The Commercial Court in the British High Court of Justice dismissed a lawsuit filed by the International Airlines Group (IAG) and British Airways (BA) against IFALPA and the Spanish pilots union – SEPLA. The legal claim, lodged in London in November 2012, over a series of strikes in Spain by Spanish pilots created a lot of concerns. Adopting a similar line of arguments as the 2002 European Court of Justice case Viking1, IAG aimed to limit the right to strike. The dismissal of the claim is a first step in re-achieving a balance between fundamental rights and economic freedoms in the EU.
The conflict between Iberia pilots and their company concerning the transfer of activity to a new low cost subsidiary in breach of the collective labour agreement resulted in a series of legal strikes authorised by the Spanish government between December 2011 and April 2012. The mandatory arbitration imposed by the government formally put an end to the conflict. IAG, the parent company of Iberia, was not satisfied with this arbitration and launched a lawsuit against SEPLA and the International Federation of Airline Pilots Associations (IFALPA), claiming that the strikes in Spain constituted an unlawful breach of IAG’s right to freedom of establishment under the EU treaties.
The fact that IAG was suing a Spanish union in the UK for industrial actions occurring in Spain between a Spanish union and a Spanish employer triggered all alarm bells in the trade union world. The case was built up following the same strategy used in the famous Viking case, using the fact that IFALPA had passed on a letter from SEPLA asking for support in their industrial actions. ECA and trade union associations were concerned that this case could result in a new reduction of union rights.
The judge however considered that the claims, based exclusively on the breach of the right to freedom of establishment, were not “civil and commercial matters”. According to Judge Field, the resolution of conflict of (fundamental) rights is not a matter of public law and falls outside the scope of application of European law to define the competent judge in commercial matters. While his decision ended the lawsuit at an early stage, the judgement does not solve the issue of hierarchy between fundamental rights and economic freedoms. It does however help to put the debate in the right perspective. In the future, a more impartial examination of the different rights at stake and a better balance between them could be expected.
 C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union  ECR I-10779