Amoena Ltd v Commissioners for Her Majesty's Revenue and Customs.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Lycourgos
• ECLI: ECLI:EU:C:2019:1142
• Docket Number: C-677/18
• Date: 19 December 2019
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Tenth Chamber)

19 December 2019 ( *1 )

(Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Headings 6212 and 9021 — Mastectomy bras — Implementing Regulation (EU) 2017/1167 — Validity — Notion of ‘accessories’ — Sincere cooperation)

In Case C‑677/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the First-tier Tribunal (Tax Chamber), United Kingdom, made by decision of 1 November 2018, received at the Court on 5 November 2018, in the proceedings

Amoena Ltd

v

Commissioners for Her Majesty’s Revenue and Customs,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis, President of the Chamber, E. Juhász and C. Lycourgos (Rapporteur), Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Amoena Ltd, by A. Mehlin, Solicitor, E. Brown, Barrister, G. Facenna QC, and A. Davies, Consultant,

– the United Kingdom Government, by S. Brandon, acting as Agent, and by S. Singh, Barrister,

– the European Commission, by A. Caeiros and J. Hradil, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the validity of Commission Implementing Regulation (EU) 2017/1167 of 26 June 2017 concerning the classification of certain goods in the Combined Nomenclature (OJ 2017 L 170, p. 50).

2 The request has been made in proceedings between Amoena Ltd and the Commissioners for Her Majesty’s Revenue and Customs (‘the tax authority’) concerning the tariff classification of mastectomy bras.

Legal context

The CN

3 The customs classification of goods imported into the European Union is governed by the combined nomenclature (‘the CN’) set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1). The version of the CN applicable to the case in the main proceedings is that which results from that regulation, as amended by Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016 (OJ 2016 L 294, p. 1).

4 Part One of the CN contains preliminary provisions. In Section I of Part One, which contains general rules, subsection A, entitled ‘General rules for the interpretation of the Combined Nomenclature’, provides: ‘1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. … 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

5 Part Two of the CN, entitled ‘Schedule of customs duties’, is divided into 21 sections. Section XI, entitled ‘Textiles and textile articles’, includes in particular Chapter 62, entitled ‘Articles of apparel and clothing accessories, not knitted or crocheted’.

6

Heading 6212 of the CN, to which a conventional rate of duty of 6.5% applies, is structured as follows: 6212 Brassières, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted: 6212 10 – Brassières : 6212 10 10 – – In a set made up for retail sale containing a brassière and a pair of briefs 6212 10 90 – – Other … …

7 Section XVIII of Part Two of the CN is entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments; parts and accessories thereof’. It includes in particular Chapter 90, entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof’.

8

Heading 9021 of the CN, the goods covered by which are exempt from conventional duty, is structured as follows: 9021 Orthopaedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability: 9021 10 – Orthopaedic or fracture appliances 9021 10 10 – – Orthopaedic appliances … … – Artificial teeth and dental: … … – Other artificial parts of the body: 9021 31 00 – – Artificial joints 9021 39 – – Other : 9021 39 10 – – – Ocular prostheses 9021 39 90 – – – Other … …

9 Note 2(b) to Chapter 90 of the CN provides: ‘2. Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules: … (b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind; …’

Regulation (EU) No 952/2013

10 Article 57 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), entitled ‘Tariff classification of goods’, provides in paragraphs 1 and 4 thereof: ‘1. For the application of the Common Customs Tariff, tariff classification of goods shall consist in the determination of one of the subheadings or further subdivisions of the [CN] under which those goods are to be classified. … 4. The [European] Commission may adopt measures to determine the tariff classification of goods in accordance with paragraphs 1 and 2.’

11 Article 58 of that regulation, entitled ‘Conferral of implementing powers’, states in paragraph 2 thereof: ‘The Commission shall adopt, by means of implementing acts, the measures referred to in Article 57(4). …’

12 Article 285(1) of that regulation states: ‘The Commission shall be assisted by the Customs Code Committee. …’

Implementing Regulation 2017/1167

13 In order to ensure the uniform application of the CN, the Commission adopted Implementing Regulation 2017/1167, which, in accordance with Article 3, entered into force on 21 July 2017.

14 Article 1 of that regulation provides: ‘The goods described in column (1) of the table set out in the Annex shall be classified within the [CN] under the CN code indicated in column (2) of that table.’

15

The Annex to that regulation reads as follows: ‘Annex Description of the goods Classification (CN code) Reasons (1) (2) (3) A knitted brassière (61% nylon, 20% elastane, 12% cotton, 7% viscose), with adjustable broad padded shoulder straps, centrally positioned over the breasts, with shaped cups and elastication at the back part of the base. There is an embroidered design on the shoulder straps and cups and a decorative bow at the centre front. The article is closed by means of an adjustable “hook and eye fastening”. The brassière has a lining in the cups, with side openings for the insertion of padding for the enhancement of breasts (aesthetic purposes) or for the insertion of breast forms following a mastectomy. See images (*1). 6212 10 90 Classification is determined by general rules 1 and 6 for the interpretation of the [CN] and by the wording of CN codes 6212, 6212 10 and 6212 10 90. The article has the objective characteristics (the form and the construction) of a brassière of heading 6212, which includes brassières of all kinds (see also the Harmonised System Explanatory Notes to heading 6212, second paragraph (1)). Although the article can also be worn by women following a mastectomy, classification under heading 9021 as an orthopaedic appliance or as a part or accessory of an artificial part of the body is excluded because, at the time of importation, the objective characteristics of the product are those of a brassière of heading 6212 and do not give any indication of the final use (for aesthetic or medical purposes). The side openings do not make the brassière a product of heading 9021 as they can serve both for the insertion of breast forms following a mastectomy and for the insertion of padding for the enhancement of breasts (aesthetic purposes). Similarly, the broad shoulder straps, centrally positioned over the breasts are a common feature for bigger cup brassières of heading 6212. Therefore, the article is to be classified under CN code 6212 10 90 as a brassière. (*1) The images are purely for information.

Background to the dispute

16 Amoena, a company established in the United...