How Provisional Application Works
On 22 January 2026, Reuters reported that the European Commission is targeting March for the start of provisional application of the EU-Mercosur agreement. The mechanism is technical but decisive for businesses: it determines which rules apply immediately and which must wait for full ratification by all 27 EU national parliaments.
The agreement is split into two legal instruments. The Interim Trade Agreement (ITA) falls under exclusive EU competence — trade, tariffs, services, rules of origin, public procurement, geographical indications. The EU-Mercosur Partnership Agreement (EMPA) is mixed — investment protection, ISDS, political dialogue, development cooperation. Provisional application applies only to the ITA. The EMPA requires ratification by every national parliament, which can take years.
Article 23.3 of the treaty provides:
"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."
Under Article 218(5) TFEU, the Council — on a proposal from the Commission — adopts a decision authorising signing and, where necessary, provisional application. The legal debate centres on Article 218(11) TFEU: does a referral to the Court of Justice for an opinion on the agreement's compatibility with the treaties block provisional application? The Commission argues that 218(11) concerns "concluding" the agreement, not provisional application — two distinct procedures. Critics contend that applying an agreement provisionally while the Court examines it would be politically and legally risky. Sabine Weyand, Director-General of DG Trade, has publicly assured the European Parliament that the Commission "does not intend to circumvent Parliament." She has not, however, ruled out provisional application.
| Under provisional application | Waits for full ratification |
|---|---|
| Tariff cuts (Annex 2-A) | Investment protection |
| TRQs (e.g. beef 99,000 t) | ISDS |
| Rules of origin (Ch. 3) | Political dialogue |
| Services (Ch. 10) | |
| Public procurement (Ch. 12) | |
| Geographical indications (347 total) | |
| Safeguards (Ch. 9) | |
| SPS/TBT (Ch. 5–6) | |
| Sustainable development (Ch. 18) |
Precedent: CETA. Provisional application of the EU-Canada agreement began on 21 September 2017. As of February 2026, not all EU member states have fully ratified CETA. The trade pillar has been in force for over eight years.
Timeline: Council approved signing on 9 January; signing in Asunción on 17 January; EP referred the deal to the CJEU on 21 January; Argentina's Chamber approved on 13 February. If the Commission proceeds, provisional application could start in spring 2026. The CJEU opinion is expected in 2027–2028. Full ratification of the EMPA: 2028–2030 or later.
Sources: Reuters (22.01.2026), Euractiv, CJEU Opinion 1/17 (2019).
“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