If the EU and Brazil, Argentina, Uruguay and Paraguay - which make up the Mercosur countries - successfully negotiate a trade agreement, the approval process will then begin. The first step is what is referred to as legal scrubbing, which means that the general principles agreed between the negotiators are put into precise language that then enters the EU approval process.
If the EU and Brazil, Argentina, Uruguay and Paraguay - which make up the Mercosur countries - successfully negotiate a trade agreement, the approval process will then begin.
The first step is what is referred to as legal scrubbing, which means that the general principles agreed between the negotiators are put into precise language that then enters the EU approval process.
The first step in this is getting majority approval at the Council of the European Union (Council of Ministers), which is the heads of state gathering, at which Ireland is represented by an Taoiseach.
Following the Lisbon Treaty, no member state can veto it at this point - a qualified majority is sufficient.
This is achieved by getting the support of at least 55% of member states representing at least 65% of the EU population. If this is reached, the next step is approval by the European Parliament, where a simple majority is sufficient.
EU only and mixed agreements
At this stage, if the trade deal is classified as an EU-only agreement, that is the approval process complete. An EU-only agreement is where it covers only issues where the EU has complete authority to negotiate on behalf of all members, such as tariff levels on goods entering the EU from outside.
The most recent agreement - concluded with New Zealand - was considered such an agreement and the approval by the Council of Ministers and the European Parliament, which voted by 521 votes in favour, with 85 against and 21 abstentions.
A trade deal is considered a mixed agreement if it goes beyond areas of exclusive EU competence to areas where member states can have individual policies such as the environment.
In general terms, this refers to more political matters and this issue was debated and adjudicated on by the Court of Justice of the European Union (CJEU) when considering the trade deal between the EU and Singapore in 2017.
It concluded that only portfolio investments and the dispute resolution mechanisms fell outside exclusive EU competence.
Mercosur agreement
Given the political sensitivities of a Mercosur agreement, there would be a preference in Brussels to have a Mercosur deal classified as an EU-only agreement that didn’t require individual member state approval.
When the original deal was concluded in June 2019, then-agriculture commissioner Phil Hogan told the Irish Farmers Journal that while member states’ forums are consulted, they don’t have a veto.”
This view was at variance with an answer given by then Minister for Business, Enterprise and Innovation Heather Humphries T.D. in July 2019. In response to a question in the Dail from Charlie McConalogue T.D., she said that “it is our current understanding that it will be a mixed agreement” as it covered not just trade but “areas of shared competence (such as political co-operation elements).”
Ever since the CETA agreement between the EU and Canada was almost torpedoed by a vote to reject in the Wallonia regional parliament in Belgium, the preference for the European Commission is for trade deal ratification to be done at EU level.
Where agreements are exclusively about trade and market access for goods and services, the Lisbon Treaty makes it clear that this is for EU-only consideration and approval.
However, when it was unclear as in the case of the agreement with Singapore, the Council of Ministers referred it to CJEU for an opinion.
If France, Poland and perhaps Italy are opposed to a Mercosur deal, CJEU could well be called on again to adjudicate if the EU institutions alone could ratify the agreement of if member state approval was required.
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