EUPillar British Airways plc & Anor v Sindicato Espanol de Pilotos de Lineas Aereas & Anor [2013] EWHC 1657 (Comm)

Summary

This case was concerned with the scope of Brussels I. The claimants were part of the BA group of companies. The defendant, SEPLA, was a syndicate which was representing the Spanish pilots, and the second defendant, IFALPA, was the Federation of Airline Pilots Associations. The claims were “for damages and declaratory and injunctive relief alleging that strikes of Spanish airline pilots organised by the first defendant were unlawful under Spanish law in that they were in breach of the claimants' right to freedom of establishment and to provide cross border services under arts 49 and 56 of the Treaty on the Functioning of the European Union (“TFEU”).” [1] The claimants wanted to establish jurisdiction under Article 6(1). The defendants challenged the jurisdiction of the English court, submitting that the dispute was not within the scope of Brussels I. The English High Court upheld the jurisdiction challenge. Mr Justice Field held: “35 In my judgement, Mr Flynn's contention that the claimants' claims are not “civil and commercial” matters is well founded. The prohibitions on restrictions on the freedoms of establishment and the provision of services within the EU expressed in arts 49 and 56 TFEU import treaty obligations laid upon the Member States, with the result in my view that the enforcement of those obligations is not a civil or commercial matter but one involving the application of public law. True it is that trade unions have been held to be subject to the obligation to maintain the fundamental freedoms enshrined in the EC predecessors to arts 49 and 56 , but this in my opinion is because for this purpose they are to be deemed to be emanations of the state. 36 In [33] of her opinion, Advocate General Trstenjak notes the Viking [2005] EWHC 1222 (Comm); [2005] 3 C.M.L.R. 29; [2006] I.L.Pr. 4 decision and observes that such direct application of the fundamental freedoms involves a kind of collective rules of a non-public law nature. As to this, I would observe that it remains the case that the source of the fundamental freedoms are treaty provisions imposing obligations on states. Moreover, it is extremely difficult to conceive of circumstances where a private individual's acts could constitute a breach of the rights of establishment and free movement of goods and I accept Mr Flynn's submission that SEPLA's obligations to respect the art.49 and art.56 freedoms are exorbitant to those obligations to which it is subject as a matter of ordinary private law. 37 Further, a court having to decide whether SEPLA was in breach of arts 49 and/or 56 TFEU will have to conduct a sensitive balancing exercise in which it weighs SEPLA's constitutional right to strike and the fundamental right to strike which forms part of the general principles of Community Law against the fundamental freedoms enshrined in arts 49 and 56 . In my judgment, such an exercise will involve a resort to notions of public law rather than to private law.” [35-37]