British Airways Plc & Anor v Sindicato Espanol De Pilotos De Lineas Aereas & Anor

Claims founded on EU fundamental freedoms may fall outside Regulation 44/2001 where determining them requires enforcement of treaty obligations imposed on Member States and a public-law assessment. The autonomous concept of a civil and commercial matter depends on the legal relationship between the parties and the basis and detailed rules of the claim. A dispute involving trade-union strike action may require balancing treaty freedoms against the constitutional right to strike. If the Regulation does not apply, its special jurisdiction provisions cannot confer jurisdiction.

British Airways and International Consolidated Airlines Group sued the Spanish trade union SEPLA for damages and declaratory and injunctive relief. They alleged that strikes organised by SEPLA infringed their rights of establishment and to provide cross-border services under Articles 49 and 56 TFEU. They relied on Articles 5(3) and 6(1) of Regulation 44/2001.

The central issue was whether the claims were civil and commercial matters within Article 1 of the Regulation, against the background of Spanish strike action, a constitutional right to strike, and compulsory arbitration ordered by the Spanish Government.

1. Application granted. The court declared that it had no jurisdiction under Regulation 44/2001 to try the claims against SEPLA.
2. The expression civil and commercial matters has an autonomous meaning. The court must examine the legal relationship between the parties and the basis and detailed rules governing the claim. Proceedings fall outside the Regulation where the defendant is acting in the exercise of public powers going beyond those available under ordinary private-law rules.
3. SEPLA’s obligations to respect Articles 49 and 56 TFEU arose because trade unions were treated, for that purpose, as emanations of the state. The source of those freedoms remained treaty provisions imposing obligations on Member States.
4. Determining whether the strikes infringed those freedoms required balancing them against SEPLA’s constitutional and fundamental right to strike. That exercise involved public-law rather than private-law notions. The claims therefore were not civil and commercial matters under Article 1.
5. Viking Line did not determine the issue because jurisdiction had not been contested there. The Tor Caledonia was distinguishable because the relevant civil-and-commercial issue, fundamental freedoms, and constitutional right to strike had not been considered.
6. No other jurisdictional basis was advanced. The court added that, if another gateway existed, it would decline jurisdiction as wholly inappropriate for an English court to determine the lawfulness under Spanish law of strike calls in Spain by a Spanish trade union while compulsory arbitration was pending.

First-instance jurisdiction application in the High Court (Commercial Court). No earlier decision in the present proceedings is stated.