Brake clauses

The entry into force of the Treaty of Lisbon brought with it the extension of the ordinary legislative procedure and qualified majority voting. This is applicable to a wide range of policy areas, except for those areas where EU Member States’ national sovereignty is considered to be of paramount importance (e.g. foreign policy, immigration and justice), and decisions are generally adopted unanimously by means of the special legislative procedure.

Nevertheless, when it extended the ordinary legislative procedure and qualified majority voting, the Treaty on the Functioning of the European Union (TFEU) also introduced a system of brake clauses. This system allows for situations where a Member State may submit an appeal to the European Council if it considers a legislative proposal to be of particular concern, and the legislative procedure is then put on hold. The legislative procedure can resume within 4 months if the Member State’s concerns can be accommodated or, if this is not possible, it is either shelved or the European Commission publishes a new legislative proposal.

The braking mechanism comes into play in the following three policy areas:

Article 48 TFEU on measures for coordinating social security systems for migrant workers;
Article 82(3) TFEU on judicial cooperation in criminal matters having a cross-border dimension;
Article 83(3) TFEU on establishing common rules for certain criminal offences.

In the latter two instances, if no consensus is reached, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they must notify the European Parliament, the Council of the European Union and the Commission accordingly.