David Cameron’s demands to renegotiate British membership of the EU would not necessarily require a treaty change, according to the top Brussels lawyer who helped to draft every EU treaty from Maastricht to Lisbon.
Jean-Claude Piris, former legal counsel of the European Council and the Council of Ministers, said that Mr Cameron’s seven key demands could be met with some deft legal drafting, provided there was political will and a mood for compromise on both sides of the negotiations.
Mr Piris’s legal analysis of Mr Cameron’s EU strategy for the Financial Times is likely to reinforce a view among Tory MPs that the prime minister’s European strategy is too timid and open to a political fudge.
The prime minister set out some of his “key” demands in a Sunday Telegraph article in March, the closest he has come to explaining the deal he is seeking before his planned 2017 referendum on continued British membership of the EU.
Mr Cameron’s list was calibrated to avoid any obvious deal-breakers, such as a demand for a limit on migration between existing EU members. Angela Merkel, the German chancellor, has ruled out any unpicking of EU treaties.
Although he said his list was not comprehensive, Mr Cameron said he wanted power to “flow away” from Brussels, a greater role for national parliaments in blocking EU legislation and a cut in red tape.
His seven-point plan also called for less EU intrusion in the British justice system, restrictions on benefit claims by migrants, restrictions on “vast migrations” from new member states and “dealing properly with the concept of ‘ever closer union’”.
Mr Cameron wants a treaty change to underpin his planned reforms but Mr Piris, head of the European Council’s legal service for more than 20 years until 2010, said British demands could be accommodated in other ways.
The French lawyer said that was important because “in the medium term I don’t think we will agree to a treaty at 28 member states” and even a limited treaty affecting the eurozone could be hard to agree before Mr Cameron’s 2017 deadline.
“If we don’t change the treaty for the eurozone, there is no way we will change the treaty just for the UK,” he said. Many member states fear a new treaty, since it might trigger national referendums.
Mr Piris says much depends on whether Mr Cameron takes a tough approach and insists on enshrining his reforms in treaty change.
He said the Lisbon treaty already allowed for powers to flow from Brussels back to member states, although putting that into practice would require widespread EU agreement.
Mr Piris said a political commitment could reinforce the existing role of national parliaments in scrutinising new EU laws, although that would not allow them to block new proposals.
Reducing red tape would require political will rather than a treaty change, while Mr Cameron’s criticisms of the European Court of Human Rights refer to a body that works under the framework of the Council of Europe, not the EU. Britain already enjoys extensive opt-outs from EU justice and police co-operation.
The EU could toughen rules on benefit claims by migrants without treaty change, while accession treaties for new member states could apply longer “transitional” rules on free movement of workers.
Even on the totemic commitment to “ever closer union among the peoples of Europe”, Mr Piris said a political declaration might be drafted recalling that the current treaty obliges the EU to respect the history, national identities and political and constitutional structures of member states.
“If the current mood among most EU governments continues to try to improve the functioning of the EU while absolutely avoiding a revision of the treaties, most of Mr Cameron’s demands as presented in his Telegraph article could nevertheless be given adequate answers,” Mr Piris said.
“However, the hardest would be to get the political will from others to ‘repatriate’ powers from Brussels.”
David Lidington, Europe minister, said: “A large amount can be achieved without treaty change but we think some treaty change will be required.”
Mats Persson, head of the Open Europe think-tank, said Mr Cameron and Tory MPs wanted to enshrine some of the changes in treaty to prove they would “stand the test of time”.
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