Flexibility in EU decision-making: passerelle clauses, brake clauses and accelerator clauses

SUMMARY OF:

Article 48 of the Treaty on European Union

INTRODUCTION

The Treaty of Lisbon extends the ordinary legislative procedure and the system of qualified majority voting to a large number of policy areas. The objective is to contribute towards EU integration by rendering decision-making more efficient. In the ordinary legislative procedure, EU countries do not have a right of veto and there are more ways of reaching an agreement.

However, EU countries are not always willing to give up part of their power of opposition in certain policy areas. These areas are those which are deemed to be the most ‘sensitive’, in which the importance of national sovereignty is significant, including foreign policy, immigration and justice. In these areas, the special legislative procedure and the system of voting by unanimity are usually employed.

The Treaty of Lisbon introduces several types of institutional clauses offering institutional mechanisms that are different but pursue a common objective. This is in order to facilitate EU integration in ‘sensitive’ areas if EU countries so wish.

Thus, the Treaty of Lisbon introduces 3 types of clause:

• ‘passerelle’ clauses,
• ‘brake’ clauses,
• ‘accelerator’ clauses.

PASSERELLE CLAUSES

Passerelle clauses allow derogation from the legislative procedures initially provided for by the treaties. Specifically, and under certain conditions, they make it possible:

• to switch from the special legislative procedure to the ordinary legislative procedure in order to adopt an act in a given policy area;
• to switch from voting by unanimity to qualified majority voting in a given policy area.

Activating a passerelle clause still depends on a decision being adopted unanimously by the Council or by the European Council. Thus, in every case, all EU countries must be in agreement before such a clause may be activated.

Furthermore, Article 48 of the Treaty on European Union introduces a general passerelle clause applicable to all European policies (see summary on ‘revisions to the treaties’. In addition, there are 6 other passerelle clauses specific to certain European policies, presenting certain procedural particularities (see summary on ‘legislative procedures’).

BRAKE CLAUSES

Brake clauses concern 3 areas:

• the measures for coordinating social security systems for migrant workers (Article 48 of the Treaty on the Functioning of the EU (TFEU));
• judicial cooperation in criminal matters (Article 82 of the TFEU);
• the establishment of common rules for certain criminal offences (Article 83 of the TFEU).

Brake clauses were created to enable the ordinary legislative procedure to be applied to these 3 policy areas. The ordinary legislative procedure is restrained by a braking mechanism: an EU country may submit an appeal to the European Council if it considers that the fundamental principles of its social security system or its criminal justice system are threatened by the draft legislation being adopted. In this case, the procedure is suspended and the European Council may:

• either send the draft back to the Council which shall continue with the procedure, taking into account the observations made; or
• stop the procedure permanently and request a new proposal from the European Commission, if appropriate.

Therefore, the importance of brake clauses lies not only in the mechanism they propose, but also in the fact that they enable the ordinary legislative procedure to be extended to the policies concerned. The introduction of this mechanism into the decision-making process has convinced the most resistant of EU countries to apply the ordinary legislative procedure to certain policies, where they had previously applied the rule of voting by unanimity.

ACCELERATOR CLAUSES

Accelerator clauses ‘accelerate’ the integration between certain EU countries by facilitating the establishment of enhanced cooperation in certain areas.

These clauses allow derogation from the engagement procedure for enhanced cooperation. Thus, as a result of these clauses, an enhanced cooperation is considered to be formed once it includes at least 9 EU countries. The Council, the Parliament and the Commission are therefore simply informed of the participating countries’ desire to establish an enhanced cooperation.

These clauses concern 4 areas:

• judicial cooperation in criminal matters (Article 82 of the TFEU);
• the establishment of common rules for certain criminal offences (Article 83 of the TFEU);
• the creation of a European Public Prosecutor’s Office (Article 86 of the TFEU);
• police cooperation (Article 87 of the TFEU).

It is worth noting that the accelerator clauses concerning cooperation and criminal offences directly result from the activation of the existing brake clauses in these 2 areas. When that happens and the legislative procedure is therefore stopped, countries may turn to the accelerator clause then continue and conclude the legislative procedure between them, under the framework of enhanced cooperation.

MAIN ACTS

Article 48 of the Treaty on European Union

last update 25.07.2016