European Council President Herman Van Rompuy has just floated a proposal to subject all Union members -- not just eurozone members -- to more rigorous budget scrutiny by Union organs. The move is so contrary to the Union treaties and its scope so overreaching to the current eurozone debt crisis that it is doomed to fail. Van Rompuy is clever enough to know this, meaning that its purpose is likely to distract serious analysis of the Merkel-Sarkozy proposal.
Van Rompuy's proposal is based on an imaginary view of what the treaties allow as to excessive deficits. Article 126 of the Lisbon Treaty indeed sets forth commitments by all member states not to run excessive deficits, and Protocol 12 allows the details of that process to be amended by unanimous vote of all members. However, it does not allow for the rewriting of Article 126, only its implementation, and the protocol itself, in its Article 3, provides:
[T]he governments of the Member States shall be responsible under this procedure for the deficits of general government... The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area...
So any plan, like this one, that moves the responsibility for enforcing deficits away from the member states is a treaty change requiring the normal processes including member state action apart from just heads of state. Neither Van Rompuy's plan nor anything else in Protocol 12 changes that. Nevertheless, one Irish commentator stated that "altering the protocol doesn't change the procedure set out in article 126. It merely changes the manner in which it is implemented."
To the extent Van Rompuy is serious, expect several repetitions of this, though their number will not make them more true. Van Rompuy's plan sets up the European Court of Justice to "supervise the implementation of this rule into national law." So much for member state responsibility. Even Liberal Democrat MEP Andrew Duff himself correctly noted that "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."
Tellingly, Van Rompuy's only other named alternative is the Franco-German approach of treaty change, though there are other alternatives, including assuming the euro is already an enhanced cooperation exercise among the eurozone only and legislating pursuant to those rules.
Whether this plan is simply legally incompetent, intended to feign independence from the Franco-German proposal (details of which are still forthcoming), pretending that there are indeed a multiplicity of viable proposals, or required to consume part of the very short time member states have to choose a course of action by tomorrow, Van Rompuy's proposal should be seen for what is, a dead letter. Its false expediency is overwhelmed by its cynicism.