Amoena (UK) Ltd v HM Revenue and Customs

Customs classification turns on the goods’ objective characteristics and the wording of the Combined Nomenclature, read hierarchically. Explanatory notes assist interpretation but cannot alter the wording of the headings. A textile support is not an orthopaedic appliance merely because it has a medical use. The article itself must compensate for a defect or disability, or fall within the defined support functions. A mastectomy bra that holds an artificial breast form does not perform that compensatory function. Nor is it a Chapter 90 accessory unless it is essential to the operation of the whole or improves its performance or functionality. It was therefore classified as clothing under Regulation 2658/87.

Amoena imported the Carmen mastectomy bra, designed to hold an artificial breast form. HMRC issued a Binding Tariff Information decision classifying it as a clothing article under Chapter 62, attracting 6.5% duty. The First-tier Tribunal rejected classification as an orthopaedic appliance. The Upper Tribunal, in FTC/23/2012, held that the bra was either an accessory to the breast form or an orthopaedic appliance and selected the latter classification under subheading 9021 10 10.

HMRC appealed. The Court of Appeal had to decide whether the bra was a part or accessory to an artificial breast form and whether it was an orthopaedic appliance under the Combined Nomenclature.

1. Appeal allowed. The mastectomy bra was not classifiable in Chapter 90 and fell within Chapter 62 as an article of clothing.
2. Classification method. The Combined Nomenclature requires a structured and hierarchical approach. The court must determine intended use and material composition, make a provisional classification by the relevant headings, examine the headings and notes together, apply the General Interpretative Rules where necessary, and then classify the goods at subheading level. Classification depends principally on objective characteristics and properties. Intended use is relevant only where it is inherent in the product. HS and CN explanatory notes are useful aids but are not legally binding and cannot alter the wording of the Nomenclature.
3. Part or accessory. Applying Turbon International GMBH v Oberfinanzdirektion Koblenz (Cases C276/00 and C250/05) and Unomedical v Skatteministreet (C152/10), a part is essential to the operation of the whole. An accessory is an interchangeable item which adapts the principal article, increases its range of operations or performs a service relative to its main function. Those meanings apply in Chapter 90. The bra was not essential to the breast form and did not improve its performance or give it additional functionality. It was therefore neither a part nor an accessory.
4. Orthopaedic appliance. The term appliance is broad and is not confined by technical structure, but the article must still have the required medical function. The product itself must compensate for a defect or disability by taking over or substituting for the function of the defective part; mere alleviation is insufficient. The breast form, not the bra, performed that function. Note 6 to Chapter 90 exhaustively defined the relevant functions, and references to the body meant the natural body rather than an artificial body part.
5. Ordinary articles and other definitions. Lohmann GmbH & Co KG and Others v Oberfinanzdirektion Koblenz (Case C-260/00 to 263/00) did not create a separate test dispensing with the other requirements for an orthopaedic appliance. The bra’s objective appearance was too close to an ordinary bra. The broader definition of accessory in the Medical Devices Directive and its VAT treatment did not govern customs classification. McCombe LJ and King LJ agreed that the CJEU authorities constrained the natural-language analysis and concurred in allowing the appeal.

1. Court of Appeal (Civil Division): HMRC’s appeal allowed. The Upper Tribunal’s classification of the mastectomy bra in Chapter 90 was set aside; the bra fell within Chapter 62.
2. Upper Tribunal (Tax and Chancery Chamber), FTC/23/2012: held that the bra was an accessory to the breast form and, alternatively, an orthopaedic appliance; selected subheading 9021 10 10.
3. First-tier Tribunal: rejected classification as an orthopaedic appliance and treated the bra as a clothing article carrying duty.