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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> British Airways Plc & Anor v Sindicato Espanol De Pilotos De Lineas Aereas & Anor [2013] EWHC 1657 (Comm) (20 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2013/1657.html Cite as: [2013] EWHC 1657 (Comm), [2013] 2 CLC 65, [2013] ILPr 45 |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building Fetter Lane London EC4A 1NL |
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B e f o r e :
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(1)British Airways Plc (2) International Consolidated Airlines Group S.A. |
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- and - |
Claimants |
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(1) Sindicato Espanol de Pilotos de Lineas Aereas (21) The International Federation of Airline Pilots Association |
Defendants |
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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
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Crown Copyright ©
Mr Justice Field:
Introduction
" … endangers pilots' jobs, infringes the scope clause in the collective agreement established between the company and the trade union, and aims at watering down the pilot market by having reduced terms and conditions below those in any other comparable airline. … The company's strategic plan is clearly 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…
The cause of action relied on by the Claimants
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 restrictions 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 activities 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 establishment 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.
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 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 autonomy (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 collectively …
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 private undertaking against a trade union or an association of trade unions.
62. This interpretation is also supported by the case-law on the Treaty provisions on the free movement of goods, from which it is apparent that restrictions may be the result of actions 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 paragraph 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, pursuant 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.
"… 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 terms 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
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 administrative matters.
JURISDICTION
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:
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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 them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;
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The Claimants' case on jurisdiction
Do the Claimants' claims come within the Regulation at all?
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, although 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 applicable 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).
(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 national 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 cause of action which happens to be vested in it, as a public authority alone, it will still be enforcing 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 authority 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 which 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, in 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 powers, whether these are undertaken within a scheme of public regulation, or take the form [of] public powers delegated to a private provider."[4]
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 as action taken by a Member State, to which the fundamental 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 deemed to be public measures attributable to that Member State. (13)[9]
Note 3 Para 2.33, p.70. [Back]
Note 4 Para 2.33, p. 69 [Back]
Note 5 15th ed, para 11-034 [Back]
Note 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. [Back]
Note 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 British Society representing pharmacists may, with particular 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 judgment in Case C-292/92 Hünermund and Others [1991] ECR 1-6787, paragraph 12 et seq., regarding measures taken by the Landesapothenkammer Baden-Wüttemburg. [Back]
Note 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. [Back]