Information;Order — ECLI:EU:C:2021:698
Date: 2021-09-03
Language of the case: English
Court formation: Tenth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

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     C-706/20-1 
FIRST-TIER TRIBUNAL 
TAX CHAMBER 
 Appeal number:  TC/2017/6753 
 
BETWEEN 
 
 AMOENA (UK) LIMITED Appellant 
 
-and- 
 
 THE COMMISSIONERS FOR  
HER MAJESTY’S REVENUE AND CUSTOMS Respondents 
 
_____________________ 
ORDER 
_____________________ 
 
UPON THE APPLICATION of the Appellant for a further reference to the Court of Justice 
of the European Union (‘CJEU’) following the CJEU’s preliminary ruling in this case on 19 
December 2019, and for a stay of proceedings pending the outcome of such a further 
reference 
 
AND UPON HEARING Leading Counsel for the Appellant and the Respondents 
 
AND UPON FINDING that in order to enable the Tribunal to give judgment in this case it is 
necessary to resolve a question concerning the validity of European Union law and that it is 
appropriate to request the CJEU to give a further preliminary ruling  
 
IT IS ORDERED THAT 
 
1. The questions set out in the attached Schedule be referred to the CJEU for a preliminary 
ruling in accordance with Article 267 of the Treaty on the Functioning of the European 
Union 
 
2. The officer of the Tribunal shall forthwith transmit to the Registrar of the CJEU these 
Directions and the accompanying Schedule, which contains relevant findings of fact 
necessary to answer the questions referred. 
 
3. All further proceedings in this matter be stayed until the CJEU has given its ruling on 
the questions or until further order. 
 
4. The costs of making this Order be costs in the case. 
 
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Judge Peter Kempster 
Judge of the Tax Chamber of the First-tier Tribunal 
29 December 2020 
  
 
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_____________________ 
SCHEDULE 
_____________________ 
 
1. On 19 December 2019 the Court of Justice issued its preliminary ruling under 
Article 267 TFEU on questions referred by this Tribunal (“the 2018 Referral”) on 1 
November 2018: see Case C-677/18, Amoena Ltd v Commissioners for Her Majesty’s 
Revenue and Customs (EU:C:2019:1142) (“the Amoena Decision”). 
2. As explained in paragraphs 5 & 6 of the 2018 Referral, the dispute before the national 
court concerns the correct tariff classification of mastectomy bras:  
“5. Commission Implementing Regulation (EU) 2017/1167 issued by the 
European Commission on 26 June 2017 (the “CIR”) dictates that the MBs 
should be classified under Chapter 62 of the Combined Nomenclature of 
the European Union (“CN”) with tariff heading 6212 and CN code 6212 
10 90, which means that import duty is payable upon them. HMRC 
contend that the CIR is valid, for the reasons given below, and accordingly 
rely on the CIR as the basis for the correct classification of the MBs. 
 
6. Amoena contends that the CIR is not valid for the reasons set out below, 
namely manifest error and/ or a breach of the duty of sincere cooperation 
by the European Commission. Amoena contends that MBs should properly 
be classified under Chapter 90 of the CN with tariff heading 9021 and CN 
code 90211010. If so, import duty would not be payable.” 
The Amoena Decision 
3. The first two questions referred to the Court (there was a third question which is not 
relevant to this further referral) were:  
“44.1. Was the CCC and/or the European Commission manifestly wrong 
to classify the MBs: 
 44.1.1. under Chapter 62 of the Combined Nomenclature of the 
European Union with tariff heading 6212, which specifically includes 
"Brassieres", and CN code 6212 10 90;  
 instead of 
 44.1.2. Chapter 90 with tariff heading 9021 and CN Code 9021 10 10 
as accessories to artificial parts of the body within the meaning of 
Note 2(b) to Chapter 90 of the CN? 
 
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44.2. Does the CIR illegitimately narrow the scope of the classification for 
accessories for artificial body parts under tariff heading 9021 and Note 
2(b) to Chapter 90 of the CN, thereby making it ultra vires the European 
Commission's powers?” 
4. The Court’s ruling was:  
“54.…by classifying the goods described in column 1 of the table in the 
annex to Implementing Regulation 2017/1167 in Heading 6212 of the CN 
and not in Heading 9021 thereof, the Commission did not alter the subject 
matter or the scope of those two tariff headings.” 
5. In relation to Heading 6212, the Court explained its reasoning and conclusion in 
paragraphs 42-47 of the Amoena Decision. 
6. In relation to Heading 9021, the Court explained its reasoning and conclusion in 
paragraphs 48-53 of the Amoena Decision. 
Grounds for a further referral 
7. In Case 69/85, Wünsche Handelsgesellschaft GMbH & Co v Federal Republic of 
Germany (EU:C:1986:104), the Court described the status of its rulings on referrals by 
national courts, and the limited circumstances in which a national court may make a 
further reference to the Court: 
“13. It follows that a judgment in which the Court gives a preliminary 
ruling on the interpretation or validity of an act of a Community institution 
conclusively determines a question or questions of Community law and is 
binding on the national court for the purposes of the decision to be given 
by it in the main proceedings. 
… 
15. None the less, the authority of a preliminary ruling does not preclude 
the national court to which it is addressed from properly taking the view 
that it is necessary to make a further reference to the Court of Justice 
before giving judgment in the main proceedings. According to well-
established case-law, such a procedure may be justified when the national 
court encounters difficulties in understanding or applying the judgment, 
when it refers a fresh question of law to the Court, or again when it 
submits new considerations which might lead the Court to give a different 
answer to a question submitted earlier. However, it is not permissible to 
use the right to refer further questions to the Court as a means of 
contesting the validity of the judgment delivered previously, as this would 
call in question the allocation of jurisdiction as between national courts 
and the Court of Justice under Article 177 of the Treaty.” 
 
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8. This further referral is made on the grounds that the national court encounters 
difficulties in understanding and applying paragraph 53 of the Amoena Decision. 
9. In the national proceedings the taxpayer contends that its brassieres should be classified 
as breast form “accessories” and so be classified under Heading 9021 of the combined 
nomenclature.  In paragraph 51 of the Amoena Decision the Court stated:  
“51. It follows from the Court’s case-law that the notion of ‘accessories’, 
for the purposes of Chapter 90 of the CN, implies interchangeable parts or 
devices designed to adapt a machine for a particular operation, or to 
increase its range of operations, or to perform a particular service relative 
to the main function of the machine (see, to that effect, judgments of 16 
June 2011, Unomedical, C‑ 152/10, EU:C:2011:402, paragraph 29, and of 
4 March 2015, Oliver Medical, C‑ 547/13, EU:C:2015:139, paragraph 
69).” 
10. In paras 52-53 of the Amoena Decision the Court stated:  
“52. In the present case, it must be noted that the goods referred to in the 
annex to Implementing Regulation 2017/1167 cannot be regarded as breast 
form ‘accessories’, for the purposes of Chapter 90 of the CN. 
53. Such brassieres do not allow breast forms to be adapted for a particular 
function, do not increase their range of operations, and do not allow them 
to perform a particular service relative to their main function, in so far as 
they add nothing to that function and do not improve their intrinsic 
function. Therefore, although they can, admittedly, in accordance with the 
information in the order for reference, serve to hold the breast forms in 
place thanks to their side openings, they do not however allow those forms 
to perform a function other than that for which they are designed, 
consisting in replacing all or a part of one or both breasts which have 
undergone surgical removal.” 
11. Of the three limbs of the definition of accessory identified by the Court in paragraph 51 
of the Amoena Decision, only the third limb (‘designed…to perform a particular 
service relative to the main function of the machine’) is relevant to the national 
proceedings, and can be stated by reference to the particular facts of the national 
 
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proceedings and the conclusion of the UK Supreme Court as being: the brassieres 
perform a particular service relative to the main function of the breast forms.
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12. In that circumstance, the national court encounters difficulties in understanding and 
applying the Court’s statements in paragraph 53 of the Amoena Decision.   
13. First, the national court is unsure whether the terms “them”, “they” and “their” in 
paragraph 53 should each be taken as referring to the brassieres or the breast forms.   
14. Secondly, the national court is unsure whether the second sentence of paragraph 53 
intends to vary the test identified in paragraph 51 of the Amoena Decision (by requiring 
that the brassieres (i.e. the potential accessory) must allow the breast forms to perform a 
function other than that for which “they” (presumably, the breast forms) are designed), 
or instead only to apply the test identified in paragraph 51 to the brassieres. 
The questions referred 
15. The national court believes the Court’s ruling on the following question(s) should 
resolve the national court’s difficulties described above. 
In circumstances where: 
i. Paragraph 51 of the Court’s judgment of 19 December 2019 notes 
that the notion of ‘accessories’, for the purposes of Chapter 90 of the 
CN, implies ‘interchangeable parts or devices designed to adapt a 
machine for a particular operation, or to increase its range of 
operations, or to perform a particular service relative to the main 
function of the machine’; 
ii. Only the third limb of that definition of accessory is relevant to the 
national proceedings, the UK Supreme Court having found that the 
brassieres perform a particular service relative to the main function of 
the breast forms, namely holding the breast form in place; 
iii. Paragraph 53 of the Court’s judgment of 19 December 2019 
concludes that the mastectomy brassieres at issue in these proceedings 
do not fall within the meaning of the word “accessories” in Note 2(b) 
to Chapter 90 of the CN because “[s]uch brassieres do not allow 
                                                 
1
 Judgment of the Supreme Court of the United Kingdom, Amoena (UK) Ltd v HMRC [2016] UKSC 41,13 July 
2016, paragraph 44: ‘By holding the breast form in place, the bra enables it to perform its function. The bra thus 
“performs a particular service relative to the main function” of the breast form’. 
 
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breast forms to be adapted for a particular function, do not increase 
their range of operations, and do not allow them to perform a 
particular service relative to their main function, in so far as they add 
nothing to that function and do not improve their intrinsic function. 
Therefore, although they can, admittedly, in accordance with the 
information in the order for reference, serve to hold the breast forms 
in place thanks to their side openings, they do not however allow 
those forms to perform a function other than that for which they are 
designed, consisting in replacing all or a part of one or both breasts 
which have undergone surgical removal”; 
1. Are the terms “them”, “they” and “their” in paragraph 53 of the 
judgment to be taken as referring to the brassieres or to the breast 
forms? 
2. Does the second sentence of paragraph 53 suggest a test different 
to that identified in paragraph 51 of the Amoena Decision, and 
derived from the HS explanatory note to heading 8473, by 
requiring that the brassieres (i.e. the potential accessory) must 
allow the breast forms to perform a function other than that for 
which “they” (presumably, the breast forms) are designed, or 
instead only intend to apply the test identified in paragraph 51, 
which requires the brassieres to perform a service relative to the 
main function of the breast form?