18 Article 352 TFEU allows the EU to act where there is no specific applicable treaty base, as long as this does not entail harmonisation or affect the Common Foreign and Security Policy. Proposals made under Article 352 TFEU require the unanimous approval of Member States and the consent of the European Parliament.
19 Under section 8(1) of the 2011 Act, a Minister cannot vote in favour of an Article 352 measure unless one of subsections (3) to (5) is complied with. Subsection (3) provides that a Minister may only vote in favour of an Article 352 decision where the draft decision is approved by Act of Parliament. This requirement does not apply where urgent approval is required (subsection (4)) or where the draft decision relates to an exempt purpose (subsection (5)), as defined in subsection (6). Neither of these subsections in the 2011 Act applies to the FRA or Canada decisions, so an Act of Parliament is needed before the UK Government may vote for their adoption in the Council.
The Fundamental Rights Agency Decisions
20 Under Article 2 of the Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights n, the FRA’s objective is to provide the relevant institutions, bodies, offices and agencies of the European Union and its Member States when implementing European Union law with assistance and expertise relating to fundamental rights.
21 Under Article 28(1) of the Regulation, the FRA is open to the participation of candidate countries.
The Decisions on the EU-Canada Competition Agreement
22 These proposals derive from a Council mandate of 9 October 2008 in which the European Commission was authorised to start negotiations to replace the existing cooperation agreement between the EU and Canada in competition matters.
23 The legal bases for the Canada decisions are Articles 103 and 352 TFEU. Article 103 is the legal basis for the implementation of Article 101 (which prohibits anti-competitive agreements) and Article 102 (which prohibits abuse of dominance). Article 352 is the legal basis for Regulation 139/2004 (the Merger Regulation) and the proposed new Agreement with Canada covers cooperation in merger investigations.