In Capernwray Missionary Fellowship of Torchbearers v HMRC [2015] UKUT 368 (27 June 2015), the UT, refusing the joint application of the parties, declined to make a reference to the CJEU.
This was a joint application by Capernwray and HMRC, for an order that a reference be made to the CJEU for a preliminary ruling. The FTT had dismissed Capernwray’s appeal against HMRC’s ruling that supplies in the course of construction of a conference hall used by Capernwray for its activities were not zero-rated.
The UT first noted that it was for the referring tribunal to determine whether it required the guidance of the CJEU. The fact that the parties were agreed that a reference should be made, whilst a factor that must be carefully considered, was not determinative of the need for a reference. Under TFEU Art 267, a question should be referred to the CJEU only if a decision was necessary in order that the referring tribunal could give judgment. The UT therefore considered that for a reference to be made, it needed to be satisfied that a tribunal would not be able to resolve the relevant issues with complete confidence.
Having reviewed each of the relevant issues, as well as the body of European jurisprudence relating to them, it concluded that that ‘it was more likely than not’ that the tribunal hearing the substantive appeal would be able with complete confidence to decide the answers.
Why it matters: Even though both parties agreed that a reference to the CJEU was necessary, the UT turned down their application on the basis that there was a sufficient body of CJEU case law for a tribunal to decide the issues with confidence.
In Capernwray Missionary Fellowship of Torchbearers v HMRC [2015] UKUT 368 (27 June 2015), the UT, refusing the joint application of the parties, declined to make a reference to the CJEU.
This was a joint application by Capernwray and HMRC, for an order that a reference be made to the CJEU for a preliminary ruling. The FTT had dismissed Capernwray’s appeal against HMRC’s ruling that supplies in the course of construction of a conference hall used by Capernwray for its activities were not zero-rated.
The UT first noted that it was for the referring tribunal to determine whether it required the guidance of the CJEU. The fact that the parties were agreed that a reference should be made, whilst a factor that must be carefully considered, was not determinative of the need for a reference. Under TFEU Art 267, a question should be referred to the CJEU only if a decision was necessary in order that the referring tribunal could give judgment. The UT therefore considered that for a reference to be made, it needed to be satisfied that a tribunal would not be able to resolve the relevant issues with complete confidence.
Having reviewed each of the relevant issues, as well as the body of European jurisprudence relating to them, it concluded that that ‘it was more likely than not’ that the tribunal hearing the substantive appeal would be able with complete confidence to decide the answers.
Why it matters: Even though both parties agreed that a reference to the CJEU was necessary, the UT turned down their application on the basis that there was a sufficient body of CJEU case law for a tribunal to decide the issues with confidence.
