"Much of what President Van Rompuy says is good and useful. It amounts to a distinct improvement both economically and politically to the distress signals sent on Monday from Paris by President Sarkozy and Chancellor Merkel.
"But Mr Van Rompuy's first proposed option which is to avoid serious treaty change and to rely on the fast-track procedure to amend Protocol No 12 is fraught with difficulty.
"For one thing, the Protocol is about the implementation of the excessive deficit procedure (Article 126(14) first sentence TFEU), and not about the excessive deficit procedure itself (which is laid down in earlier provisions of Article 126).
"The existing Protocol leaves the detail of the implementing procedures up to national discretion: 'The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from these Treaties' (Article 3 of the Protocol).
"Yet what Mr Van Rompuy proposes in paragraph 10 of his report is a major departure from the style and substance of the existing Protocol. He proposes the radical intervention by the EU into the constitutional order of member states including the compulsory installation of the 'golden rule' under the oversight of the European Court of Justice, automatic correction mechanisms and central reporting.
"It is difficult to see how political and institutional reforms of such importance can be carried within a Protocol which is currently of a rather technical nature. In particular, I very much doubt that an extension of the functions of the Court of Justice can be made by such a light constitutional procedure without risking the possibility of a legal challenge.
"Lastly, Mr Van Rompuy is brave to say in paragraph 12 of his report that the Council decision to replace Protocol No 12 'does not require ratification at national level'. Any self-respecting national parliament would certainly wish to vote on whether to endorse such an important decision of its own government: several national parliaments, including the Bundestag, have rules which oblige them to do so. (There is a resonance here of the simplified revision procedure (Article 48(6) TEU) which requires even a modest treaty amendment to be 'approved by the Member States in accordance with their respective constitutional requirements'). So the ratification of a new Protocol No 12 will not be as straightforward as Mr Van Rompuy appears to believe.
"All in all, I am dissuaded of the viability of the Protocol No 12 route and much prefer Mr van Rompuy's second proposed option of a full-scale treaty change leading to credible economic government of a fiscal union fully legitimised and enriched in its preparation by a democratic Convention."