EU trade negotiations, according to the Commission’s own Handbook for Trade Sustainability Impact Assessment, should be informed by SIAs taking place “hand-in-hand with the negotiations” and should start as early as possible “to ensure that the analysis can usefully feed into the negotiating process at a useful stage”. As acknowledged by the Commission itself, in order to serve its intended purpose, an SIA should be finalised before the negotiations conclude and should be “based upon the most up-to-date economic, social, human rights and environmental data available”. However, the EU-Mercosur negotiations were concluded without the Commission finalising the sustainability impact assessment and thus not adhering to its own procedures to ensure respect for human rights and social and environmental standards.
FIDH, along with human rights and environmental rights organisations, filed a complaint against the Commission in 2020 arguing that by not finalising the assessment, the Commission disregarded its own guidelines on SIAs and breached EU law. This view was upheld by the Ombudsman who found that “the Commission’s failure to ensure that the SIA was finalised in good time constituted maladministration” and urged the Commission to ensure that, in the future, SIAs are completed prior to the conclusion of trade negotiations.
FIDH had previously taken the Commission to task for its failure to carry out a Human Rights Impact Assessment (HRIA) prior to the EU-Vietnam free trade agreement leading to a complaint before the EU Ombudsman. The complaint was upheld in 2016 and the Commission was found in maladministration for its failure to carry out a prior HRIA when negotiations on that agreement were still ongoing. The Ombudsman noted at the time that the principles set out in Article 21 TEU require that measures be taken to ensure trade policy does not negatively impact human rights and that trade agreements’ potential impacts have to be duly assessed to that end.
Having been found in maladministration twice over its failure to carry out impact assessments, it is glaringly obvious that the European Commission must change the way it conducts its trade policy and fully take into account its obligations both with regard to its own guidelines on sustainability impact assessment and the EU’s legal obligations with regard to human rights.
Background
European Ombudsman Case 1026/2020/MAS - Opened on Wednesday | 08 July 2020 - Decision on Wednesday | 17 March 2021 - Institution concerned European Commission (Maladministration found). Complainants: International Federation for Human Rights FIDH, ClientEarth, Fern, Veblen Institute, La Fondation Nicolas Hulot pour la Nature et l’Homme.
Decision in case 1026/2020/MAS concerning the failure by the European Commission to finalise an updated ’sustainability impact assessment’ before concluding the EU-Mercosur trade negotiations.
European Commission: EU-Mercosur Trade Agreement