Amoena Ltd v Commissioners for Her Majesty's Revenue and Customs.
Date: 2019-12-19
31


It should, first of all, be noted that, according to settled case-law, a classification regulation is of general application in so far as it does not apply to an individual trader but, in general, to products which are the same as that examined by the CCC. In the interpretation of a classification regulation, in order to determine its scope, account must be taken, inter alia, of its statement of reasons (judgment of 13 September 2018, Vision Research Europe, C‑372/17, EU:C:2018:708, paragraph 40 and the case-law cited).
32


Moreover, if a classification regulation is not directly applicable to goods which are not identical, but only similar to the goods covered by that regulation, the latter is applicable by analogy to such goods. In that regard, it suffices that the goods to be classified and those covered by the classification regulation are sufficiently similar (judgment of 13 September 2018, Vision Research Europe, C‑372/17, EU:C:2018:708, paragraph 44).
37


The Court has repeatedly held that the European Parliament and the Council of the European Union have conferred upon the Commission, acting in cooperation with the customs experts of the Member States, broad discretion to define the subject matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures referred to in Article 57(4) of Regulation No 952/2013 does not authorise it to alter the subject matter and the scope of the tariff headings (see, to that effect, judgments of 22 March 2017, GROFA and Others, C‑435/15 and C‑666/15, EU:C:2017:232, paragraph 49, and of 22 February 2018, Kubota (UK) and EP Barrus, C‑545/16, EU:C:2018:101, paragraph 23).
39


In that regard, it should be noted that, by virtue of general rule 1 for the interpretation of the CN, the tariff classification of good is in principle determined according to the terms of the headings and any relative section or chapter notes. By virtue of general rule 6 for the interpretation of the CN, the classification of goods in the subheadings of a heading is to be determined according to the terms of those subheadings and any related subheading notes.
40


According to the Court’s settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes relating to the sections or chapters (judgment of 15 May 2019, Korado, C‑306/18, EU:C:2019:414, paragraph 36 and the case-law cited).
41


Those objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (judgment of 22 February 2018, SAKSA, C‑185/17, EU:C:2018:108, paragraph 31 and the case-law cited).
44


In that regard, it must be noted that although the intended use of a product may, admittedly, constitute an objective criterion for classification, that is only to the extent that that use is inherent in that product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, to that effect, judgment of 15 May 2019,Korado, C‑306/18, EU:C:2019:414, paragraph 37 and the case-law cited). However, even assuming that the bras covered by Implementing Regulation 2017/1167 are, as is claimed by Amoena, exclusively or, at least, principally used by women who have undergone surgical removal of one or both breasts allowing them to insert a breast form, that use is not such as to invalidate the finding made in the previous paragraph of the present judgment.
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).
55


It should be noted that the principle of sincere cooperation not only obliges the Member States to take all the measures necessary to guarantee the application and effectiveness of EU law but also imposes on the EU institutions mutual duties to cooperate in good faith with the Member States (judgment of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 87).
56


Therefore, according to the Court’s case-law, the principle of sincere cooperation can, in certain circumstances, impose procedural obligations on the Commission during the preparation of a legal act, in particular in so far as it can be required to gain knowledge of and to examine the arguments put forward by a Member State against that act (see, to that effect, judgments of 20 September 2001, Belgium v Commission, C‑263/98, EU:C:2001:455, paragraphs 94 to 96, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 84).
58


Moreover, it should be noted that, when adopting a tariff classification regulation, the Commission cannot be bound by a judgment of a court of a Member State, including a supreme court. It is settled case-law that such a regulation is adopted by the Commission, following the opinion of the CCC, when the classification in the CN of a particular product is such as to give rise to difficulty or to be a matter for dispute (judgments of 26 April 2017, Stryker EMEA Supply Chain Services, C‑51/16, EU:C:2017:298, paragraph 59, and of 15 May 2019, Korado, C‑306/18, EU:C:2019:414, paragraph 54), since such a situation of legal uncertainty may in particular exist in the event of case-law or administrative divergences between the Member States concerning the tariff classification of the same product.
60


In that regard, it should be noted that, according to the Court’s case-law, the fact that the customs authorities of another Member State have issued a BTI for specific goods to a person not party to the dispute pending before a national court, against whose decisions there is no judicial remedy under national law, which seems to reflect a different interpretation of the CN headings from that which that court considers it must adopt in respect of similar goods in question in that dispute, most certainly must cause that court to take particular care in its assessment of whether there is no reasonable doubt as to the correct application of the CN (see, to that effect, judgments of 15 September 2005, Intermodal Transports, C‑495/03, EU:C:2005:552, paragraphs 33 and 34, and of 7 April 2011, Sony Supply Chain Solutions (Europe), C‑153/10, EU:C:2011:224, paragraph 42).