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 the building of Europe by facilitating decision-making. In the ordinary legislative procedure, Member States do not have a right of veto and there are more ways of reaching an agreement.

However, Member States are little inclined to relinquish 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. They include foreign policy, immigration and justice. In these areas, the special legislative procedure and the system of voting by unanimity are usually employed.

Furthermore, the Treaty of Lisbon softens this procedural inflexibility by introducing several types of institutional clauses. These clauses propose institutional mechanisms which are different but pursue a common objective: to facilitate the building of Europe in ‘sensitive’ areas if the Member States so wish.

Thus, the Treaty of Lisbon introduces three 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 Member States 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 file ‘revisions to the Treaties’. In addition, there are six other passerelle clauses specific to certain European policies, presenting certain procedural particularities (see file ‘legislative procedures’).

BRAKE CLAUSES

The brake clauses concern three areas:

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

The brake clauses have been created in order to enable the ordinary legislative procedure to be applied to these three policy areas. The ordinary legislative procedure is restrained by a braking mechanism: a Member State 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 Commission, if appropriate.

Therefore, the importance of the 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 Member States to apply the ordinary legislative procedure to certain policies, where they had previously applied the rule of voting by unanimity.

ACCELERATOR CLAUSES

These clauses ‘accelerate’ the building of Europe between certain Member States by facilitating the establishment of enhanced cooperation in certain areas.

Accelerator 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 nine Member States. The Council, the Parliament and the Commission are therefore simply informed of the participating States’ desire to establish an enhanced cooperation.

These clauses concern four areas:

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

It is worth noting that the accelerator clauses concerning cooperation and criminal offences result directly from the activation of the existing brake clauses in these two areas. When the brake clause has been activated and has stopped the legislative procedure, the States wishing to do so may turn to the accelerator clause. They may then continue and conclude the legislative procedure between them, under the framework of enhanced cooperation.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.