The tension in the room was almost tangible when the President of the European Commission, Ursula von der Leyen, announced on Friday, 27 February 2026, that the EU-Mercosur Agreement would be applied provisionally under Article 218(5) TFEU. After a week of uncertainty and despite widespread opposition and resistance – in a world that is drifting once again into great power politics – the EU thereby sends a strong signal that it remains committed to multilateralism and continues to be a reliable partner on the global stage. The Commission’s decision is arguably not only legally justified, but also politically imperative.

The European Parliament’s vote to halt the EU-Mercosur Agreement

Although not formally ratified yet, the EU-Mercosur Agreement can already be considered a mythical giant in the history of bilateral trade agreements. The first Association Agreement between the EU and the Southern Common Market (Mercosur) consisting of Brazil, Argentina, Uruguay and Paraguay dates back to 1995 before further negotiations seemed to finalize in 2004. However, disagreements concerning the access of agricultural products from the Mercosur States to the EU countries foreshadowed its role as a central bone of contention between the negotiation partners. Following a protracted period of almost 30 years since the initial agreement was signed, the parties finally reached a political agreement on 6 December 2024. This encompassed the areas of politics, economic cooperation, and trade, thereby extending beyond the content of a mere trade agreement.

Several months later, on 3 September 2025, the European Commission adopted proposals for Council decisions for the signature and conclusion of two parallel legal instruments: the EU-Mercosur Partnership Agreement (EMPA) and the Interim Trade Agreement (ITA). The latter constitutes effectively a duplication of the trade part of the EMPA which falls exclusively within the competence of the EU (see Article 3(1)(e) TFEU) and facilitates the expeditious implementation of that section. The ITA will be repealed once the EMPA is fully ratified and enters into force (see. Article 23.10 ITA). The respective decisions were adopted by the Council on 9 January 2026 and finally, on 17 January 2026, the EU and the Mercosur signed the two agreements. “All’s well that ends well”, one might say. However, just four days later, the European Parliament (EP), in a controversial vote involving far-right and far-left parties alike, sent shockwaves around the world when it decided to halt the advancement of the Agreements and requested an opinion on the legality of the EMPA and the ITA from the Court of Justice of the European Union (CJEU), thereby effectively delaying the vote on the Agreement within the EP for at least one year.

In its Resolution from 21 January 2026, the EP voices concern as to the legality of the ITA. Specifically, whether the Commission had the power to create self-standing interim agreements, such as the ITA, against the background that the Council in 1999 had only authorised the negotiation of a mixed-agreement and not a self-standing ITA, thereby breaching Article 218(4) TFEU. It argues that the splitting of the Agreements into the EMPA and the ITA effectively bypasses the national parliaments. Due to its character as a self-standing agreement, the Member States could not vote on the ITA, although several parliaments have allegedly already signalled their opposition to the ratification of the EU-Mercosur Agreement (see points D. and 1. of the Resolution). However, Gesa Kübek has already demonstrated how the EP’s arguments appear superfluous in light of prior case law. As the Court has held in Opinion 2/15 (para. 248), an agreement must and can be concluded by the EU alone, if the agreement falls within the EU’s exclusive competence, as is the case of the present ITA (see supra). The decision has already been taken by the Council to sign both the EMPA and the ITA. Consequently, a qualified majority within the Council has expressed its support for the ITA until the ratification of the EMPA. What kind of agreement the Council had in mind when it authorised the negotiations back in 1999 is irrelevant in that regard. What matters is what kind of agreement was ultimately signed. It is therefore highly unlikely that the CJEU will find a violation of Article 218(4) TFEU, or the principles of conferral, institutional balance, and sincere cooperation.

Provisional application or constitutional overreach?

After the EP’s Resolution had been passed and the Agreements conferred to the CJEU, several voices urged for the immediate application of Article 218(5) TFEU and thus of the ITA. However, other authors have critically pointed out the questions of democratic accountability and the absence of strong procedural safeguards that are associated with the use of that instrument, even calling on the Council to reverse its course on the provisional application of the Agreement.

According to Article 218(5) TFEU the “Council, on a proposal by the negotiator, shall adopt […] if necessary, its provisional application before entry into force.” In its Decision on the ITA from 9 January 2026, the Council has not only authorised the signature of the Agreements, but also expressly stated that “the ITA shall be applied on a provisional basis” (see Article 3 of the Decision) as long as it is still pending to enter into force. That means that a qualified majority within the Council for the provisional application of the ITA existed two weeks prior to the Resolution of the EP. It also implies that the Commission had almost no discretion regarding the question of when to provisionally apply the ITA but was rather obliged to do so as soon as it was foreseeable that the EP would not be able to vote on it.

The case of the Mercosur ITA, however, is especially delicate from an institutional perspective, as the EU is once again breaking with a longstanding custom that has been in place since the signing of the Lisbon Treaty. Before, it was common practice to secure the provisional application of a trade agreement through the parallel conclusion of an interim agreement, which usually contained an authorization for provisional application under Article 300(2) of the Treaty establishing the European Community (see e.g., Interim Partnership Agreement between the European Community and the Pacific States, 16 October 2009, OJ L 272). The revaluation of the EP in the Lisbon Treaty had also implications for the practice of provisional application. Since 2009, the mechanism has only been used with the consent of the EP for EU-exclusive parts of mixed trade agreements in order to bridge the lengthy processes of ratification within the national parliaments (see for example the case of the CETA-Agreement). On its official website, the Commission confirms this practice, stating that “[p]rovisional application usually only takes effect once the European Parliament has given its consent.” One case in which this custom was not followed was the Brexit Agreement, when the Council decided to provisionally apply the EU-UK Trade and Cooperation Agreement although the consent of the European Parliament was still pending.

Therefore, Ursula von der Leyen found herself in a dilemma when she was appearing in front of the cameras on 27 February 2026 to announce her decision on the provisional application of the EU-Mercosur Agreement under Article 218(5) TFEU. On the one hand, she was pressured by the European Institutions and the Mercosur states to push through with the provisional application to not further delay a process that was already excessive. On the other hand, she had to consider the long-standing practice of including the EP into the decision-making process under Article 218(5) TFEU as well as significant opposition from the civil society. Additionally, resistance originated especially from the traditionally strong and well-lobbied agricultural and environmental sectors, which are wary of the Agreements’ potential impact on the importation of agricultural products into the EU and the further deforestation and environmental consequences in South America (see for a discussion of the potential impacts of the Agreement here and here).

Legitimate doubts, necessary action

These concerns are legitimate and they should be taken seriously. It is true that several issues concerning the environmental impact or the protection of the rights of indigenous peoples within the EU-Mercosur Agreement are still unresolved. However, one should still welcome Ursula von der Leyen’s decision to continue with the provisional application of the ITA.

First, after lengthy negotiations, the negotiating parties have addressed the concerns voiced in relation to the EU-Mercosur Agreement. They have set in place a legally binding mechanism which protects sensitive European sectors in the case of a surge in imports from Mercosur countries (see Article 17.3 EMPA / Article 9.3 ITA). The safeguard mechanism will be complemented by recalibrated tariff quotas and enhanced audits and checks within the Mercosur countries in order to prevent non-compliant products from entering the internal market. How effective these mechanisms will turn out to be remains to be seen. Concerns about the feasibility of such controls – especially concerning environmental obligations – in countries such as Brazil, which is twice as large as the entire European Union, certainly persist, but should be resolved in practice through the tools provided by the Agreements. In this context, the EU should also be careful not to deter its current and future trading partners by imposing and insisting on European regulatory standards, while simultaneously not even considering to engage with alternative regional standards.

Secondly, and probably even more significantly, the decision to provisionally apply the Agreement sends a clear signal to the world that the EU follows up on its commitments and is capable of dealing with internal difficulties. It is not only a signal to the Mercosur partners, but simultaneously strengthens the EU’s credibility as a global trading partner in regard to states such as India and Indonesia who have also signed large-scale trade agreements with the EU in the past months. In times where the US, formerly the most important trade partner of the EU, is practicing an aggressive form of national protectionism and an unpredictable geoeconomic policy, the importance of new reliable and diversified multilateral trade networks cannot be underestimated. Against this background, the EU-Mercosur Agreement represents a normative alternative in contrast to the neo-imperial global order that the current US administration is envisioning.

Conclusion

If the CJEU confirms what legal precedent strongly suggests – namely, that the EU had the competence to negotiate the ITA as a self-standing agreement – the real question will no longer be whether the Commission could act, but whether the EU can afford not to. By choosing to provisionally apply the ITA with the Mercosur countries the EU has demonstrated that it understood the urgency of the situation and that it continues its course of reorienting its global trade policy towards the Global South. In an era of transactional geopolitics and eroding multilateralism, the EU must decide whether it wants to be a regulatory spectator or a constitutional actor on the global stage. On 27 February 2026, it chose the latter.