Govia Gtr Railway Ltd v The Associated Society of Locomotive Engineers and Firemen

For an interlocutory injunction against industrial action, the applicant must first show a serious issue to be tried. Where EU free-movement rights are invoked horizontally against a trade union, the relevant restriction arises from the object or purpose of the collective action, not simply from the disruption or loss it causes. Article 49 does not protect a cross-border business from ordinary bargaining pressure or confer a more favourable position than locally based enterprises. A passenger-based Article 56 claim also fails where the alleged interference is indirect, uncertain or avoidable through alternative routes. The court left the transport-specific effect of Article 58 and justification issues undecided, but dismissed the appeal and refused the injunction.

GTR, operator of Southern Rail, sought an interlocutory injunction restraining ASLEF from strike action concerning the proposed expansion of Driver Only Operated Passenger Trains. Sir Michael Burton, sitting in the Commercial Court, refused the application, holding that GTR had not shown an arguable infringement of Articles 49 or 56 of the Treaty on the Functioning of the European Union.

On appeal, GTR relied on the French shareholding in its business and on disruption to passengers travelling through Gatwick Airport. The central issues were whether the strike could constitute a restriction on freedom of establishment or freedom to provide services, and whether GTR could rely on passengers’ rights.

1. Disposition. The appeal was dismissed and the interlocutory injunction was refused. Applying the American Cyanamid framework, GTR had not established a serious issue to be tried. It was therefore unnecessary to consider the balance of convenience or justification.
2. Article 49. The court accepted that, in an appropriate case, Article 49 of the Treaty on the Functioning of the European Union may apply horizontally to trade unions. The authorities, including Gebhard ([1995] ECR I-4165), Viking ([2007] ECR I-10779) and Holship (Case E 14/15), showed that the critical question was the object or purpose of the collective action. The relevant restriction was not the damage caused by a strike considered in isolation.
3. A strike directed to ordinary bargaining over employment terms did not, without more, deter establishment or make it less attractive. Article 49 secured access to an open market; it did not give a foreign-owned company more favourable protection than locally based enterprises. Treating every strike with a cross-border effect as a prima facie restriction would seriously undermine the fundamental right to strike.
4. Article 56. The passenger-based claim faced substantial obstacles. The court’s provisional view was that Article 58 placed transport services under a special regime which a railway operator should not circumvent by relying on passengers’ rights. That point was not conclusively decided. Laval ([2008] IRLR 171) supported the same object-or-purpose analysis under Article 56. The strike’s object did not interfere with passengers’ cross-border provision or receipt of services.
5. Even if the effects of the strike were considered, any interference with individual passengers was indirect and uncertain because alternative routes were available. Allowing every potentially affected passenger to found a claim would produce open-ended liability and undermine the right to strike. The court accordingly concluded that neither Treaty claim raised a serious issue to be tried.

• Court of Appeal (Civil Division): dismissed the appeal and refused the interlocutory injunction: [2016] EWCA Civ 1309.
• Queen’s Bench Division, Commercial Court: Sir Michael Burton refused GTR’s application for an interlocutory injunction.