Neutral Citation Number: [2013] EWHC 1657 (Comm)  
 
Case No: 2012 Folio 1518  
IN THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISION  
COMMERCIAL COURT  
 
Royal Courts of Justice  
Rolls Building  
Fetter Lane   
London EC4A 1NL  
Date: 20/06/2013  
Before  : 
MR JUSTICE FIELD  
- - - - - - - - - - - - - - - - - - - - - 
Between :  
 
 (1)British Airways Plc  
(2) International Consolidated Airlines Group S.A.   
 - and - Claimants  
 (1) Sindicato Espanol de Pilotos de Lineas Aereas  
(2) The International Federation of Airline Pilots 
Association   
 
Defendants  
- - - - - - - - - - - - - - - - - - - - - 
- - - - - - - - - - - - - - - - - - - - - 
 
James Flynn QC, Nicholas Yell and Richard Blakel ey (instructed by  Bufete Alexander 
Pitts) for the 1st Defendant  
Hugh Mercer QC and Iain Quirk  (instructed by Baker & McKenzie LLP ) for the Claimants  
The 2nd Defendant did not appear and was not represented.  
 
Hearing date : 26 April 2013  
- - - - - - - - - - - - - - - - - - - - - 
Judgment  
Mr Justice Field :  
Introduction  
 
1. The question to be decided on this application is whether the court has jurisdiction 
under EC Regulation 44/2001 (“the Regulation”) to determine the claim brought by 
the Claimants against the 1st Defendant (“ SEPLA ”), a Spanish trade union, for 
damages and declaratory and injunctive relief alleging that strikes of Spanish airline 
pilots organised by the 1st Defendant  were unlawful under Spanish law in that they 
were in breach of the Claimants’ right to freedom of establis hment and to provide 
cross border services under Articles 49 and 56 of the Treaty on the Functioning of the 
European Union (“TFEU”).  
2. The 2nd Claimant (“ IAG”) is the parent company of the 1st Claimant (“ BA”) and 
Iberia Airlines (“ Iberia ”). It was formed in J anuary 2011 upon the merger of BA and 
Iberia . IAG is a Spanish registered company, but its shares are traded on the London 
Stock Exchange as well as on the Spanish Stock Exchange. Its corporate head office 
and principal place of bus iness are in London. It is responsible for the management of 
the combined group including the delivery of a joint business and merger synergy 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 plan. The rest of the operational activities of the group are carried out by the operating 
companies, Iberia in Spain and BA in London.  
3. SEPLA  is an independe nt Spanish trade union of Spanish airline pilots which was 
founded in 1978. It is registered as such with the Spanish Ministry of Employment 
and has its seat at Madrid,  Spain. It has no establishment, office or other presence in 
the UK. Under Article 28.2 of the Spanish Constitution, the right to strike is an 
employee’s fundamental right.  As such it prevails over the right to work provided for 
in Article 3 5.1 of the Constitution.  
4. As its name suggests, the 2nd Defendant (“ IFALPA ”) is a federation of air line pilots  
associations of which  SEPLA  is a member. It appears that IFALPA  has been 
domiciled in Montreal, PQ, Canada since January 2013 but t here is a g ood arguable 
case that it was domiciled within the jurisdiction at the time when the Claim Form 
was issued  on 16 November 2012 .  
5. In October 2011 , IAG announced the intention of launch ing a new low-cost airline, 
Iberia Express . Whilst Iberia’ s long haul business had been  profitable, its domestic 
(short haul) and European (medium haul) business es had been historically 
unprofitable. The Claimants contend that thi s had  been due to two main factors: (i) 
competition from low -cost airlines  such as R yanair and Ea syjet and from high-speed 
rail services ; and (ii) the high cost  of pilots and cabin crew. The plan was that Iberia 
Express would hire new pilots and crew at competitive market rates significantly 
lower than those paid to pilots and crew  under current Iberia collective agreements . In 
IAG’s estimation, without  new competitive rates of pay for short and medium haul 
flights, Iberia would continue to make substantial losses on these sectors of its  
business.  
6. IAG offered guarantees to SEPLA  and its pilot members that there would be no job 
losses at Iberia but this did not neutralise SEPLA ’s hostility to Iberia Express 
employing pilots and cabin crew on less favourable terms than those enjoyed by its 
members employed b y Iberia. In December 2011  and January and February 2012, 
pilots employed by Iberia went on strike at the urging of SEPLA  and SEPLA  called 
for further strikes in March, April and May 2012 . In the event, the strikes planned for 
March and  early April 2012 did not go ahead  and the remaining strikes were called 
off on 27 April 2012. Over all, the pilots were on strike for 18 days in the period 
December 2011 to 27 April 2012 . The principal objective of the strikes as stated in 
SEPLA ’s strike n otices was to halt the transfer by Iberia of short and medium 
business to Iberia Express or any other company other than as regu lated under  the pre -
existing collective agreement . 
7. On 7 December 2011, IFALPA  sent a letter to all of its member as sociations bearing 
the heading “Request for Mutual Assistance by Spanish Air Line Pilots 
Association (SE PLA)”. The letter stated, inter alia, that Iberia Express  
“ … endangers pilots’  jobs, infringes the scope clause in the 
collective agreement established between the company and the 
trade union, and aims at wat ering down the pilot market by 
having reduced terms and conditions below those in any other 
comparable airline. … The company’ s strategic plan is clearly 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 to expand the Iberia Express’s fleet at the expense of the main 
carrier, which would eventually disappear, with all its flying 
being outsourced to Iberian Express… Therefore the Iberia 
pilots will be commencing strike action on the 18th and 29th 
December 2011 and  is requesting the implementation of the 
following Mutual Assistance polices; Request for Extra Flights 
and/or Increased Capacity … Request for Ban on Wet Leasing 
… Request for Recruitment Ban, Request for Denial of 
Training Facilities … Request for Denial of Cockpit Crew 
Contracting…  
8. On 2 April 2012, Iberia filed a claim against SEPLA  and SEPLA ’s Trade Union 
Section in Iberia at the National Court, Labour Division. The gist of the claim was 
that the strikes were in opposition to the lawful decision to create Iberia Express and 
amounted to a violation of fundamental right s under Spanish law.   
9. On 27 April 2012, the Spanish Cabinet ordered the parties to the dispute to submit 
their differences regarding the strike to a compulsory arbitration  leading to an award 
based not on the legal rights and wrongs of the dispute but on general grounds of 
fairness. This order was made under Article 10 of Royal -Decree Law 17/1977. On 24 
May 2012, the arbitrato r issued his award (“the first Laudo”)  which Iberia appealed to 
the National Court.  Iberia Express also appealed on the ground that it had not been 
called on to participate in the arbitration notwithstanding that it was affected by the 
award and was an essential party to the dispute. Iberia Express’s appeal succeeded. 
On 2 November 2012, the National Court ordered the arbitrator to retract the 
proceedings to the point where Iberia Express should have been heard and annulled 
the proceedings thereafter and the first Laudo. Iberia, Iberia Express and SEPLA  have 
all appealed the National Court’s decision to the Supreme Court and those appeals are 
still pending, as is Iberia’s appeal against the first Laudo to the National Court.  
10. On 21 December 2012, the arbitrator issued a second award (“the second  Laudo”) 
which was not materially different from the first  Laudo , save that Iberia Express was 
now a party . This second Laudo too has been appealed to the National Court by Iberia 
and Iberia Express. At present, t hose appeals are stayed by order of the National Court 
pending judgement by the Spanish Supreme Court in the three appeals against the first 
Laudo.  
11. Following the order directing compulsory arbitration of the dispute between Iberia, 
Iberia Express and SEPLA , Iberia  withdrew it s claim against SEPLA  in the Labour 
Division of the National Court.  
The cause of action reli ed on by the Claimants  
12. The Claimants contend that : (i) Spanish law applies to their claim s against both 
defendants , which includes the right under EU law to the freedom of establishment 
and freedom t o provide cross -border services provided for in Artic les 49 and 5 6 of 
TFEU; (ii) the strikes and/or the effects of the strikes called for by SE PLA with the 
participation IFALPA  were unlawful in that they constitute d discriminatory measures 
and/or restrictions cont rary to Articles 49 and 56 TFEU; and (iii)  SEPLA and 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 IFALPA  are accordingly l iable in damages for loss caused  by their unlawful conduct 
and the Claimants are entitled to declaratory and injunctive relief.    
13. Article s 49 and 56 of TFEU (ex Article s 43 and 49 TEC) provide : 
Article 49 TFEU  
 
Within the framework of the provisions set out below, 
restrictions on the freedom of establishment of nationals of a 
Member State in the territory of another Member State shall be 
prohibited. Such prohibition shall also apply to re strictions on 
the setting -up of agencies, branches or subsidiaries by nationals 
of any Member State established in the territory of any Member 
State.  
Freedom of establishment shall include the right to take up and 
pursue activitie s as self -employed persons and to set up and 
manage undertakings, in particular companies or firms within 
the meaning of the second paragraph of Article 54, under the 
conditions laid down for its own nationals by the law of the 
country where such establish ment is effected, subject to the 
provisions of the Chapter relating to capital.  
Article 56 TFEU  
 
Within the framework of the provisions set out below, 
restrictions on freedom to provide services within the Union 
shall be prohibited in respect of nationals of Member States 
who are established in a Member State other than that of the 
person for whom the services are intended.  
The European Parliament and the Council, acting in accordance 
with the ordinary legislative procedure, may extend the 
provisions of the Chapter to nationals of a third country who 
provide services and who are established within the Union.  
14. The Claimants place great reliance on the decision of the ECJ in ITF and Finnish 
Seamen’s Union v Viking Line ABP and OÜ Viking  Line Eesti  [2007] ECR 1 -10779  
which is the leading authority on the right to freedom of establishment in the context 
of trade union action . Here, Viking Line ABP  (“Viking”) , a Finnish company, used its 
vessel, the Rosella , to operate a ferry service betwe en Finland and Estonia. The ferry 
service was loss -making and i n an attempt to turn the business round, Viking sought 
to reflag the Rosella  in Estonia with a view to agreeing lower rates of pay for the crew 
with an Estonian trade u nion. The existing crew were members of the Finnish 
Seamen’s Union  (“FSU”) with whom Viking had a collective agreement governing 
the crew’s terms and conditions. FSU called a strike. It demanded that Viking should 
abandon its plan to reflag or, in the  event of reflagging, insisted that the size of the 
crew be increased by eight and the entire crew employed under Finnish labour 
conditions. FSU was an affiliate of ITF, a federation of transport workers unions 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 based in London , which at the request of FSU sent a circular to all its affiliated trade 
unions requesting them  not to negotiate with Viking. Viking settled the strike with 
FSU and in time wanted to make another attempt to reflag t he Rosella  but ITF had 
never withdra wn their circular . Anticipating that a new attempt to reflag would result 
in collective action by ITF and FSU, Viking brought an action in the Commercial 
Court in London seeking, inter alia, an injunction restraining interference with its 
rights to freedom of movement. The action was tried by Gloster J who granted the 
injunctive relief sought, holding that the defendants could not lawfully prevent Viking 
from reflagging the vessel in Estonia since this involved the exercise of an 
establishment right. ITF and FSU appealed to the Court of Appeal who referred what 
in essence were three questions to the ECJ for a preliminary ruling: (i) Did collective 
action initiated by a trade union or group of trades union to induce an undertaking to 
enter into a collective agreement whose terms were liable to deter it from exer cising 
freedom of establishment  fall outside Article 43 EC? (ii) Did Article 43 confer rights 
on a private undertaking which could be relied on against a trad e union or associat ion 
of trade  union s? (iii) Did the collective action taken by ITF and FSU against Viking 
constitute a restriction within the meaning of Article 43 EC and , if so, to what extent 
could such a res triction be justified?   
15. The ECJ addressed  these question s in so far as they related to the interpretation of 
Article 43 EC. It answered “no” to the first question. The court observed that 
according to settled case -law, Articles 39, 43 and 49 EC did  not apply only to actions 
of public authorities but extend ed to ru les of any other nature aimed at regulating in a 
collective manner gainful employment, self -employment  and the provisions of 
services (para 33).  Since working conditions in the different Member States are 
governed sometimes by provisions laid down by law o r regulation and sometimes by 
collective agreements and other acts concluded or adopted by private persons, limiting 
application of the prohibitions laid down by these articles to acts of a public authority 
would risk creating  inequality in its application  (para 34). Collective action such as 
that taken against Viking was inextricably linked to the collective agreement FSU was 
seeking. It followed that collective action to induce an undertaking to enter into a 
collective agreement whose terms were liable to  deter it from exercising freedom of 
establishment did not fall outside Article 43 EC (paras 36 -37).  
16. The ECJ stated that the right to take collective action , including the right to strike,  is 
recognised both by various international instruments which the Member States have 
signed or cooperated in and by instruments developed by Member States at 
Community level or in the context of the EU. However, although the right to strike 
was a fundamental right which  forms part of the general principles of Community 
Law,  the fundamental nature of that right is not such as to render Article 43 EC 
inapplicable to the collective action in the instant proceedings (paras 43 -47). 
17. As to the second question, the court hel d that Article 43 is capable of conferring rights 
on a private undertaking which may be relied on against a trade union or an 
association of trade unions. The principal strands of the court’s reasoning are found in 
the following parag raphs of the judgement . 
57. … [I]t was clear from the case law that the abolition, as 
between Member States, of obstacles to freedom of movement 
for persons and freedom to provide services would be 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 compromised if the abolition of State barriers could be 
neutralised by obstacles  resulting from the exercise, by 
associations or organisations not governed by public law of 
their legal autonom y (Walrave and Koch , paragraph 18; 
Bosman , paragraph 83; Deliège , paragraph 47; Angonese , 
paragraph 32; and Wouters and Others ,paragraph 120).  
58. Moreover, the Court has ruled, first, that the fact that 
certain provisions of the Treaty are formally addressed to the 
Member States does not prevent rights from being conferred at 
the same time on any individual who has an interest in 
compliance with  the obligations thus laid down, and, second, 
that the prohibition on prejudicing a fundamental freedom laid 
down in a provision of the Treaty that is mandatory in nature, 
applies in  particular to all agreements intended to  regulate 
paid labour collectiv ely …  
59. Such considerations must also apply to Article 43 EC which 
lays down a fundamental freedom.  
61. It follows that Article 43 EC must be interpreted as 
meaning that, in circumstances such as those in the main 
proceedings, it may be relied on by a pr ivate undertaking 
against a trade union or an association of trade unions.  
62. This interpretation is also supported by the cas e-law on the 
Treaty provisions on the free movement of goods, from which 
it is apparent that restrictions may be the result of ac tions by 
individuals or groups of such individuals rather than caused by 
the State (see Case C -265/95 Commission v France  [1997] 
ECR 1 -6959, paragraph 30, and Schmidberger , paragraphs 57 
and 62).   
65. There is no indication in [the case law referred to par agraph 
57] that could validly support the view that it applies only to 
associations or to organisations exercising a regulatory task or 
having quasi -legislative powers. Furthermore, it must be 
pointed out that, in exercising their autonomous power, 
pursuan t to their trade union rights, to negotiate with employers 
or professional organisations the conditions of employment and 
pay of workers, trade unions participate in the drawing up of 
agreements seeking to regulate paid work collectively.  
18. In answer to  the third question, the court held that: (1) collective action such as that 
envisaged by FSU had the effect of making less attractive, or even pointless, Viking’s 
exercise of its right to freedom of establishment in that it prevented Viking and its 
subsid iary from enjoying the same treatment in the host Member State as other 
economic operators established in that State  (para 72) . (2) Collective action to 
implement ITF’s policy of combating the use of flags of convenience by seeking to 
prevent shipowners fr om registering their vessels in a State other than that of which 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 the beneficial owners of those vessels are nationals was liable to restrict Viking’s 
exercise of its right of freedom of establishment  (para 73) . (3) A restriction on the 
freedom of establishment can be accepted only if it pursues a legitimate aim 
compatible with the Treaty and is justified by overriding reasons of public interest; it 
must also not go beyo nd what is necessary in order to  attain its objective (para 75 ). (4) 
The protection of workers is a legitimate interest which, in principle, justifies a 
restriction of one of the fundamental freedoms guaranteed by the Treaty  (para 77). (5 ) 
The rights under the Treaty on the free movement of goods, persons and capital  must 
be balanced against the objectives pursued by social policy including improved living 
and working conditions (para 79). (6) If jobs or conditions of employment at issue 
were not jeopardised or under serious threat, the objective of protecting workers  
would not justify a restriction on the exercise of one of the fundamental freedoms  
(para 81). (7 ) Collective action seeking to implement ITF’s policy that results in 
shipowners being prevented from registering their vessels in another Member State 
cannot be objectively justified, even if the objective of that policy is also to protect 
and improve workers’ terms and conditions of employment.  
19. Paragraph 90 of the judgement reads:  
 “… Article 43 EC is to be interpreted to the effect that 
collective action such as that at issue in the main proceedings, 
which seeks to induce an undertaking  whose registered office is 
in a given Member State to enter into a collective work 
agreement with a trade union established in that State and to 
apply the t erms set out in that agreement to the employees of a 
subsidiary of that undertaking established in another Member 
State, constitutes a restriction within the meaning of that 
Article. That restriction may, in principle, be justified by an 
overriding reason of public interest, such as the protection of 
workers, provided that it is established that the restriction is 
suitable for ensuring the attainment of the legitimate objective 
pursued and does not go beyond what is necessary to achieve 
that objective.  
The Regulation  
20. In relevant part , the Regulation provides:  
  SCOPE  
 
Article 1  
1. This Regulation shall apply in civil and commercial matters 
whatever the nature of the court or tribunal. It shall not extend, 
in particular, to revenue, customs or administra tive matters.  
 
JURISDICTION  
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
  
Section 1  
 
General Provisions  
 
Article 2  
1. Subject to this Regulation, persons domiciled in a Member 
State shall, whatever their nationality, be sued in the courts of 
that Member State.  
 
Article 3  
1. Persons domiciled in a Member State may be sued in the 
courts of another Member State only by virtue of the rules set 
out in Sections 2 to 7 of this Chapter.  
2. In particular the rules of national jurisdiction set out in 
Annex I shall not be applicable as against them.  
 
Article 4  
1. If the defendant is not domiciled in a Member State, the 
jurisdiction of the courts of each Member State shall, subject to 
Articles 22 and 23, be determined by the law of that Member 
State.  
 
Section 2  
 
Special jurisdiction  
 
Article 5  
A person domiciled in a Member State may, in another 
Member State, be sued:  
 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 ... 
 
3. in matters relating to tort, delict or quasi -delict, in the courts 
for the place where the harmful event occurred or may occur;  
 
Article 6  
A person domiciled in a Member State may also be sued:  
1. where he is one of a number of defendants, in the courts for 
the place where any one of them is domiciled, provided the 
claims are so closely connected that it is expedient to hear and 
determine the m together to avoid the risk of irreconcilable 
judgments resulting from separate proceedings;  
... 
The Claimants’ case on jurisdiction  
21. The Claimants contend that the court has jurisdiction over its claim s against SEPLA  
under Article 6 of the Regulation on the basis that IFALP A was domiciled in England 
at the time the Claim Form was issued and the claims against SEPLA  and IFALPA 
are so closely connected that it is expedient to hear and determine them together to 
avoid the risk of irreconcilable judgments resulting from separate proceedings . 
22. The Claimants also contend that the court has jurisdiction under Article 5.3 on th e 
ground that harm caused by the strikes was suffered by both Claimants within the 
jurisdiction.  
23. It is common ground that where the Regulation applies, the court has no discretion to 
stay proceedings on forum non -conveniens  grounds (see Owusu v Jackson [2005] 
ECR -1 3565 ). Accordingly, if the Claimants’  contentions are made out, this court will 
have no choice but to exercise jurisdiction over the Claimant s’ claim for damages and 
declaratory and injunctive relief against a Spanish trade union  whose members have 
by their national law a  constitutional  right  to strike and where the Spanish 
Government have lawfully exercised a constitutional power to compel the parties to 
the underlying industrial dispute to submit to compulsory binding arbitration.  
Do the Claimants ’ claims come within the Regulation  at all ? 
24. Mr Flynn QC for SEPLA  submitted that he had a knock -out point  : the claims against 
SEPLA  were solely based on the fundamental freedoms guaranteed by Articles 49 and 
56 and as such they were not covered by the Reg ulation because they were not ‘civil 
and commercial matters’  within Article 1 but instead were public law claims.   
25. The phrase ‘civil and commercial matters’  bears an autonomous  meaning . In Sonntag 
v Waidmann [1993] ECR 1 -1963, the question was whether a claim against a German 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 schoolteacher for the accidental death of a pupil in his care on a school trip was a civil 
or commercial matter, notwithstanding that he was a public employee and that the 
duties which he owed to the pupil were, as a matter of German law, governed b y 
public or administrative law. The ECJ held that t he conduct of a teacher in a state 
school in his function as a person in charge of pupils during a school trip  did not 
constitu te an exercise of public powers  since such conduct does not entail the exercis e 
of any powers going beyond those existing under the rules applicable to relations 
between private individuals. In the opinion of the Court, a n action fell outside the 
scope of the Brussels Convention only where the author of the damage against whom 
it is brought must be regarded as a public authority which acted in the exercise of 
public powers.  
26. In Gemeente Steenbergen v Baten [2002] ECR 1 -10489, the ECJ held that a claim 
brought by a Dutch municipality to recover maintenance payments from a former 
husband which the municipality had paid to his wife when the husband defaulted on 
those payments  was a civil matter.  It was necessary to examine the basis and the 
detailed rules governing the bringing of the action. Although only a public body could  
make such a claim, Dutch law characterised the claim against  the husband as a civil 
matter, analogous to the State being subrogated to the wife’s right to maintenance.  
27. In Préservatrice Fonciere TIARD SA v Staat der Nederlanden  [2003] ECR 1 -4867, 
the N etherlands state sued in a national court an insurance company, PFA, on a 
guarantee PFA had given to the claimant in respect of the payment of import and 
export duties and taxes owed by associations authorised to issue TIR carnet. The 
provision of the guar antee was pursuant to an obligation owed by authorised 
associations under Article 5 of the TIR Convention. PFA disputed the jurisdiction of 
the court on the ground that the claim was a commercial or civil matter and therefore 
governed by the Brussels Conve ntion. On a reference from the Dutch court, the ECJ 
held it was necessary to identify the legal relationship between the parties to the 
dispute and to examine the basis and the detailed rules governing the bringing of the 
action (para 23). It was therefore  necessary to consider whether the relationship 
between the Netherlands state and PFA under the guarantee contract is characterised 
by an exercise of public powers on the part of the state going beyond those existing 
under the rules applicable to relations  between private individuals and in the view of 
the ECJ, the guarantee was subject to the rules applicable to private individuals and 
did not involve the  exercise of public powers.  
28. In Frahuil SA v Assitalia SpA  [2004] ECR1 -1543 , an insurance company (Assitalia) 
made a subrogation claim  in Italian proceedings against a French importer of goods 
(Frahuil) into Italy in respect of customs duties it had paid to the Italian customs 
authorities under a guarantee in favour of the forwarding agent, Vegetoil.  On the 
question whether the claim was a civil and commercial matter the ECJ adopted the 
approach it took in Préservatrice Fonciere TIARD , and identified the legal 
relationship between the parties to the dispute and examined the basis of the detailed 
rules governing the action. Frahuil  and Assitalia were each governed by private law  
and were in a relat ionship governed by private law ; further, the claimant was relying 
on a legal remedy provided for under a civil law provision. The action accordingly did 
not amount to the exercise of powers falling outside the rules applicable to 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 relationships between private individuals and therefore it was governed by the 
Brussels Convention.   
29. In Apostolides,  the issue arose (inter alia) whether a claim brought by a disp ossessed 
owner of land in Northern Cyprus against subsequent purchasers of the land was a 
civil and commercial matter within Article 1 of the Regulation. The ECJ held:  
42. The autonomous interpretation of the concept of “civil and 
commercial matters” results in the exclusion of certain judicial 
decisions from the scope of Regulation No 44/2001, by reason 
either of the legal relationships between the parties to the action 
or the subject -matter of the action (see LTU, paragraph 4; 
Rüffer , paragraph 14; Préservatrice Fonciere TIARD , 
paragraph22 and Lechouritou and Others , paragraph 31).  
43. Thus, the Court has held that, a lthough certain actions 
between a public authority and a person governed by private 
law may come within the context, it is otherwise where the 
public authority is acting in the exercise of public powers  (see 
LTU, paragraph 4; Rüffer , paragraph 8; Sonntag , paragraph 20; 
Préservatrice Fonciere TIARD , paragraph22 and Lechouritou 
and Others , paragraph 31).  
44. The exercise of public powers by one of the parties to the 
case, because it exercises powers falling outside the scope of 
the ordinary legal rules applic able to relationships between 
private individuals, excludes such a case from civil and 
commercial matters with the meaning of Article 1 (1) of 
Regulation No 44/2001) ( see to that effect, LTU, paragraph 4; 
Rüffer , paragraphs 9 and 16; Sonntag , paragraph 22;  
Préservatrice Fonciere TIARD , paragraph 30 and Lechouritou 
and Others , paragraph 34).  
30. Mr Flynn cited the following observations of Professor Briggs  in his well -known 
work Civil Jurisdiction and Judgments , 5th ed .   
(1) In deciding whether a claim is within or without the 
Regulation, the court ‘must isolate and focus upon the legal 
obligation which the claimant seeks to enforce, and to 
characterise it as civil or commercial, or not, within the context 
of the law of the nat ional court seised’1.  
(2) On the basis of the decisions of the ECJ in Gemeente 
Steenbergen v Baten [2002] ECR 1 -10489, Freistaat Bayern v 
Blijdenstein  [2004] ECR 1 -981 and Frahuil SA v Assitalia SpA , 
“... if the claim is based upon the defendant’s liability to 
perform obligations and duties cast upon him by private law, 
then even if the claimant is a public authority, relying upon a 
                                                
1 Para 2.31, p.65  
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 cause of action which happens to be vested in it, as a public 
authority alone, it will still be enforc ing duties and rights which 
bind the defendant according to the private law of the state in 
question, and the proceedings are to be regarded as arising in a 
civil or commercial matter. The fact that the claimant is acting 
in its capacity as a public author ity is quite irrelevant to the 
jurisdictional issue.”2  
(3) “… if the claim is brought against a defendant which owes 
the duty in respect of which it is sued and whic h performs those 
duties, as a matter of public law, the proceedings will not be in 
a civil or commercial matter, even if the allegation made 
against the defendant is that it was negligent, or acted without 
legal excuse for what it did, in a way which is, i n terms of its 
content, practically identical with duties owed by other persons 
in other contexts.”3 
(4) “ … if a public authority can act by the exercise of private 
powers, a private body may sometimes act in the exercise of 
public powe rs, whether these are undertaken within a scheme 
of public regulation, or take the form [of] public powers 
delegated to a private provider.”4 
31. Citing Préservatrice Fonciere TIARD SA v Staat der Nederlanden [2003] ECR 1 -
4867, para 30  ; Apostolides v Orams  [2009] ECR -1 3571, paras 43 -45  and Professor 
Briggs’ observation (4) above, Mr Flynn submitted that the key determinative factor 
in deciding if the claim was a civil or commercial matter was whether the cla im is 
brought against a defendant who, because of his exercise of his rights and powers is 
subject to obligations and duties which are not simply matters of the ordinary private 
law to which all are subject, but are exorbitant in the sense that they entail  the 
exercise of powers going beyond those existing under the rules applicable to relations 
between ordinary private individuals or entities.  
32. In Mr Flynn’s submission, the rights sought to be enforced by the Claimants are 
fundamental rights that are no t located in the sphere of ordinary private law but are in 
the nature of public law rights that in principle are exercisable only against Member 
States and emanations of Member States. Although it is a private entity, SEPLA  is 
exceptionally obliged to resp ect the freedoms enshrined in Articles 49 and 56 TFEU 
because it occupies a special position whereby it is capable of exercising powers to 
regulate the conditions of the labour market and to this extent it is to be assimilated to 
a Member State body. For these reasons, SEPLA ’s obligations to respect the Article 
49 and Article 56 freedoms are exorbitant to those obligations to which it is subject as 
a matter of ordinary private law and it follows that the Claimants’ claims are not civil 
or com mercial matters.  
                                                
2 Para 2.31, p.66  
3 Para 2.33, p.70.  
4 Para 2.33, p. 69  
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 33. Mr Mercer QC for the Claimants argued that the only matters that were outside the 
Regulation were matters concerned with the exercise of public law powers by a public 
authority. SEPLA  was not a public authority and the Claimants’ claim s did not 
involve the exercise of  public law powers . Rather, the claims  were civil claims for 
illegal conduct that had caused loss. The y were analogous to claims for damages for 
breach of the treaty prohibition against anti -competitive agreements and it wa s the 
view of the editors of Dicey , Morris and Collins on The Conflict of Laws  “that it was 
likely  that claims for damages caused by restrictive practices or unfair competition, 
which often have public law elements, come within the scope of the Regulation and 
the Convention.”5 Professor Briggs’ observation that if a public authority can act by 
the exercise of private powers, a private body may sometimes act in  the exercise of 
public powers , was unsupported by authority and in any e vent was directed to whether 
private utility companies might be seen to be exercising public powers delegated by 
the state, or contained in a scheme of public regulation.  
34. Mr Mercer submitted that it was implicit in the ECJ’s reasoning in Viking6 that all 
individuals were subject to the obligations underpinning the EU fundamental 
freedoms of movement of goods and establishment. He also observed that if it had 
been seriously arguable that the Regulation did not apply to claims that industrial  
action breached the treaty provisions providing for the fundamental freedom of 
establishment, the point would have been taken either by defendant trade unions or by 
the national courts both in Viking [2005] EWHC 1222 (Comm); [2005] CMLR 29 and 
The Tor Cal edonia  [2004] All ER (EC) 845.  
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 
Articles 49 and 56 TFEU import treaty obligations lai d 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  Articles 49 and 56 , but this 
in my opinion is because for this purpose they are to be deemed t o be emanations of 
the state.  As submitted by Mr Flynn, this analysis  is supported by paragraph 29 of the 
Opinion of Advocate General Trstenjak in Fra.bo SpA v DVGW  Case C -171/11 :  
As the fundamental freedoms are addressed principally to the 
Member States, only action taken by the Member States can in 
principle be measured against fundamental freedoms. (11)7 In 
settled case -law, however, the Court tends to take a broad view 
of the concept of measures taken by Member States, in  that it 
considers that a person or institution need not be formally 
classified as exercising official authority or be a public body for 
the measures taken by that person or institution to be classified 
                                                
5 15th ed, para 11 -034 
6 At pa ra 62 
7 With respect to the free movement of goods, see only the judgments in Case 311/85 Vereniging van Flaamse 
Reisbureaus [1987] ECR 3801, paragraph 30 and Case C -159/00 Sapod Audic  [2002] ECR 1 -5031, paragraph 
74. 
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 as action taken by a Member State, to which the funda mental 
freedoms apply.  The Court thus examines measures taken by 
professional organisations for their compatibility with the 
fundamental freedoms where, under national law, those 
organisations have been granted powers similar to sovereign 
powers.  (12)8 Measures taken by legal persons established 
under private law and controlled, directly or indirectly, by the 
Member State  concerned are also deem ed to be public 
measures attributable to that Member State.  (13)9 
36. In paragraph 33 of her  Opinion, Advocate General Trstenjak notes the Viking decision 
and observes that such direct application of t he 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 Article 49 and Article 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 Articles 49 and/or 
56 TFEU will have to conduct a sensitive balancing exercise in which it weigh s 
SEPLA ’s constitutional right to strike and the fundamental right to strike which forms 
part of t he gene ral principles of Community Law against the fundamental freedoms 
enshrined in Articles 49 and 56. In my judgment, such an exercise will involve a 
resort to notions of public law rather than to private law.  
38. In Viking  in the Commercial Court, FSU originally stated that it intended to challenge 
the jurisdiction of the English court under the Regulation, but it later withdrew its 
jurisdictional challenge. Understandably , therefore , the court proceeded on the basis 
that it had ju risdiction to try the action, and indeed relied on the fact that it had 
jurisdiction as a reason for rejecting the defendants’  contentions that the  court could 
not or ought not to decide  the case on grounds of non -justiciability. I accordingly do 
not accep t the proposition that Viking points strongly to the conclusion that the 
Claimants’ claims herein are civil or commercial matters. Nor do I think that much 
reliance can be placed on The Tor Caledonia . There an action was brought in the 
Labour Cou rt in Denmark  challenging the legality of industrial action called by a 
Swedish maritime trade union against the claimant owner of the vessel Tor Caledonia  
for the purpose of securing a collective agreement for that vessel’s Polish crew on a 
ferry rou te between Sweden and the UK. The vessel was then withdrawn from the 
ferry route and the owners brought an action for damages against the Swedish trade 
                                                
8 See only the judgment in Joined Cases 266/87 and 267/87 Association of Pharmaceutical Importers and 
Others [1989] ECR 1295, paragraph 13 et seq., in which the Court concluded the measures taken by the Britis h 
Society representing pharmacists may, with part icular account taken of the powers conferred on it, constitute 
measures within the meaning of Article 34 TFEU. The Court came to the same conclusion in its judgmen t in 
Case C -292/92 Hünermund and Others  [1991] ECR 1 -6787, paragraph 12 et seq., regarding me asures taken by 
the Landesapothenkammer Baden -Wüttemburg.  
9 See only the judgments in Case C -325/00 Commission v Germany [2002] ECR 1 -9977, paragraph 14 et seq., 
and Case 302/88 Hennen Olie [1990] ECR 1 -4625, paragraph 13 et seq.  
MR JUSTICE FIELD  
Approved Judgment  (1) British Airways Plc and (2) International Consolidated 
Airlines Group S.A. v (1) Sindicato Espanol de Pilotos de 
Lineas Aereas and (2) The International Federation of Airline 
Pilots Association  
 
 union in the Danish Maritime and Commercial Court.  The claimants contended tha t 
the court had jurisdiction under Article 5 (3) of the Brussels Convention on the 
ground that the damage resulting from the collective action was suffered in Denmark. 
The ECJ held that the court did indeed have jurisdicti on under Article 5 (3). However: 
(i) the point whether the claim was a civil or commercial matter was not raised; (ii) 
there is nothing to suggest that the claim was based on an infringement of the 
fundamental right of establis hment or free movement of goods -- Viking  was not 
decided in the Commercial Court until June 2005 and in the ECJ until December 
2007; (iii) nor is there any reference to any constitutional right to strike under the law 
of Sweden.  
39. I accordingly find that this court does not have jurisdiction under the Reg ulation to 
determine the Claimants’ claims.  
40. No jurisdictional basis other than the Regulation was relied on. If some other basis 
had been advanced, and a jur isdiction gateway established, I would have had no 
hesitation in deciding that jurisdiction sh ould be declined, for it is obvious to me that 
if the court had a discretion to decline jurisdiction on forum non conveniens  grounds , 
as it would have on this hypothesis,  it would decide that it was wholly inappropriate 
for an English court to pronounce o n the lawfulness under Spanish law of calls for 
strike action in Spain  by a Spanish trade union and where compulsory arbitration had 
been lawfully ordered by the Spanish Government.   
41. It follows that SEPLA ’s application succeeds and  the court will grant a declaration 
that it has no jurisdiction to t ry the Claimant s’ claims brought against  it.