Back to the Pre-Lisbon era? Why the Provisional Application of the EU-Mercosur Agreement is so Controversial

On 17 January 2026, the EU and Mercosur signed an ambitious trade and cooperation package composed of two instruments: a Partnership Agreement (EMPA) and an Interim Trade Agreement (iTA). After more than 20 years of negotiations, this deal has been praised as a major stepping stone for extending the EU’s economic and geopolitical influence worldwide, particularly in a context of a weakened WTO and aggressive US trade policies. However, this Agreement has also been strongly criticized, in particular for its potential impact on European farming and sustainable development.

As is authorized by both international law (Article 25 VCLT) and EU law (Article 218(5) TFEU), the signature of the EU-Mercosur deal should be followed by a provisional application of the iTA, which is the instrument in the package specifically designed to apply immediately after signature. However, the European Parliament (EP) created a major political crisis when, instead of voting to approve the conclusion of the EU-Mercosur iTA and EMPA, it postponed its vote and instead referred the Agreements to the Court of Justice of the European Union (CJEU) for an opinion. This delayed any vote by at least a year, until the CJEU delivers its opinion, and confronted the other EU institutions with a stark dilemma: should they still apply the Agreement provisionally even though the EP has not yet voted on the text?

Given that this situation has put at the forefront of the debate a mechanism which is often technical and not necessarily well known, greater clarity as to the details of the EU provisional application procedure is needed. Contrary to the idea that provisional application in such cases is standard EU practice, it is essential to recall that, by launching the provisional application of the EU-Mercosur Agreement in the upcoming months, the Council would be breaching a custom followed at least since the 2009 Lisbon Treaty of waiting for the EP’s vote to apply a trade agreement provisionally. Moreover, it must be emphasized that the Decision to provisionally apply the iTA, which is a Council (representing EU Member States) act, has already been taken in principle, currently leaving the Commission (in charge of enforcing EU trade agreements) with little to no margin of appreciation as to whether to proceed with this procedure. 

Provisional Application Without EP Approval: A Break with Longstanding Practice

Since the conclusion of the Lisbon Treaty, a trade agreement may not be concluded without the EP’s approval (Article 218(6)(a)(v) TFEU). Nevertheless, Article 218(5) TFEU allows the Council to choose to provisionally apply an agreement once it has been signed and before it has been concluded. In practice, most clauses of an EU trade agreement can be subjected to provisional application, making this procedure a very powerful tool at the disposal of the Council.

Because launching provisional application of a trade agreement without EP approval could be problematic in political terms since the Parliament is now normally a co-decider in trade policy matters, provisional application has until now mostly been used to overcome the lengthy and uncertain process of ratification by national parliaments of mixed trade agreements (agreements including Member State and EU-only competences). In such cases, EU-exclusive parts are applied provisionally, whereas mixed parts are left in standby. The co-decision brought about by the Lisbon Treaty has led to the development of a custom whereby the Council has generally accepted to wait for the EP’s vote before launching the provisional application of a trade agreement. This custom, still reflected in EU official documents (see section “Putting EU trade policy into effect”), has been observed with very few exceptions (for instance that of the EU – UK Trade and Cooperation Agreement).

Therefore, the fact that the Council has now decided to provisionally apply the EU-Mercosur iTA without parliamentary approval explains why this situation is viewed by some, and in particular by the EP, as unacceptable. In addition, because the EU-Mercosur deal is a controversial text, in particular because of its potential impact of European farming and on the environment, it could therefore be later rejected by the EP or invalidated by the CJEU, which would create massive problems if it were to have been provisionally applied beforehand for a long period of time, disrupting supply chains, contracts and IP rights established on the basis of the Agreement. Such a situation would also take a huge toll on the EU’s credibility vis-à-vis Mercosur countries and other countries, such as India or Indonesia, with which trade agreements are being finalized and should soon be subject to the same procedure of provisional application.  

Given the controversies surrounding the provisional application of the EU-Mercosur Agreement, MEPs and NGOs throughout Europe have therefore called for this procedure to be postponed. But who can decide to do so, and under what conditions?

The EU-Mercosur Agreement will Apply Provisionally… Full Stop? 

For the EU-Mercosur agreement to apply provisionally, a Council Decision must formally express the EU’s willingness to proceed with provisional application (Article 218(5) TFEU). In this regard, it must be underlined that the Council already approved the provisional application of the EU-Mercosur iTA in the same document by which it has approved its signature. This fact is public and relatively well known. However, what may be less clear is whether this approval means that the iTA will apply provisionally, full stop, or if this merely authorizes the European Commission to choose the date from which to start its provisional application. 

A superficial reading of the EU-Mercosur iTA may lead one to conclude that the Commission may still decide to delay the provisional application of the Agreement. Indeed, its Chapter 23 on General and Final Provisions requires, in addition to the completion of the parties’ respective internal procedures (Article 23.3(1)), that a confirmation be sent in order to launch the Agreement’s provisional application (Article 23.3(2)). As provisional application was only approved internally by a Council Decision but not yet confirmed to Mercosur States, one may therefore conclude that the Commission (in charge of the EU’s external representation according to Article 17(1) TEU) is still competent to decide whether to launch the provisional application of the iTA, by quickly notifying the EU’s confirmation or by delaying it until the EP has voted on the text. 

However, such interpretation would be misguided. Indeed, a close reading of Article 3(1) of the Council Decision authorizing the provisional application of the Agreement leads to the conclusion that it does not frame provisional application as an option to be used at the discretion of the Commission, but as a mandatory step that must be taken as soon as one or more Mercosur States have confirmed their own willingness to launch the provisional application of the Agreement: “the ITA shall be applied on a provisional basis […] as from the first day of the second month following the date on which […] that Signatory MERCOSUR State or those Signatory MERCOSUR States […] confirm their agreement to apply the ITA on a provisional basis.”

Therefore, the wording of the Council Decision does not leave the European Commission a margin of interpretation regarding when to provisionally enforce the iTA, which is, in fact, a situation far from exceptional given that the Council generally retains a high degree of control over every step of this highly political procedure.

This interpretation of the Council Decision is substantiated by the fact that EU Member State representatives have publicly expressed their willingness to see the Agreement be provisionally applied quickly. The Council Press Release following the signature of the EU-Mercosur ITA reads: “Under the decision adopted today, the EU will sign the Agreement and apply large parts of the political and cooperation chapters on a provisional basis, pending completion of the ratification procedures”. After the Agreement’s signature, the President of the European Council also publicly asked the Commission to “put […] the provisional application of the partnership agreement, into practice”.

Conclusion

As of now, the EU-Mercosur iTA will in all likelihood be applied provisionally before the European Parliament has been allowed to vote on the text. This procedure will be effective once one or more Mercosur States have confirmed their willingness to launch the provisional application of the Agreement. Therefore, until then, the Council may still decide to reverse course, which would have to be done through a modification of its Decision authorizing the provisional application of the Agreement. At this stage, lobbying the Commission not to launch the provisional application is probably misguided, as its hands are currently tied to the Council’s choice. 

The current EU-Mercosur situation shows that provisional application is not merely technical: test cases such as this one demonstrate how, as a powerful tool with few backstops, it can raise legitimate questions about democratic accountability and the absence of strong procedural safeguards associated with its use. The current situation, in which Member States’ governments are able to legally bypass the European Parliament in order to apply a comprehensive and consequential trade agreement for several months or years, is reminiscent of a pre-Lisbon era of EU institutional balance, and will undoubtedly give fuel to anti-EU discourses pointing out this marked democratic accountability deficit.

As the unfolding of these events is still in progress, it remains to be seen whether the Council will acknowledge these risks and, maybe, reverse course.