Order — ECLI:EU:C:2021:587
Date: 2021-07-12
Language of the case: English

summary of Amoena's arguments in relation to each of the three reasons is set out
below.
MANIFEST ERROR
25. The test to be applied in determining the validity of a regulation such as the CIR has
been expressed by the CJEU as whether the regulation embodies a 'manifest error' in
the interpretation of the CN (Case C-463/98 Cabletron Systems Ltd [2001] ECR 1-
3495) or whether it is reasonable for the European Commission to consider particular
goods fall within certain tariff headings: see Case C-401/93 Goldstar Europe [1994]
ECRI-5587 at [28].
26. The Supreme Court, applying the case law of the CJEU, adopted the following analysis
of why the MBs should properly be classified within Chapter 90:
26.1. As found by the FIT in the original proceedings, the MBs are designed to hold
silicone breast forms used by women after mastectomies. It is common ground
that those breast forms are' artificial parts of the body' within Chapter 90.
26.2: The 'decisive criterion for the classification of goods for customs tariff
purposes is in general to be found in their objective characteristics and
properties as defined in the wording of the relevant heading of the CNand of
the notes to the sections or chapters:' see Uroplasty [2006] ECR 1-6721.
26.3. An 'accessory' is 'an interchangeable part 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
Unomedical [2011] ECR 1-5433.
26.4. Thus, the Supreme Court considered that on a natural reading of Explanatory
Note 2(b) to Chapter 90 (as set out above), the MB is an accessory to an artificial
part of the body because it was designed to hold and support artificial breast
forms. Lord Carnwarth JSC in Amoena (Sup.Ct) stated at [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 mainfunction of the breastform.'
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27. Amoena argues that this analysis is correct and that the European Commission (as well
as the CCCwhich assists the European Commission in classifying goods under the CN)
did not properly engage with the analysis of the Supreme Court and/or misconstrued
the relevant provisions of the CN and/or the CJEU's relevant case law.
28. Amoena contends that the European Commission was manifestly wrong to decide that
29. Amoena does not contend that every mastectomy bra should necessarily be classified
under Chapter 90. Amoena's position is that the specific purpose and characteristics
of itsMBs howevermean that they should not be categorised .under the Chapter 62
hea.dingforbrassieres; instead; the objective characteristics of the MBsdemonstrates
its design for use as an accessory for a breast prosthesis. They are therefore propeny--------
classified und~! Chaptereowhen the exclusion shown at Note ifb) does not apply and
on the oaSIS oftne prlnclpaI use to-whiClithey are put:
the objective characteristics (as discerned at the time of importation) of the MBs lead
to their classification as brassieres, This is contrary to the findings of fact by the
domestic courts in respect of Amoena's MBs.
3Q, Amoena puts forward a number of further problems with the European Commission's
reasoning:
30.1. It is evident from the reasoning in theCIR that the European Commission did
not consider the effect of Chapter 90 at all (including Explanatory Note 2(b».
·----It-untiertook-a--supemeial-C*ereise,sollsidering,-msl"sly-wheth.er-.the-MBs-_falL-~
within Chapter 62. This is evident from the contemporaneous account of the
CCC's meeting from 17-19OCtober 2016 which stales that 'those who expressed
a view [about the MBs ·classification} ioere 0/ the opinion that mastectomy
bra's [sic} met the terms o/heading 6212 as "Brassieresl, so there was no need
to consider any other heading: Thus, the analysis stopped at Chapter 62 and
failed to address- Chapter.en.and.Note 2(b)atalL, 'Ihia is.anenorln the
European's Commission's reasoning and analytical approach. Alternatively,
the European Commission provided no proper evidential reasoning in support
of the classification.
30.2. Contrary to the guidance of the CJEU in Joined Cases C-260/00 to C-263/00
Lohmann GmbH & CoKG et al v Oberfinanzdirektion Koblenz [2002] ECR 1-
10045 at [39]-[40], the European Commission failed to consider the
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differences between Amoena's MBs and ordinary brassieres (and MBs
manufactured by other manufacturers) and instead focussed on the similarities
between those products.
30.3. Contrary to Explanatory Note 2(b) to Chapter 90, the European Commission
did not have regard to the sole or principal purpose of Amoena's MBs. This is
evident from the CIR itself which states that the MBs could 'serve bothfor the
insertion of breast forms following a mastectomy and for the insertion of
padding for the enhancement of breasts;
30.4. The European Commission failed to consider the applicability of Chapter 90 or
failed to consider the purpose of the MBs\Vhen considering their objective
characteristics. The intended use of a product may constitute an objective
criterion for classification as long as the inherent character is capable of being
assessed on the basis of the product's objective characteristics and properties:
see Case C-400/05 B.A.S. Trucks BVvStaatssecretaris van Financien [2007]
ECRI-311 at [29]. The side openings and the broad straps make the MBs'
purpose clear and accordingly, the European Commission was wrong to
conclude that their purpose was not ascertainable on the basis of the MBs'
characteristics.
30.5. ·Neither the members of the European Commission nor the CCCconsidered the
Supreme Court decision to classify in Chapter 90 in any detail, or if they did,
failed to disclose the reasoning behind their contrary decision to classify the
MB in Chapter 62 bearing in mind the provisions of Chapter 90 Note 2(b).
30.6. Further, the consequence of the European Commission's approach to the
construction of Chapter 61 (and ignoring Chapter 90 and Note 2(b)) is that the
principal use of every MB is the enhancement of breast size. Such a conclusion
lacks any evidential basis and is contrary to the findings of fact in this case.
31. Amoena further submits that in cases where the CCCis deciding whether goods fit into
a particular chapter of the CN (as opposed to deciding between eight-digit sub-
headings), the CCC's discretion is limited because this is a matter of international law
as opposed to EU law: see the opinion ofAdvocate General Jacobs in Cabletron at [84].
Thus, close scrutiny of the CIR is justified.
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TaE CUlls UL'fRA, VI~S'1JIECPlVll\:1lSSION'S.POWElU3.
32. Amoena also argues that the CIR is ultra vires the powers of the European Commission
because its effect is to narrow illegitimately the scope of the classification for
accessories for artificial body parts under sub-headingcoat and Note zfb) of Chapter
90. The European Commission does not have the power to engage in de facto variation
of classification headings: see Case C-267/94 France v Commission [1995] 1-4845.
BREACH OF PRINCIPLE OFSINCERE CO-OPERATION
33. Amoena's third argument as to the invalidity of the CIR is based on a breach of the
principal of sincere co-operation found in Article 4(3) of the TEU. It is Amoena's case
..iliciftheEuropean: Commission fcilIedcfociccorafulrcinapropeI'respeCttothe Supreme
Court'sjudgmentiIl Amoena {Sup.Ct.} in the following respeets.-
33.1. The evidence shows that the Supreme Court decision was.putbefore the
European Commission along with, at the very least, a summary of the Supreme
C01:lrt'SI'eaS9ning{SeeeIIlai1..of~8De~ember2016) ...t:..·.·····
33.2. Notwithstanding that, neither the members of the CCC nor the European
Commission, considered the. reasoning of the Supreme Court in. any detail.
Instead the. EuropeanCommission.based its decision on the fact.because the
MBsfit within one chapter (Chapter 62}there is no reasonto consider whether
they fit more appropriately in another chapter (Chapter 90).
33.3. Thus, both the European Commission and the CCCfailed to pay due regard to
the well-reasoned unanimous decision of the United Kingdom Supreme Court,
which in turn, was also conscious of its obligations to apply the case law set out
bytheCJEU.
34; HMRC's arguments in response to Amoena's claim .that theCIR is invalid can be
summarised as follows.
RESPONSE TO CLAIM OF MANIFEST ERROR
35. HMRC contend that there was no manifest error in the classification in the CIR. The
issue of the correct classification of the goods was fully discussed by the CCC prior to
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the CIR being implemented, with the UK advocating for classification under heading
9021 in reliance on the Supreme Court's decision. The Member States and the
European Commission were fully aware of the arguments in favour of classification
under heading 9021. However, the UK lost the argument. Every single Member State
except the UK voted in favour of classification as a'brassiere under heading 6212.The
CIR reflected the virtually unanimous view on classification amongst the Member
States. That classification was a reasonable one forthe reasons given in the Annex to
the CIR, which rely in particular on the objective characteristics of the MB. Heading
6212 applies to brassieres "of all kinds" (see the Harmonised System Explanatory
Notes to the heading) and based on the MB's objective characteristics it was reasonable
for the CIR to treat the MB as a brassiere of some kind.
36. Indeed, the classification intheCIR was the same classification arrived at by the only
fact-finding Tribunal in the UK to have examined the Amoena's MB, namely the FIJ',
which observed after examining theMB that "there is not one of the [claimed key]
features [of the MB] which may not befound in an ordinary brassiere" [19].
37. The minutes of the CCC's meetings are summaries of what was discussed and would
not be expected to record full details of the discussions or recite legal authorities. What
is clear from the minutes is that the customs experts from the Member States were
appraised of the Supreme Court's decision and so would have been aware for example
of any relevant differences between the MB and an ordinary brassiere highlighted in
the Supreme Court's decision. Those differences were not enough to persuade them
that the MB should·not beclassified as a brassierezz experts in tariff classification all
supported a classification in heading 6212.There is nothing legally offensive in the CCC
declining to follow the classification adopted by the Supreme Court, not only because
the CCC is not bound by the decision of any national court but also because of the
existence of the broad discretion vested in the CCC. Amoena's arguments essentially
come down to a disagreement with the judgment of the CCC as reflected in the CIR,
but mere disagreement is insufficient to establish invalidity.
RESPONSE TO ClAIM THAT CIR IS ULTRA VIRES
38. Amoena's argument appears to be that if the CIR is allowed to stand, it will amount to
the de facto variation of classification headings. HMRC's position is that there is
nothing in this point and it adds nothing to Amoena's first argument. IfAmoena fails
in its first argument, it means the classification in the CIR is reasonable and so no
question of illegitimately narrowing the scope of any other heading arises.
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• I
RESPONSE TO. ClAIM ..OF BREACH OFPRlNCIPLE OF. SINCERE CO-
OPERATION
39. HMRC contend that this argument has no merit. The European Commission should
respect the viewsof national courts but it has no obligation whatsoever toagreewith
all decisions of national courts. Rather, its role is to promote the uniform application
of the Customs Code and CN, which means that it has to ask the CCC to confirm
whether it supports the ruling of a national court where that ruling leads to divergent
practice amongst Member States, as the Supreme Court's ruling did in the present case;
40. The CCC gave due respect to the Supreme Court's decision. However, it was entitled
not to follow it given that following discussions its members were virtually unanimous
in their view that heading 6212was the appropriate classification.
------x4r.--The-Referring Court does not havejurisdictiorrtrrdeclare that acts of EU-instituHti,...,ons"""'---
are invalid: Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost [1987] ECR 4199 at
............. , .
[20]~
42. The Referring Court considers Amoena's arguments (as set out herein) to be arguable.
43. Accordingly, the Referring Court considers thlit it must make thls reference in
accordance with the decision of the G.JEUJnGase C'"344/04R( on the application of
International Air Transport Association)u Department of Transport [2006] ECR I-
__ . 40=.3U'.'-,---,-.,----c-..,.~-~~~------c------,----c__...,..---
44. The preUminaryruling of the CJEU is accordingly requested as to whether theCIR is
valid. In particular:
··44.1.-Was ffieCCCand7oFtlieEuropeanCommissioii·maiiirestlywrong to classifY .
theMBs:
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 621210 90;
instead of
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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
zfb) to Chapter 90 of the CN?
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?
44.3. Does the CIR constitute a breach of the principal of sincere co-operation set out
in Article 4(3) of the Treaty on European Union in circumstances where:
44.3.1. the European Commission must respect the decisions of national
courts, but must also promote the uniform (and correct) application of
the Customs Code and CN;
44.3.2. the United Kingdom Supreme Court came to the unanimous
conclusion that the MBs are properly to be classified under Chapter 90
of the CN with tariff heading 9021; and
44.3.3. the Supreme Court's decision was put before the European
Commission and submitted by it to all EU Member States along with a
summary of the Supreme Court's reasoning?
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