The European Ombudsman admonished the European Commission over its handling of negotiations in the EU-Mercosur trade deal, with a finding of maladministration on 17 March 2021.
The deal was closed before a sustainability impact assessment was completed, meaning the Commission was unable to properly consider social and environmental issues in its negotiating positions, the Ombudsman, Emily O’Reilly, found. As if to prove her point, the final impact assessment was published on 29 March, 10 days after the ruling was released.
The sustainability impact assessment highlights some of the impacts that civil society from both sides of the Atlantic have been warning about. It makes a number of sensible recommendations for unilateral action from Mercosur countries and the EU, but it says nothing about how the trade deal itself could be shaped to avoid or mitigate the risks. Indeed, how could it? The deal is already closed. And that is the problem.
So what does the Ombudsman’s ‘maladministration’ ruling actually change?
On the one hand, the Ombudsman’s ruling changes nothing: It does not block the deal from being ratified, or force the parties to make changes. There are no immediate repercussions for the Commission, aside from the embarrassment of being caught cutting essential corners, again.
On the other hand, the Ombudsman’s ruling should change everything: Such is the controversy around this deal that the Commission is currently consulting Member States on some kind of ‘additional instrument’ to address the concerns. To be clear, the draft EU-Mercosur trade deal is structurally incompatible with the EU Green Deal, and an additional declaration will not fix that (FW 263). The Ombudsman’s ruling shows that EU bad practice played a role in producing this mess.
The Commission and Member States must bear this in mind as they try to find a way out. That means responding to the findings in the impact assessment and the concerns of the deal’s critics in a meaningful and ambitious way that goes beyond tokenism. It also means recognising that the deal was negotiated with too little input from groups concerned with human rights and environmental sustainability. Making sure these voices have a more substantive role built into the negotiation, implementation and monitoring of future trade agreements could be the only way for the Commission to make sure it does not find itself in this situation with the next trade deal.