Amoena (UK) Limited v Commissioners for Her Majesty’s Revenue and Customs

For customs classification, a product’s objective characteristics and properties are decisive. Its intended use is relevant where that use is inherent in the product and objectively ascertainable.

An article is an accessory under chapter 90 note 2(b) of the Combined Nomenclature where it performs a particular service relative to the principal item’s main function. It need not enable a function beyond the principal item’s standard functions. The service must be directly connected with the mechanisms or processes by which that function is performed.

A specially designed mastectomy bra is therefore an accessory to an artificial breast form where holding the form in place enables it to perform its function.

The appellant imported the Carmen mastectomy bra, which was designed principally to hold an artificial breast form for women who had undergone breast surgery. Classification under chapter 62 of the Combined Nomenclature attracted customs duty at 6.5%. Classification under heading 9021, concerning artificial body parts and related appliances, attracted no duty.

The First-tier Tribunal classified the product as a brassière under chapter 62. The Upper Tribunal reversed that decision, holding that the bra was a part of or accessory to the breast form. The Court of Appeal, in [2015] EWCA Civ 25, restored the First-tier Tribunal’s classification.

The principal issue before the Supreme Court was whether the bra was an accessory suitable solely or principally for use with an artificial breast form under chapter 90 note 2(b). The court also considered whether it was itself an orthopaedic appliance or an appliance worn to compensate for a defect or disability.

1. The appeal was allowed unanimously. Lord Carnwath delivered the judgment, with which Lady Hale, Lord Sumption, Lord Reed and Lord Hodge agreed. The Upper Tribunal had made no error of law in concluding that the mastectomy bra was an accessory to an artificial breast form under chapter 90 note 2(b).

2. Customs classification generally depends upon a product’s objective characteristics and properties as defined by the relevant headings and notes. Explanatory notes are important interpretative aids but lack legally binding force. Intended use may be considered where it is inherent in the product and ascertainable from its objective characteristics. The Court of Justice supplies the governing criteria, while their application to particular facts is generally for the national court.

3. The reasoning in Turbon International GmbH v Oberfinanzdirektion Koblenz and Unomedical A/S v Skatteministeriet on the interpretation of “parts and accessories” remained authoritative. However, the court rejected the suggestion that an accessory must enable the principal item to perform a function beyond its standard functions. The words “perform a particular service relative to” the principal item’s function refer more narrowly to a service directly connected with the mechanisms or processes by which that function is performed.

4. The bra was not a “part” of the breast form. It was marketed separately, and the two products could not naturally be regarded as a single whole. The availability of other methods for holding the breast form in place did not determine whether this bra was suitable solely or principally for the relevant service.

5. On a natural reading, the bra was an “accessory”. By holding the breast form in position, it enabled the form to perform its function of simulating the appearance of the natural body. It therefore performed a particular service relative to the breast form’s main function. That conclusion was consistent with the governing Court of Justice principles.

6. The First-tier Tribunal had been entitled to find that the breast form, rather than the bra, compensated for the relevant defect or disability. The bra therefore did not itself qualify on that ground. It was unnecessary finally to decide whether “parts of the body” in the definition of orthopaedic appliances included artificial parts. The court nevertheless observed that neither a breast form nor a mastectomy bra was naturally described as an orthopaedic appliance.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court held that the mastectomy bra was an accessory to an artificial breast form under chapter 90 note 2(b).

2. Court of Appeal: In [2015] EWCA Civ 25, the court reversed the Upper Tribunal and restored the First-tier Tribunal’s classification under chapter 62.

3. Upper Tribunal: The tribunal reversed the First-tier Tribunal. It held that the bra was a part of or accessory to the breast form and also accepted an argument based on support for an artificial body part.

4. First-tier Tribunal: The tribunal classified the product as a brassière under chapter 62 and rejected the contention that the bra itself compensated for a defect or disability.