Her Majesty's Revenue and Customs v Aimia Coalition Loyalty UK Limited (formerly known as Loyalty Management UK Limited) (No 2)

A national court is not necessarily obliged to make a further reference for a preliminary ruling merely because it considers that an earlier ruling proceeded on an incomplete account of the facts. A further reference may be appropriate where the court encounters difficulty in understanding or applying the ruling, identifies a fresh question of law, or presents new considerations capable of producing a different answer.

No further reference is required where established principles of EU law can be applied to a fuller account of the facts and no question of EU law remains to be elucidated. Judicial disagreement does not itself require a reference where the case raises no new point of EU law.

The Supreme Court had issued its previous judgment on the appeal in [2013] UKSC 15 and invited written submissions about the form of the order. HM Revenue and Customs then requested a further preliminary reference to the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union. Aimia Coalition Loyalty UK Ltd opposed the request and invited the court to dismiss the appeal.

HM Revenue and Customs argued that a further reference was obligatory because the first European ruling was incomplete or unsatisfactory. It also contended that the division of opinion within the Supreme Court demonstrated the existence of a question of EU law which was not acte clair. The issue was whether either argument required or justified another reference.

1. The request for a further preliminary reference was refused unanimously. Lord Reed delivered the judgment, with which Lord Hope, Lord Walker, Lord Wilson and Lord Carnwath agreed. The majority in the earlier judgment had applied established principles of EU law to a fuller account of the facts and considered that no question of EU law remained to be elucidated.

2. The authority of a preliminary ruling does not prevent a national court from making another reference. As explained in Wünsche Handelsgesellschaft GmbH & Co v Federal Republic of Germany, Case 69/85, [1986] ECR 947, a further reference may be justified where the national court encounters difficulty in understanding or applying the ruling, raises a fresh question of law, or supplies new considerations capable of producing a different answer. That authority did not establish the broader proposition advanced by HM Revenue and Customs that a further reference was obligatory whenever the first ruling appeared incomplete or unsatisfactory.

3. A national court's adoption of a fuller or different view of the facts may sometimes make further guidance necessary, but it does not invariably do so. The revised factual assessment may remove the difficulty which prompted the original reference. Here, the majority considered that there had, with hindsight, been no need for the original reference and that the European court had itself regarded the case as raising no new point of law.

4. The minority's disagreement with the majority's application of EU law did not require or justify another reference. The minority also acknowledged that the case raised no new point of EU law. Any concerns about fairness under domestic law presented no issue suitable for determination by the European court.

5. Accordingly, no further reference under article 267 of the Treaty on the Functioning of the European Union was necessary. The court also noted that the litigation had already continued since 2003.

1. United Kingdom Supreme Court: In [2013] UKSC 42, the court unanimously refused HM Revenue and Customs' request for a further preliminary reference to the Court of Justice of the European Union.

2. United Kingdom Supreme Court: The court had issued its previous judgment on the appeal in [2013] UKSC 15 and invited written submissions concerning the form of its order.

3. Court of Appeal: The appeal to the Supreme Court was from the decision in [2007] EWCA Civ 938. The disposition at that stage is not stated in this judgment.