18.4.2009

Official Journal of the European Union

C 90/13

(Case C-53/09)

2009/C 90/20

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: Loyalty Management UK Limited

Questions referred

‘In circumstances where a taxable person (the “Promoter”) is engaged in the business of running a multi-participant customer loyalty rewards programme (the “Scheme”), pursuant to which the Promoter enters into various agreements as follows:

(i) Agreements with various companies referred to as “Sponsors” under which the Sponsors issue “Points” to customers of the Sponsors (“Collectors”) who purchase goods or services from the Sponsors and the Sponsors make payments to the Promoter;

(ii) Agreements with the Collectors which include provisions such that, when they purchase goods and/or services from the Sponsors, they will receive Points which they can redeem for goods and/or services; and

(iii) Agreements with various companies (known as “Redeemers”) under which the Redeemers agree, among other things, to provide goods and/or services to Collectors at a price which is less than would otherwise be payable or for no cash payment when the Collector redeems the Points and in return the Promoter pays a “Service Charge” which is calculated according to the number of Points redeemed with that Redeemer during the relevant period.

1.How are Articles 14, 24 and 73 of Council Directive 2006/112/EC of 28 November 2006 (formerly Articles 5, 6 and 11(A)(1)(a) of Council Directive 77/388/EEC of 17 May 1977) to be interpreted where payments are made by the Promoter to the Redeemers?

2.In particular, are those provisions to be interpreted such that the payments of the kind made by the Promoter to Redeemers are to be characterised as:

(a) consideration solely for the supply of services by the Redeemers to the Promoter; or

(b) consideration solely for the supply of goods and/or services by the Redeemers to the Collectors; or

(c) consideration in part for the supply of services by the Redeemers to the Promoter and in part for the supply of goods and/or services by the Redeemers to the Collectors?

3.If the answer to question 2 is (c), so that the Service Charge is consideration for two supplies by the Redeemers, one to the Promoter and the other to the Collectors, what are the criteria laid down by Community law to determine how a charge such as the Service Charge is to be apportioned between those two supplies?

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax OJ L 347, p. 1

Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment OJ L 145, p. 1’