It will be two years before the Government knows for sure if Ireland will have a vote on ratification of a final Mercosur agreement.
Heather Humphreys, the minister for business, enterprise and innovation, said last week it is her department’s “understanding” that ratification of the EU-Mercosur agreement will ultimately require the involvement of Dáil Éireann.
But such matters may not become clearer until there is a final text of the agreement, which is about two years away.
Any international agreement entered into by the EU with a third country or group of third countries may, depending on its content, be concluded as an EU-only agreement (which means without the member states also being parties to that agreement), or as a “mixed” agreement (with both the EU and the member states being parties).
Where an agreement covers only areas where the Union has exclusive competence under the EU treaties, the agreement must be an EU-only agreement.
On the other hand, where an agreement covers areas where competence is shared with the member states (or contains areas of union competence and exclusive member state competence), it will be a “mixed” agreement.
In order to determine whether an agreement should be EU-only or “mixed”, it is necessary to examine its contents to see whether it covers areas of EU exclusive competence, or of shared competence, or of member states’ exclusive competence.
In relation to free trade agreements, EU exclusive competence can arise in two ways. Any provisions covering areas such as trade in goods, or sanitary and phyto-sanitary measures, will fall within the EU’s exclusive competence.
The Court of Justice of the European Union (CJEU) holds that foreign direct investment, most trade in services, and sustainable development provisions, all fall within the scope of the EU’s exclusive competence.
EU exclusive competence can also arise where provisions of an international agreement would affect the EU’s internal rules or alter their scope. On the other hand, a “mixed” agreement contains aspects where the competence is shared between the union and the member states.
Aspects of “mixed” competence, insofar as trade is concerned, are often provisions concerning investment protection and the EU investment court system.
However, where an agreement also contains provisions which go beyond the broad area of trade and fall within the exclusive competence of the member states (for instance, provisions concerning political co-operation in foreign policy areas) such an agreement would be considered to be “mixed”.
When any agreement is finalised, such as with Mercosur, the commission proposes the agreement to the council and in doing so, it indicates to the member states its view on competence and, therefore, ratification.
Nationally, Ireland would then confer with the Office of the Attorney General for their views.
Yes, the EU Council decided on provisional application of a majority of CETA provisions, except for a few related mainly to investment.
But the commission had decided to present it to the council as a “mixed agreement”, so the council can only finally conclude the agreement after it is ratified by the individual member states.
So far, only about a dozen EU states have ratified CETA. Ireland has yet to ratify it. A “mixed” agreement only enters into force once each individual EU state has approved it in line with its own national procedures.
As this may take several years, the commission can propose that the agreement be applied provisionally in respect of those aspects for which it has exclusive competence, such as trade.
This provisional application requires agreement by the council and ratification by the European Parliament.
It is not possible at this stage to be definitive about what timelines may apply in respect of ratifying the EU-Mercosur agreement, until a final text is available.
However, it is the Government’s understanding that the EU-Mercosur agreement will be a “mixed” agreement, ultimately requiring the involvement of Dáil Eireann in its ratification process.
The text of the EU-Mercosur agreement will now have to proceed to so-called “legal scrubbing”, and translation, a process which can take between several months and up to two years to complete, before a final text is available.