Jonathan Faull who heads the European Commission’s ‘Task Force for Strategic Issues related to the UK Referendum’, confirmed, yesterday, that treaty changes, before the referendum, are not on offer. In fact, according to Jonathan Faull David Cameron’s demands may not require any treaty change.

He told the European Parliament’s constitutional affairs committee that “There are many issues which, in our view, can be settled without violating the current treaties and without requiring any amendment to them,” . He then said “There are indeed many responses to British concerns which can be found within today’s existing legal framework,” and that “There may be some issues related to legislation, and legislation takes time, and treaty change certainly takes a considerable amount of time here and in each of the member states.”

Hence, and as Donald Tusk’s letter to David Cameron made no reference to the red card proposal but just said “There is also a largely shared view on the importance of the role of national parliaments within the Union as well as strong emphasis on the principle of subsidiarity” one can only conclude that the Government would only be able to get the so called enhanced yellow card procedure, as a legally binding and enforceable red card system can only be achieved by amending the treaties.

Jonathan Faull also suggested that reforms to Britain’s relationship with the EU could be addressed by changes to EU secondary law. However, even if the European Commission puts forward a proposal amending secondary legislation there is no guarantee such proposals would address the UK’s concerns. Moreover, any proposal to amend EU legislation will be subject to the Ordinary legislative procedure and QMV. For instance, the European Parliament will consider any proposal intended to limit access to social benefits as a restriction to freedom of movement. The MEPs won’t agree to restrict free movement and limit access to benefits. Hence, the UK would not be able to get the European Commission, the other Member States, and the European Parliament to agree to a satisfactory change to the EU secondary law.

As Treaty changes are not on offer, Number 10 has reiterated that it wants to secure “a legally binding and irreversible agreement” , that would be binding under international law and then incorporated into a protocol next time the treaties are changed, at a later date.

Jonathan Faull pointed out that there are a “range of possibilities” including “simple declaratory statements by the European Council”. As regards an International law agreement building on the Irish and the Danish precedent, he said that is “a technique not directly a precedent for what is under discussion here but a technique that has been used and available to us“. He then said, “a decision of the heads of state or government of the European Council can constitute an agreement between them in international law, and can quite legitimately be described as legally binding therefore.”

In the Danish and Irish cases the EU leaders adopted a decision on the meaning of the Treaty, deciding that the Treaty had no effect on certain aspects of those countries national law. It was emphasised that they were interpretative decisions, whose main purpose was to clarify but not to amend the Treaties. In fact, the Danish and the Irish Decisions have not changed the substantive nature of the treaty itself and it did not change in substance those countries obligations under the treaties, but clarified their implications and limitations regarding particular issues relevant to the Danish and Irish people. Hence, one can only wonder whether the Danish and Ireland Decisions are real precedents for the UK, as some of the UK Government’s reform proposals would have a substantive impact on the EU treaties, not only as they apply to the UK, but they also would have an impact on other member states national interests, such as demands on free movement.

A similar decision to Ireland likely to be taken, particularly, with regard to the UK on ever closer union clarifying that this phrase does not apply equally to all member states. In fact, the most David Cameron can expect from the other member states is a decision enshrining the European Council’s June 2014 conclusions about different paths for different countries, which must be then incorporated into a Protocol attached to the EU Treaties at a future date.

A similar decision to Ireland is likely to be taken, particularly, with regard to the UK on ever closer union clarifying that this phrase does not apply equally to all member states. In fact, the most David Cameron can expect from the other member states is a decision enshrining the European Council’s June 2014 conclusions about different paths for different countries, which must be then incorporated into a Protocol attached to the EU Treaties at a future date.

The David Cameron’s renegotiation package does not offer a fundamental change in the relationship with the EU, which requires a profound change in the EU Treaties, dealing with the fundamental structure. But, most of the Government’s reform demands do require treaty changes in order to secure a change to the status quo, which will not happen before the referendum takes place, and for some issues there would be no treaty changes at all. The so called “legally binding and irreversible agreement” would be an international agreement which concerns the autonomous EU legal order but would not be part of EU law and it would not be legally binding on the European Court of Justice and the other EU institutions. It would have to be incorporated into a protocol to be attached to the EU Treaties and ratified by all member states in order to become part of the Community legal order. Thus, until this happens there is no insurance that the renegotiation package that has been agreed will be complied with by the EU institutions and other member states, as it could be easily retreat from member states successor governments with different views, in fact it might be challenged by the other member states or struck down by the ECJ after the referendum takes place.