ORDER OF THE COURT (Tenth Chamber)

3 September 2021( )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings 6212 and 9021 – Mastectomy bras – Implementing Regulation (EU) 2017/1167 – Notion of ‘accessories’ – Interpretation of the judgment of 19 December 2019, Amoena (C‑677/18, EU:C:2019:1142))

In Case C‑706/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the First-tier Tribunal (Tax Chamber) (United Kingdom), made by decision of 29 December 2020, received at the Court on 29 December 2020, in the proceedings

Amoena Ltd

v

Commissioners for Her Majesty’s Revenue and Customs,

THE COURT (Tenth Chamber),

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

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of the judgment of 19 December 2019, Amoena (C‑677/18, EU:C:2019:1142) (‘the Amoena judgment’).

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 fittings: … …

– 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).

…’

Implementing Regulation (EU) 2017/1167

12 In order to ensure the uniform application of the CN, the Commission adopted Implementing Regulation (EU) 2017/1167 of 26 June 2017 concerning the classification of certain goods in the [CN] (OJ 2017 L 170, p. 50), which, in accordance with Article 3, entered into force on 21 July 2017.

13 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.’

14 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. The images are purely for information.

The dispute in the main proceedings and the questions referred for a preliminary ruling

15 The dispute in the main proceedings is identical to that which gave rise to the Amoena judgment. It follows from the description of that dispute in that judgment that Amoena, a company established in the United Kingdom, imports mastectomy bras which it markets under the name ‘Carmen’.

16 On 1 August 2017, following the importation by Amoena of a consignment of mastectomy bras, the tax authority classified those goods in subheading 6212 10 90 of the CN, in accordance with Implementing Regulation 2017/1167, and applied a rate of customs duty of 6.5%, of which Amoena applied for a refund that same day.

17 On 1 September 2017, the tax authority refused that application, which Amoena contested before the referring court. Amoena claimed that Implementing Regulation 2017/1167 was invalid on the grounds that it was the result of a manifest error, that it infringed the limited powers of the Commission in so far as it illegitimately narrowed the scope of heading 9021 of the CN and that it infringed Article 4(3) TEU. It also claimed that, in the light of their specific purpose and their objective characteristics, the mastectomy bras ought to be classified as breast form ‘accessories’, in accordance with Note 2(b) of Chapter 90 of the CN, and ought to be classified in Heading 9021, thus excluding them from customs duties.

18 In paragraph 54 of the Amoena judgment, the Court held that, 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 had not altered the subject matter or the scope of those two tariff headings.

19 In particular, the Court stated in paragraph 53 of that judgment that ‘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’.

20 The Court concluded, in paragraph 62 of the Amoena judgment, that examination of the questions raised in the case which gave rise to that judgment had not revealed any elements capable of affecting the validity of Implementing Regulation 2017/1167.

21 According to the referring court, the present request for a preliminary ruling is justified by the difficulties in understanding and applying paragraph 53 of the Amoena judgment.

22 The referring court recalls the case-law of the Court, cited in paragraph 51 of the Amoena judgment, according to which 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 enable it to perform a particular service relative to its main function and states that only that third situation is relevant in the present case. It is also of the view that, in the light of the particular facts of the case in the main proceedings and the judgment of the Supreme Court of the United Kingdom of 13 July 2016, cited in paragraph 19 of the Amoena judgment, mastectomy bras ought to be regarded as breast form ‘accessories’, in so far as they have a particular function relative to the main function of breast forms.

23 In that regard, first, the national court is unsure whether, in paragraph 53 of the English-language version of the Amoena judgment, the terms ‘them’, ‘they’ and ‘their’ should each be regarded as referring to the mastectomy bras or to the breast forms.

24 Second, the national court asks whether the second sentence of paragraph 53 of the Amoena judgment lays down a test which differs from that referred to by the Court in paragraph 51 of that judgment, by requiring that, in order for them to be regarded as ‘accessories’, the mastectomy bras must allow the breast forms to perform a function other than that for which those forms are designed, or whether that second sentence seeks only to apply the test identified in that paragraph 51.

25 In those circumstances, the First-tier Tribunal (Tax Chamber) (United Kingdom) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are the terms “them”, “they” and “their” in paragraph 53 [of the English-language version] of the [Amoena] 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 [from] that identified in paragraph 51 of the [Amoena judgment], 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?’

Consideration of the questions referred

26 Under Article 99 of its Rules of Procedure, the Court may, in particular, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, decide at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to rule by reasoned order.

27 It is appropriate to apply that provision in the present case.

The first question

28 By its first question, the referring court asks, in essence, whether, in the English-language version of paragraph 53 of the Amoena judgment, the terms ‘them’, ‘they’ and ‘their’ refer to the mastectomy bras or to the breast forms.

29 First, it must be observed that, as regards the first sentence of paragraph 53 of the Amoena judgment, in the English-language version, the personal pronoun ‘them’, which appears between the words ‘do not allow’ and ‘to perform a particular service’, and the possessive pronoun ‘their’, used on three occasions, followed in turn by the words ‘range of operations’, ‘main function’ and ‘intrinsic function’, are used as complementary elements and refer to the breast forms. By contrast, the personal pronoun ‘they’, which is used as the subject before the words ‘add nothing to that function’, refers to mastectomy bras. The first sentence of paragraph 53 begins with the words ‘such brassieres do not allow breast forms to be adapted for a particular function’, which makes it possible, subsequently, to identify clearly what is referred to by the personal pronoun and the possessive pronoun as complementary elements (‘them’ and ‘their’) and the personal pronoun as the subject (‘they’).

30 Second, it is apparent from the second sentence of paragraph 53 of the Amoena judgment, in the English-language version, that the possessive pronoun ‘their’, which is the complement to the terms ‘side openings’ and the first two personal pronouns ‘they’, used as subjects of the verbs ‘can’ (‘although they can’) and ‘allow’ (‘they do not however allow’) refer to the mastectomy bras. In addition, the last personal pronoun ‘they’, which is present as the subject of the verb ‘are designed’, refers to the breast forms, since the function for which those forms were designated, namely ‘replacing all or a part of one or both breasts which have undergone surgical removal’, is specified.

31 Consequently, the answer to the first question is that paragraph 53 of the Amoena judgment, in the English-language version, must be interpreted as meaning that:

– in the first sentence of that paragraph, the terms ‘them’ and ‘their’ refer to the breast forms while the term ‘they’ refers to the mastectomy bras;

– in the second sentence of that paragraph, the term ‘their’ and the first two occurrences of the term ‘they’ refer to the mastectomy bras, whereas the last occurrence of the term ‘they’ refers to the breast forms.

The second question

32 By its second question, the referring court seeks, in essence, to ascertain whether, in the second sentence of paragraph 53 of the Amoena judgment, the Court, in order to determine whether the mastectomy bras may be regarded as breast form ‘accessories’, for the purposes of Chapter 90 of the CN, used a test which differs from that prescribed by the case-law cited in paragraph 51 of that judgment.

33 Since, by its second question, the referring court is seeking clarification of the scope of the second sentence of paragraph 53 of the Amoena judgment, it must be stated that, in that sentence, for the mastectomy bras, the Court applied the test, recalled in paragraph 51 of that judgment, according to which interchangeable parts or devices which enable a machine to perform a particular service relative to its main function must be classified as ‘accessories’ for the purposes of Chapter 90 of the CN.

34 In that regard, it must be pointed out that, in order for that test to be satisfied, it is important that the possibly ancillary element, which, in the present case, is the mastectomy bra, can enable the ‘machine’ for which that element is designed, namely, in the present case, the breast form, to perform an additional service or function in connection with the main function of that machine.

35 It follows that, in analysing whether the mastectomy bras can be classified as ‘accessories’ to breast forms, for the purposes of Chapter 90 of the CN, both the characteristics of those bras and how they are used with breast forms must be examined.

36 That is precisely the examination carried out by the Court in the second sentence of paragraph 53 of the Amoena judgment. Accordingly, the Court stated, in essence, that, although the mastectomy bras allow breast forms to be held in place thanks to their side openings, they do not, however, allow the breast forms to perform an additional function beyond the main function of those forms, which consists of replacing all or part of one or both breasts which have undergone surgical removal. That finding thereby enabled the Court to justify the assertion in the first sentence of paragraph 53 that the mastectomy bras add nothing to the main function of the breast forms and do not improve their intrinsic function.

37 Furthermore, since the referring court refers, in the present case, to the judgment of the Supreme Court of the United Kingdom of 13 July 2016, to which it had already referred in its request for a preliminary ruling in the case which gave rise to the Amoena judgment, it must be stated that, in that judgment, the Court gave a final response in the negative to the question whether, in relation to the factors set out by the referring court, which do not appear to have changed in the present request for a preliminary ruling, the mastectomy bras can be regarded as breast form ‘accessories’ for the purposes of Chapter 90 of the CN.

38 It follows from the foregoing considerations that the answer to the second question referred is that, in the second sentence of paragraph 53 of the Amoena judgment, the Court, in order to determine whether the mastectomy bras may be regarded as breast form ‘accessories’ for the purposes of Chapter 90 of the CN, merely applied the test defined in paragraph 51 of that judgment, according to which interchangeable parts or devices which enable a machine to perform a particular service relative to its main function must be classified as ‘accessories’ for the purposes of that chapter.

Costs

39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Tenth Chamber) hereby orders:

1. Paragraph 53 of the judgment of 19 December 2019, Amoena (C‑677/18, EU:C:2019:1142), in the English-language version, must be interpreted as meaning that:

– in the first sentence of that paragraph, the terms ‘them’ and ‘their’ refer to the breast forms and the term ‘they’ refers to the mastectomy bras;

– in the second sentence of that paragraph, the term ‘their’ and the first two occurrences of the term ‘they’ refer to the mastectomy bras, whereas the last occurrence of the term ‘they’ refers to the breast forms.

2. In the second sentence of paragraph 53 of the judgment of 19 December 2019, Amoena (C‑677/18, EU:C:2019:1142), the Court, in order to determine whether the mastectomy bras may be regarded as breast form ‘accessories’ for the purposes of Chapter 90 of the Combined Nomenclature, 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, as amended by Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016 merely applied the test defined in paragraph 51 of that judgment, according to which interchangeable parts or devices which enable a machine to perform a particular service relative to its main function must be classified as ‘accessories’ for the purposes of that chapter.

Luxembourg, 3 September 2021.





A. Calot Escobar M. Ilešič