Provide By: Jade McCauley
Essay Part A
"Outline and discuss significant changes of the legislative process in the EU from 1993 onwards and evaluate their achievements critically in relation to the often bemoaned ‘democratic deficit’ of the EU."
This essay is devoted to discussing and analysing significant changes in relation to the European Union’s (EU) legislative process from 1993 onwards. Furthermore this essay will also critically analyse how these changes have impacted the coined phrase ‘democratic deficit’. The significant changes to the EU’s legislative process in which this essay will be written upon is the increase bargaining power of the EP, the removal of the cooperation procedure in favour of the ordinary legislative procedure and the introduction and increase use of Trilogue meetings over conciliation committees
Firstly it is important to note that there is no widely accepted definition of the term democratic deficit however it was first cited by the Young European Federalists in 1977[1] and was later used by David Marquand where he used it to describe the weakness of the legitimacy of the EU[2]. However the most comprehensive definition of the term and the one where this essay will be based upon is cited by Sanford Levinson as occurring ‘when ostensibly democratic organizations or institutions (particularly governments) fall short of fulfilling the principles of democracy in their practices or operation where representative and linked parliamentary integrity becomes widely discussed’[3] The democratic deficit of the EU began with the introduction of the Single European Act (1987)[4] and the Maastricht treaty[5] (1992) which forced national governments to transfer powers to the EU which has weakened both control and influence from national governments without being rewarded with institutions and processes which are democratic. [6]
There are three institutions involved in the legislative process of the EU. The European Parliament (EP), the European Commission (EC) and the Council of the European Union (Hereafter Council) The main legislative process of the EU is the ordinary legislative procedure which is founded on the principle of parity and can be found under article 294 of the Treaty of the Functioning of the European Union (TFEU)[7].
The co-decision procedure was enforced in 1993 by the Maastricht treaty. There have been a few significant changes to the legislative process since then. The Lisbon Treaty renamed this procedure the ordinary legislative procedure (OLP)[8]and is the most widely used legislative procedure in the EU. Under the Treaty of Nice[9] the EP legislative and supervisory powers were increased. Subsequently under the Treaty of Amsterdam[10] the co-decision procedure was simplified and made wider in scope. However the most significant change to the OLP by the Lisbon treaty was the new bargaining power of the EP. It requires that EP and the Council adopt legislation jointly[11]. The EP is therefore a co-legislator with the council. This is significant in reducing the democratic deficit of the EU given that the EP is the only directly elected EU institution which gives it the same rights and authority as the council when it comes to decision making and gives EU citizens a voice. Under this procedure the EP and the Council can suggest amendments to the commission’s proposal. The EP can make its amendments first and if the council doesn’t accept the commission’s new amended proposal by the EP unanimity rather than qualified majority voting is necessary to adopt the act.[12] This means that it would be easier for the council to adopt and agree the amendments of the EP than to propose amendments of its own. Therefore one can conclude that the EP has more legislative influence than the council under this procedure and the reduction of the powers of the council in favour for balancing that power with parliament helps to reduce the democratic deficit of the EU. Furthermore the EP has oversight over the EU budget, it has the power of assent in international agreements in areas which are governed by the OLP and it can elect the Commissions president all granted by the Lisbon treaty[13] Although these changes have helped to reduce the democratic deficit by helping to create an institution that is maintained by transparency and accountability of the EU by increasing the bargaining power of the EP, parliament is still unable to initiate any legislation. The Lisbon treaty will allow the EP to ‘request’[14] a proposal but still relies on the commission. Therefore there is still a democratic deficit within the EP.
Another significant change was the removal of the cooperation procedure in the Lisbon treaty[15] in favour of the OLP where EP must be consulted by the Council but lacked the opportunity to vote and its approval wasn’t necessary[16]. Although this sounds like a significant change and a move towards reducing the democratic deficit Stephen Sieberson argues that to begin with there was only a few policy areas where cooperation applied before Lisbon[17]. After the Nice treaty the only areas where cooperation procedure applied was in matters relating to monetary and economic union [18]Furthermore although the cooperation procedure has been eliminated there are provisions under the Lisbon treaty in relation to non-legislative decisions of the Council which requires the EP to be consulted but does not have the opportunity to vote on[19]. This means that parliament has no real say in these issues which include Articles 1(30) (3) and 1(56) (3) [20]Therefore one can conclude that the removal of the cooperation procedure in favour for the full adoption of the co-decision procedure is a modest step in reducing the democratic deficit of the EU given that this treaty implemented areas where the EP doesn’t have a real say.
Lastly another significant change to the legislative process has been the introduction and increase use of Trilogue meetings. They’re informal meetings introduced in 1995 where a small number of representatives from the EP and the Council coming together to solve conflict between both institutions usually accompanied by the EC [21] Conciliation committees were set up for this purpose. However since the treaty of Amsterdam in 1999 where legislation could be finalised at the first reading there has been an avoidance in the use of conciliation committees[22] in favour of Trilogue meetings in order to resolve inter-cameral conflict during the legislative process[23]. The use of conciliation committees have decreased from 39% from the period of 1993-1999 to a staggering low of only 4% from 2009-2011[24] In the beginning these meetings were used as preparation for the conciliation committee however now it is extensively used throughout the legislative process especially in the first and second reading.[25] The preference for the use of trilogue meetings has resulted in an increase in early agreements at the first reading[26] and the fast tracking of legislation.[27] Many academics such as Stacey, 2003[28] have argued that the EP has gained legislative influence from Trilogue meetings in comparison to the Council. However this essay argues that Trilogue meetings enhance the democratic deficit of the EU. The media in Brussels have described the use of Trilogue as ‘infernal, undemocratic and ‘secret’’.[29] This is a noteworthy criticism given that the majority of EU legislation is agreed upon through this meeting.[30] Although Trilogue meetings are a key part of the EU legislative process they have no legal base in the treaties.[31] Trilogue meetings are held by a few high level officials essentially behind closed doors. There is a strong argument that trialogues are in breach of EU treaties, given that Article 15 (2) of the TFEU states that ‘The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.’[32] As these meetings are held behind closed doors where there can be no intervention until after decisions are reached it raises concerns for both transparency and accountability. Therefore one can conclude that the increase use of Trilogue meetings instead of conciliation committees as a way to resolve disputes between the EP and the council enhances the democratic deficit of the EU
Bibliography
EU Legislation
Single European Act [1987] O.J. (L 169) 1, 25 I.L.M. 506
Maastricht Treaty, [1992] O.J. EC C325/5
Consolidated Version of the Treaty on European Union [2008] OJ C115/13.Art 289
Lisbon Treaty [2007] 2007/C 306/01
Treaty of Nice [2003] 2001/C 80/01
Treaty of Amsterdam [2003] OJ C/80
European Communities Act OJ C325/5 Art.251
Secondary Sources
Richard Corbett, ‘Young European Federalist Manifesto’ [1977] PL 1
David Marquand, Parliament for Europe (1st edn, Cape,1979)
Sanford Levinson ‘How the United States Constitution Contributes to the Democratic Deficit in America’ [2007] L.Rev 860
Marcus Horeth, ‘No way out for the beast’ The unsolved legitimacy problem of European governance’ [2011] EPP 249
Robert Thompson ‘Who has the power in the EU? The commission, council and parliament in legislative decision making’ [2006] Blackwell 392
George Tsebelis and Geoffrey Garrett ‘Legislative politics in the European Union’[2000] Sage 9
Dexter Lee ‘The European Union’s democratic deficit and options for EU democracy in the 21st century’ [2014] EU 2
Stephen Sierberson, ‘The treaty of Lisbon and its impact on the European’s union Democratic Deficit’ [2007] SSRN 445
Jean Claude- Pris , ‘The constitution for Europe: A legal analysis 209’[2006] Annex 2
Michael Shackleton ‘The Politics of Codecision’. Journal of Common Market Studies [2000] 325
Anne Rasmussen, ‘The EU Conciliation Committee – One or Several Principals?’ [2008] European Union Politics 87
Thomas König and others, ‘Bicameral Conflict Resolution in the European Union: An Empirical Analysis of Conciliation Committee Bargains’[2007], British Journal of Political Science 281
Henry Farrel and Adrienne Heritier (2004) ‘International Negotiation and Intraorganizational Power in Shared Decision Making: Early Agreements Under Codecision and Their Impact on the European Parliament and Council’ [2004]. Comparative Political Studies 184
Activity reports 1999-2011
Raya Kardasheva ‘Trilogues in the EU legislator’ [2012] Department of European and international studies research paper
Anne Rasmussen, ‘Early Conclusion in Bicameral Bargaining: Evidence from the Codecision Legislative Procedure of the European Union. European Union Politics’[2011] 41
Christine Reh and others (2013) 'The Informal Politics of Legislation: Explaining Secluded Decision Making in the European Union', forthcoming Comparative Political Studies [2013]
Jeffrey Stacey, ‘Displacement of the Council via Informal Dynamics? Comparing the Commission and Parliament’. [2003] Journal of European Public Policy 936
Harry Mahoney ‘Complex EU law-making dubbed “infernal, undemocratic”’ [2013]
Christilla Roederer-Rynni and Justin Greenwood, [2015] ‘The culture of trilogues’, Journal of European Public Policy 1151
European economic and social committee ‘Investigation of informal Trilogue negotiations since Lisbon treaty – Added value, lack of transparency and possible democratic deficit’ 6
Problem Question: Part B
"Christine, a single mother, is working for the City of Salzburg (Austria). She has a little boy and childcare is a problem for her during two weeks in August when nursery is closed. Thus, she usually takes 2 out of her 5 weeks of annual leave during that time in August when the nursery is closed. However, this year her employer has refused to give her any time off during August because they have a big project to finish and need every woman and man in the office.
Christine is desperate and points out that according to the relevant Austrian Working Time Law (Arbeitszeitgesetz), she is entitled to take half of her leave according to her preferences.
Her employer, however, argues that the Working Time Directive of the EU (Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time Official Journal L 299, 18/11/2003 P. 0009 - 0019), which addresses working time and leave entitlements, does not stipulate any such requirement.
Dr Schreck, who represents the City of Salzburg, argues, EU law is supreme.
However, Dr Schreck is authorised by the City of Salzburg to offer Christine an allowance in lieu of her two weeks of leave in order to pay a babysitter.
Christine is not happy about this offer but Dr Schreck points out that according to Austrian national law the employer can decide to pay an allowance instead of offering leave for up to 3 weeks out of the 5 weeks of leave entitlement.
Christine has become more versed in the Working Time Directive and refers Dr Schreck to Article 7 of the Directive which reads as follows:
Annual leave
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
1.) Studying the Working Time Directive, will Christine be entitled to take her annual leave during the two weeks of August?
2.) Does she have to accept a payment in lieu of her leave?
Christine’s friend, Allison, is also having a difficult time with her employer. She is working as a lorry driver for Berger Transports in Salzburg. She has recently found out that her employer only allows her to carry over one quarter of her annual leave.
According to the relevant Austrian national law employees must be allowed to carry over a ‘fair proportion’ of annual leave.
She is outraged by this but has her eye on Article 31 of the EU Charter which stipulates:
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.
Dr Wolfsberger, the legal representative of Berger Transports, points out that the Charter is not applicable because Berger Transports is a private undertaking.
Advise Allison whether the EU Charter is applicable here and, if so, whether it could benefit her."
Christine (B) (1)
The issue in which Christine is facing is whether she can rely on Article 7 of the Working Time Directive of the EU (WTD)[33] in order to be entitled to take her two weeks annual leave during the month of August as per her preference.
Christine’s issue is one of EU supremacy. EU supremacy was first uttered in the case of Van Gen en loos [34]by describing the EU as a ‘new legal order’. This is significant as it clarified that the EU was not a treaty organisation but rather an independent legal order. However Costa v ENEL[35] established the principle of supremacy which means that EU law is directly applicable to each member state. As a directive is a part of EU law, the (WTD) is therefore subject to EU supremacy and Austria is obligated to follow and enforce it.
The legal basis for the (WTD) is under Article 288 of the Treaty on the functioning of the European Union (TFEU)[36]. Specifically Article 7 of the (WTD) is applicable to Christine. It requires Austria to take the necessary measures to ensure that every worker is entitled to at least four weeks of annual leave. Furthermore Article 7 stipulates that those 4 weeks annual leave must be ‘in accordance with the conditions for entitlement to and granting of such leave as laid down by national legislation’. Given that the working time law in Austria already grants Christine annual leave of 5 weeks the issue is whether she can take half of her leave according to her preferences under this EU directive as granted by the Austrian national law.
Although Christine’s employer rightfully argues that the (WTD) doesn’t stipulate any requirement that Christine is entitled to take half of her annual leave according to her preferences, it does stipulate that Austria must grant Christine four weeks annual leave in accordance to already existing national law on working time found under Arbeitszeitgesetz law. One of the conditions for granting and entitlement of annual leave under this Austrian working time law is that Christine is entitled to take half of her leave according to her preferences.
Christine is seeking two weeks annual leave in August to care for her child which is half of the leave she is entitled to under EU law and 2.5 weeks under Austrian law. The (WTD) stipulates that the four weeks annual leave must be in accordance with the existing national law in which the national law entitles Christine to take half of her leave to her preferences. As EU law is supreme and is directly applicable Christine’s the City of Salzburg must comply with Article 7 of the (WTD) and allow Christine to take annual leave during the two weeks of August as to care for her child.
Christine (B) (2)
Christine is seeking clarity on whether she must accept an allowance in lieu of her two weeks annual leave to pay a babysitter or can Article 7(2) of the Working Time Directive of the EU[37] (WTD) protect her.
Dr. Schreck follows the Austrian national law and offers Christine an allowance in lieu of her preferred two weeks annual leave in August. However as Article 7(2) of the WTD of the EU states the minimum period of paid leave may not be replaced by an allowance in lieu. As this Article gives Christine better rights than the Austrian national law she should invoke the WTD of the EU in her national court.
In order for Christine to enforce this right under the directive she should apply vertical direct effect in her case. Direct effect was established in Van Gen n Loos[38]. If a provision under Union law is directly effective, it will give rise to rights which can be invoked by individuals in their national courts. Article 7(2) gives Christine the right for her annual leave not to be replaced by an allowance in lieu. It was found in Grad V Finanzamt Traunsteain[39] that a directive could be directly effective and was established beyond doubt later in Van Duyn v Home Office[40]. However Van Gend en loos set out conditions that must be satisfied for a directive to be of direct effect. It must be sufficiently clear, precise and unconditional. These conditions all appear to be satisfied given that the directive sets out the precise annual leave of 4 weeks which can’t be replaced by an allowance. It’s very likely that this directive will be of direct effect. Furthermore in relation to directives, the implementation deadline must have passed for it to have direct effect.[41] As this directive was legislated for in 2003 the time limit has therefore passed and therefore the WTD of the EU is of direct effect
In order for Christine to enforce this directive it must be of vertical direct effect which means the city of Salzburg must be an emanation of the state. A distinction between vertical and horizontal was given by Defreene [42] In Foster v British Gas plc[43] an emanation of the state was found to be any body that provides a public service under the control of the state and has special powers beyond those of individuals. The city of Salzburg clearly satisfies these requirements and is therefore an emanation of the State and this is not affected by the fact that the City of Salzburg acts in the capacity of the employer, the Austrian government[44]. Therefore Christine can apply vertical direct effect to protect her annual leave from being replaced by an allowance.
To conclude although the national law must be interpreted and applied to avoid any conflict with EU law as far as it is possible to do so[45] in Christine’s case it is impossible as Article 7(2) of the directive is very clear. As the WTD of the EU is of vertical direct effect against the city of Salzburg the Austrian national court must not only apply and implement the right set out under Article 7(2) of the directive but must do so in priority over the conflicting provision of its national law[46]. It is very likely that this provision will protect Christine against the city of Salzburg and she will not have to accept a payment in lieu of her leave.
Allison
The EU charter of Fundamentals rights (hereafter the Charter) has the same legal effect as the treaties under article 6(1) of the Treaty of the European Union[47] The Charter therefore has EU supremacy and is directly effective. Under Article 51(1) of the Charter[48] it states that it’s addressed to the institutions and bodies of the Union and to the member states only when they are implementing EU law. Although recently the ECJ case law has expanded the applicability of the Charter.
Given that Article 51(1) only refers to member states and not private individuals or companies it would seem that the EU charter is not applicable in Allison’s case as it doesn’t include horizontal relationships. However this seems to be refuted in the case of AMS[49] as the ECJ dealt with the case by reference to the nature of the obligation found in Article 27 of the Charter which suggests that provisions under the Charter could have horizontal effect.
The ECJ has made some recent rulings on horizontal direct effect of the Charter. In the case of Egenberger[50], Cresco Investigation[51] and IR v JQ [52]the ECJ has come to the conclusion that there is a possibility that certain rights under the Charter could be relied upon in disputes between individuals and companies. A final decision was made in the cases of Bauer[53] and Max-Planck[54] which are of particular relevance and importance to Allison’s case as they deal with article 31(2) of the Charter. From those judgements we can get a test to be applied on whether the EU charter has horizontal direct effect and is applicable to Berger Transports. Provisions of the Charter are liable to have horizontal direct effect where they are both unconditional in nature and mandatory. For a provision under the charter to be unconditional in nature it must be ‘self-sufficient’ in that it mustn’t need to be expressed in EU or national law. In Beaur it was found that Article 31(2) of the Charter was an ‘essential principle of EU social law’[55] and given that it is an essential principle it was self-sufficient than therefore both unconditional in nature and mandatory. Therefore Article 31 of the Charter is enough to give Allison a right in which she can rely upon in her dispute with Berger Transports as it is a field which is covered by EU law as paid annual leave is found under the working time directive[56] and employment law in general is legislated for by the EU. Therefore Allison’s case and Berger Transports fall within the scope of the Charter.
Although the Charter is applicable to Allison’s case it is unlikely that it could benefit her. It’s well established and reaffirmed recently in the case of Hein[57] that the precondition for direct effect and in this case horizontal direct effect will only exist when it can be interpreted that national legislation is inconsistent with the Charter. Article 31 of the Charter makes no reference to the carrying over of annual leave. It states that ‘every worker has the right to an annual period of paid leave’. It seems that Berger Transport has given Allison her annual period of paid leave therefore it is not inconsistent with the Charter. With reference to the carrying over a ‘fair proportion’ of annual leave as stated in the Austrian national law it is likely that the ECJ would find that carrying over one quarter of annual leave is a fair proportion. Therefore the EU Charter is unable to help Allison.
Bibliography
EU Legislation
Working Time Directive of the EU (Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time Official Journal L 299, 18/11/2003 P. 0009 - 0019)
Charter of Fundamental Rights of the European Union [2007] C 303/01
EU Case Law
Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1, CMLR
Case 6/64 Costa v ENEL [1964] ECR 595
Case C- 26/62, NV Algemene Transporten Expeditie Onderneming Van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1, CMLR
Case C- 9/70, Grad v Finanzamt Traunsteain [1970] ECR 825
Case C-41/74, Van Duyn v Home Office [1974] ECR 1337
Case C– 148/78, Pubblico Ministerio v Ratti [1989] ECR 1629
Case C -43/75, Defrenne v SABENA [1976] ECR 455
Case C-188/89, Foster v British Gas plc [1990]
Case C-152/84, Marshall v Southampton Health Authoity, [1986] ECR 723
Case C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] ECR I-7321
Case C- 106/77, Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 629
Case C-176/12, Association de Mediation sociale V Council (AMS) [2014] ECR 3107
CaseC-414/16 Egenberger [2018]
CaseC-193/17, Cresco Investigation V Marcus Atachi [2019]
Case C-68/17 IR v JQ [2018]
Case C-569/16, Bauer [2018]
Case C-684/16, Mac Planck [2018]
Case C- 385/17, Hein v Albert Holzkamm [2018]
[1] Richard Corbett, ‘Young European Federalist Manifesto’ [1977] PL 1 [2] David Marquand, Parliament for Europe ( 1st edn, Cape,1979) [3] Sanford Levinson ‘How the United States Constitution Contributes to the Democratic Deficit in America’ [2007] L.Rev 860 [4] Single European Act [1987] O.J. (L 169) 1, 25 I.L.M. 506 [5] Maastricht Treaty, [1992] O.J. EC C325/5 [6] Marcus Horeth, ‘No way out for the beast’ The unsolved legitimacy problem of European governance’ [2011] EPP 249 [7] Consolidated Version of the Treaty on European Union [2008] OJ C115/13.Art 289 [8] Lisbon Treaty [2007] 2007/C 306/01 Art.2(239)(a) [9] Treaty of Nice [2003] 2001/C 80/01 [10] Treaty of Amsterdam [2003] OJ C/80 [11] European Communities OJ C325/5 Art.251 [12] Robert Thompson ‘Who has the power in the EU? The commission, council and parliament in legislative decision making’ [2006] Blackwell 392 [13] Dexter Lee ‘The European Union’s democratic deficit and options for EU democracy in the 21st century’ [2014] EU 2 [14] EC Treaty Art 192 [15] Lisbon Treaty Art.2(240) [16]EC Treaty Art.252. [17] Stephen Sierberson, ‘The treaty of Lisbon and its impact on the European’s union Democratic Deficit’ [2007] SSRN 445 [18] EC treaty Arts. 99, 102, 103, 106 [19] Jean Claude- Pris , ‘The constitution for Europe: A legal analysis 209’[2006] Annex 2 [20] Lisbon Treaty Arts 1(30)(3) 1(56)(3) [21] Michael Shackleton ‘The Politics of Codecision’. Journal of Common Market Studies [2000] 325 [22] Thomas König and others, ‘Bicameral Conflict Resolution in the European Union: An Empirical Analysis of Conciliation Committee Bargains’[2007], British Journal of Political Science 281 [23] Henry Farrel and Adrienne Heritier (2004) ‘International Negotiation and Intraorganizational Power in Shared Decision Making’ [2004]. Comparative Political Studies 184 [24] Activity reports 1999-2011 [25] Raya Kardasheva ‘Trilogues in the EU legislator’ [2012] Department of European and international studies research paper [26] Anne Rasmussen, ‘Early Conclusion in Bicameral Bargaining’ [2011] 41 [27] Christine Reh and others (2013) 'The Informal Politics of Legislation’ [2013] [28]Jeffrey Stacey, ‘Displacement of the Council via Informal Dynamics? Comparing the Commission and Parliament’. [2003] Journal of European Public Policy 936 [29]Harry Mahoney ‘Complex EU law-making dubbed “infernal, undemocratic”’ [2013] [30] Christilla Roederer-Rynnin. and Justin Greenwood, [2015] ‘The culture of trilogues’, Journal of European Public Policy 1151 [31] European economic and social committee ‘Investigation of informal Trilogue negotiations since Lisbon treaty [2017] 6 [32] TFEU Art 15(2) [33] Working Time Directive of the EU (Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time Official Journal L 299, 18/11/2003 P. 0009 - 0019) [34] Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1,CMLR [35] Case 6/64 Costa v ENEL [1964] ECR 595 [36] TFEU art.288 [37] 2003/88/EC Working Time Directive Art.7(2) [38] Case C- 26/62, NV Algemene Transporten Expeditie Onderneming Van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1,CMLR [39] Case C- 9/70, Grad v Finanzamt Traunsteain [1970] ECR 825 [40] Case C-41/74, Van Duyn v Home Office [1974] ECR 1337 [41] Case C– 148/78,Pubblico Ministerio v Ratti [1989] ECR 1629 [42] Case C -43/75, Defrenne v SABENA [1976] ECR 455 [43] Case C-188/89,Foster v British Gas plc[1990] [44]Case C-152/84, Marshall v Southampton Health Authoity, [1986] ECR 723 [45]Case C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] ECR I-7321 [46] Case C- 106/77, Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 629 [47] TEU art. 6(1) [48] EUCFR Art 51(1) [49] Case C-176/12, Association de Mediation sociale V Council (AMS) [2014] ECR 3107 [50] CaseC-414/16 Egenberger [2018] [51] CaseC-193/17, Cresco Investigation V Marcus Atachi [2019] [52] Case C-68/17 IR v JQ [2018] [53] Case C-569/16, Bauer[2018] [54] Case C-684/16, Mac Planck [2018] [55] Ibid [57] Case C- 385/17, Hein v Albert Holzkamm [2018]