-enforcement bodies, in particular between the President’s party (Poroshenko Bloc), which kept influence on the NAPC and GPO, and the People’s Front of former Prime Minister Yatsenyuk dominant at the Ministry of Justice (Interview 1). Several scholars (Fisun 2017; Jarábik and Minakov ; Leshchenko 2016) observed progressive consolidation of power of President Poroshenko, who has become the key ‘veto player’, successfully expanding his formal and informal control over strategic political institutions. Other sources admitted that the resistance towards the functional asset declaration system was mainly from the side of the President and the governing elite, as well as from the politically dependent law-enforcement bodies, such as the GPO and courts (OECD 2017; Interview 1, 7, 9, 10, 11). This indicates that the new laws and institutions have fundamentally interfered with the existing institutional structure and power equilibrium, what has affected the pace and effectiveness of the reform. In this context, creating completely new institutions embodying new rules and practices, such as the NABU, has turned out to be a double-edged strategy: even though it was easier to create new institutions than to reform existing ones, they faced multiple challenges as they disrupted existing inter-institutional power balance. Consequently, these ‘isolated islands’ lacked support and legitimacy in the existing institutional environment, which endangered their sustainability.

As a result, we suggest that the reason for protracted and partial implementation was neither the general setting of the new e-declaration system, nor the newly-formed institutions, whose setup has considerably increased the standards of transparency and accountability. On the contrary, their operation depended significantly on the traditional state institutions, such as the Presidential Administration, the Parliament, the GPO and the courts, who wielded significant informal power to protect their interests. The reform imitation and manipulation in the favour of the ruling elite has thus showed the limits of the EU’s technocratic approach to adopt and implement new legislation. This mirrors the nature of the rule of law reform, which requires not only the formal institutional change, but equally the transformation of embedded norms, informal practices and the existing division of power.

Conclusions

The case of asset declaration reform has shown that whereas the adoption of the anti-corruption reform in Ukraine was largely successful thanks to domestic demand and conditionality from the EU and international partners, its implementation remained limited due to implications for entrenched power relations and practices among affected political actors. Efforts to keep their power, access to benefits and to avoid possible prosecution have undermined the EU-promoted norms. In spite of the EU’s normative aims and multiple support strategies to advance the reform, our data demonstrate that it was not able to overcome the resistance and defence of the status quo by domestic actors, namely the members of the Parliament, the President, the GPO and the judiciary. Neither the EU’s unprecedented financial assistance could surmount their vital interests, as ‘money cannot buy a reform, especially in the anti-corruption area’ (Interview 28). Without the domestic ownership and leadership, the EU’s possibilities of influence remained limited (Interview 10, 11). Informal practices such as corruption, neopatrimonialism, and conflict of interest have thus proved resilient to formal change of rules. As a result, we observed the institutional change as a process of friction between the old and new norms and practices, producing contestation between different domestic actors and their vision of appropriate political order. These findings prove that the trajectory and the pace of the EU norms import has been conditioned by a set of domestic factors and contribute to explain the gap between formal adoption of the EU’s norms and their practical application.

Consequently, the reform has brought mixed results. While the discrepancy between the normative foundations of the old and new systems and between the formal and informal rules has caused normative clash and resistance to practical implementation, the formal changes have secured partial institutional innovation. The combination of newly introduced and previous practices and normative understandings has led to the process of institutional layering and ‘sedimentation’, in which new and old norms and institutions coincide, even if constituted on different normative principles (cf. Olsen 2010). This has allowed intra-institutional learning and incremental change within the remits of established institutions. Our observations thus suggest that instead of a direct ‘norm import’ and a complete overhaul of the existing normative order, the EU norms export has produced only partial institutional change.

These outcomes need to be interpreted considering Ukraine’s post-Maidan situation, in which political actors opted for strategies to balance the internal and external pressure for democratic reforms through keeping the ‘partial reform equilibrium’ (Kuzio 2011). In the domestic context, this has caused decoupling of formal institutional change from the actual organisational practice, allowing to accommodate the interests of the powerful domestic actors. In relation to the EU and other international partners, it has led to reform imitation – producing signals sufficient to trigger short-term support and to meet the formal requirements of external donors, without functional and effective change (cf. Andrews 2013). Both strategies were important to maintain the government’s legitimacy both internationally and domestically, while keeping the domestic power equilibrium. Several deficiencies of the first Poroshenko’s presidency were redressed after the election of Volodymyr Zelensky, whose campaign had a strong anti-corruption drive. In June 2019, the e-declarations for anti-corruption activists were ruled unconstitutional and the High Anti-Corruption Court begun its operation in September 2019. The effectiveness of the NAPC has upgraded thanks to the automated verification system. Adjudication of the high-level corruption cases brought to courts by NABU, however, has been proceeded slowly and tangible results have been still limited. The anti-corruption reform and institutions have remained fragile, and challenges with fighting the culture of impunity persist.

The trajectory and the outcome of the anti-corruption reform in Ukraine bear several implications for the research on the EU’s normative power and for strategies of exporting its norms. Firstly, this case study confirms that the concept of the ‘normative power Europe’ does not account for simple transference of the EU norms to third countries. Instead, the EU enters different political and normative environments, operating according to specific power distribution between the political actors, and between the state and the society. As shown in our research, the prevailing domestic normative prescriptions, rules, and practices, as well as the division of power between domestic actors tend to be powerful attributes immune to external interventions. The power of the EU is therefore limited in completely transforming the path-dependent domestic formal and informal institutions profitable for powerful domestic actors. This article thus contributes to a growing body of research pointing to the locally conditioned effectiveness of the EU’s normative power.

Secondly, similarly to Bjӧrkdahl et al. (2015), this study confirms that the responses to EU’s normative power do not always follow the one-way continuum from adoption to implementation; these are rather ‘ideal types’, which can be re-ordered and mixed. The legal adoption can coincide with partial implementation, in which formal compliance blends with previous practices. Rather than expecting clear-cut results of the export of the EU norms to third countries, this article revealed that the new norms coexist with the old ones, likely resulting in hybrid forms of institutional layering, especially in policy areas that display conflict between formal and informal rules and threaten interests of the powerful domestic actors.

Finally, the results of the asset declaration reform indicate that the normative efforts of external actors, such as the EU, are limited in different normative environment, where informal rules prevail over formal ones. The change of the legal framework is a strong foundation for the normative change, yet, without strategies targeting the local cultural specificities and political infightings, the impact of such technocratic approach is limited. To achieve effective results, the EU needs to support the formal institutional change with socialisation strategies targeting informal norms and institutions. Moreover, its assistance to domestic actors has to diversify beyond the central government institutions and enhance capacity of local governments, professional organisations, the civil society and the media. The mission of the EU Anti-corruption Initiative created in June 2017 is a proper step in this direction. These results provide a basis for further research on the effectiveness of the EU’s normative power as well as of the EU’s long-term strategies to address prevalent norms and practices in third countries.

List of interviews

Table

	UNDP Ukraine, senior anti-corruption expert (Kyiv, 12 July 2017)
2.	UNDP Ukraine, senior expert (Kyiv, 14 July 2017)
3.	Anti-corruption activist^1 (Kyiv, 13 July 2017)
4.	Danish Embassy in Kyiv, adviser (Kyiv, 17 July 2017)
5.	EU Delegation in Kyiv, senior official (Kyiv, 14 July 2017)
6.	EU Advisory Mission, senior adviser on anti-corruption (Kyiv, 19 July 2017)
7.	Anti-Corruption Action Centre, legal expert (Kyiv, 17 July 2017)
8.	EU Delegation in Kyiv, sector manager (Kyiv, 14 July 2017)
9.	EU Anti-Corruption Initiative, senior anti-corruption adviser (Kyiv, 27 July 2017)
10.	Support Group for Ukraine (DG NEAR), senior adviser (Brussels, 30 January 2018)
11.	European Policy Centre, senior policy analyst (Brussels, 1 February 2018)
12.	Ukraine Think Tanks Liaison Office in Brussels, senior expert (5 February 2018)

Acknowledegement

Support from the project EU3D funded by the European Union’s Horizon 2020 Research and Innovation Programme Grant Agreement No. 822419 is gratefully acknowledged. The author would like to thank prof. Jozef Bátora and three aonymous reviewers for their valuable comments on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The organisation of the interviewee is not specified in order to comply with his/her explicit wish for enhanced anonymity.