Can the Commission Launch the Deal Despite the Court?
On 22 January 2026 — one day after the European Parliament voted to refer the EU-Mercosur agreement to the CJEU — Reuters reported that the Commission is targeting provisional application from March. An EU diplomat confirmed that ratification by the first Mercosur country, likely Paraguay, would be enough to trigger it.
The problem: 334 MEPs just voted to have the Court examine the deal's treaty compatibility. Can the Commission start applying it before getting an answer?
The stakes: an estimated EUR 4 billion per year in tariff savings.
How provisional application works
The EU-Mercosur agreement is a mixed agreement — it covers both exclusive EU competences (trade, tariffs, services) and shared competences (investment, political cooperation).
The Commission has split the agreement into two legal instruments:
- Interim Trade Agreement (ITA) — exclusive EU competence → requires Council and EP approval
- EU-Mercosur Partnership Agreement (EMPA) — mixed → requires ratification by national parliaments
Provisional application applies to the ITA only — the trade pillar.
Article 23.3 of the agreement:
'This Agreement may be provisionally applied. Such provisional application may take place between, on the one part, the European Union and, on the other part, one or more of the Signatory MERCOSUR States in accordance with their respective internal procedures.'
Article 218(5) TFEU provides that the Council — on a proposal from the negotiator (the Commission) — adopts a decision authorising the signing and, where necessary, the provisional application of the agreement.
Two legal schools
The Commission and its lawyers argue:
- Article 218(11) refers to "concluding" (ratifying) an agreement, not to provisional application
- The CJEU referral blocks ratification but provisional application is a separate procedure
- Precedent: the EU-Korea FTA (2011) and CETA with Canada (2017) were applied provisionally before full ratification
- Article 23.3 of the agreement explicitly provides for provisional application with one or more Mercosur states
Critics (some MEPs, some legal scholars):
- Provisionally applying an agreement while the Court is examining its treaty compatibility would be legally and politically reckless
- If the CJEU finds incompatibility, unwinding provisional application would be costly and complicated
- It would signal that the Commission disregards Parliament — which could backfire in the consent vote
Sabine Weyand, Director-General of DG Trade, publicly told Parliament that the Commission "does not intend to circumvent Parliament." But she did not rule out provisional application — leaving the door ajar.
What needs to happen?
| Step | Who decides | Status (February 2026) |
|---|---|---|
| Proposal for provisional application | European Commission | Preparing draft decision |
| Council approval (QMV) | 27 member states | Council approved signing on 9 January (21-5) |
| European Parliament consent | MEPs | Uncertain — EP referred deal to CJEU |
| Ratification by at least 1 Mercosur country | National parliaments | Argentina: Chamber of Deputies approved 13 February |
| Mutual notification | Procedural | Awaiting completion of procedures on both sides |
The key unknown: does Parliament need to consent to provisional application of the ITA? Article 218(5) TFEU says the Council decides. But Article 218(6) requires Parliament's consent for conclusion — and some lawyers argue provisional application should have the same democratic basis.
What happens next?
If the Commission finds legal ground — and the Council agrees — provisional application could launch this spring. The first tariff cuts on cars (35%), machinery (14-20%) and industrial goods would kick in. The automotive industry (ACEA) estimates EUR 4 billion per year in savings.
If the Commission decides to wait for a signal from the Court — even a preliminary Advocate General opinion — expect a 6-12 month delay.
If political pressure from Parliament proves too strong, the Commission backs down and waits for the full CJEU opinion. Provisional application only in 2027-2028.
What does it mean?
For exporters: If provisional application launches this spring, the first tariff cuts arrive within weeks. Companies that prepared early benefit first.
For farmers: Regardless of the scenario, the EP's safeguard regulation of 5 February applies (483 for, 102 against). Trigger: 5% import surge on a three-year average → EU can suspend preferences.
For lawyers and political scientists: This will be a precedent defining the relationship between Commission, Parliament and Court for years to come. How far does Parliament's power to block provisional application extend? The CJEU will answer — but not quickly.
Sources: Reuters (22 Jan 2026), Euractiv, Politico.eu, AP News, europarl.europa.eu (5 Feb 2026). EU-Mercosur Agreement: Art. 23.3. Treaties: Art. 218(5), Art. 218(6), Art. 218(11) TFEU.
“This Agreement may be provisionally applied. Such provisional application may take place between, on the one part, the European Union and, on the other part, one or more of the Signatory MERCOSUR States in accordance with their respective internal procedures.”
— Chapter 23 - General and Final Provisions, Article 23.3