In Young v Anglo American South Africa Ltd (unreported, 31 July 2014), the Court of Appeal had to grapple with the issue of where a company was domiciled for the purposes of EU jurisdictional law.
Article 2 of the Brussels I Regulation (Council Regulation 44/2001 - the "Regulation") requires persons "domiciled" in an EU member state to be sued in the courts of that member state. By Article 60 of the Regulation, a company is "domiciled" at the place where it has its (a) statutory seat; (b) central administration, or (c) principal place of business.
The issue in this case was whether the Defendant, Anglo American South Africa Ltd ("Anglo American SA"), a company incorporated in South Africa, had its central administration in England and was thus domiciled in England. If so, the English court rather than the South African court, would as the Claimant was contending, have jurisdiction over the Claimant's claims for medical negligence.
Anglo American SA, belonged to the Anglo American Group of companies. The group's ultimate parent company was Anglo American plc, an English company with its head office in London. Anglo American SA itself had no employees and conducted no business of its own. It held shares in various predominantly South African companies. However, it held board meetings sufficient for its own limited business, appointed its own auditors, and made decisions about dividends. The parent company powerfully influenced, but did not determine, the company's decisions.
Andrew Smith J, in the High Court, held that the Claimant had not made out a good, arguable case that Anglo American SA had its central administration in England. There was no evidence that it carried out any function in England. The upshot of this was that Anglo American SA had to be sued in South Africa. The Claimant appealed.
The Court of Appeal Decision
The Court of Appeal dismissed the appeal. Giving the leading judgment, Aikens LJ said that the Regulation had deliberately been drafted so that one company might simultaneously have three different locations of domicile. This was designed to give a claimant a wider choice of where to sue a company. In order to avoid conflicts of jurisdiction, Article 60 had to be given an "autonomous" meaning, rather than being interpreted under the canons of construction of any EU country's system of law. The Court of Appeal had to consider the objectives of the Regulation as a whole, one of which was that its rules of jurisdiction must be "highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile". The phrase "central administration" should be given the accepted meaning laid down in other EU law, i.e., it was the place where the company organs took the decisions that were essential for the company's operations. It was the same as the place where the company, through its relevant organs, conducted its entrepreneurial management. It was, Aikens LJ continued, only the organs of the company itself which were relevant. It was immaterial that the company depended upon the decisions of a parent company. It did not necessarily follow that the place where those who had serious responsibility for the company work was the place where the "central administration" of the company would be found.
The trial judge had thus correctly concluded that Anglo American SA's central administration was in South Africa. He had been right to concentrate on the factual position relating to Anglo American SA itself, and to search for the place where that company, through its relevant organs, made the decisions that were essential for its own business, or where its own "entrepreneurial decisions" were taken. He had been correct not to ask the more impersonal question: where were the main entrepreneurial decisions taken which determined the activity of the company. The focus had to be on the decisions of the company itself. There was no evidence that it carried out any function in England. The position was not altered by the fact that its ultimate parent, based in London, plainly guided and even heavily influenced the decisions that it made.
The Court of Appeal rejected the argument that, if the English holding company could exert or usurp control over Anglo American SA, that would establish a good arguable case that the company's central administration was in England. Article 60 of the Regulation dealt with actualities, not possibilities.
This decision is a useful reminder of the different ways in which "domicile" can be understood under EU law, and also of the clear distinctions that the English Court draws in this context between the decisions of a company and those of its parent. The concept of "domicile" is not only crucial to the functioning of the Regulation in its present form; it also lies at the heart of the "recast" Regulation (Council Regulation 1215/2012) that will apply to new cases from 10 January 2015, and of the 2007 Lugano Convention that extends EU jurisdiction rules to three European Free Trade Association Member States (Iceland, Norway, and Switzerland).