Amoena (UK) Ltd v Revenue and Customs [2016] UKSC 41

Amoena imported a Carmen mastectomy bra designed to hold silicone breast forms for post-mastectomy women. The Supreme Court held it should be classified as an 'accessory' to an artificial body part under chapter 90, attracting zero duty rather than 6.5% as a brassière.

Facts

The appellant, Amoena (UK) Ltd, imported the Carmen mastectomy bra, a garment designed to be worn with silicone breast forms by women who had undergone mastectomy, lumpectomy or breast reconstruction. Distinguishing features included left and right pockets to hold the breast forms firmly in place, wide padded straps to support the weight of the breast form and reduce neck and shoulder stress, and a specific cut and shape designed to ensure the breast form does not show.

The First-tier Tribunal (FTT) made detailed findings comparing the mastectomy bra with a normal brassière, noting that while most features could be found in ordinary brassières, the positioning of the pockets combined with a higher cup, and the central positioning of the straps, were unusual. The FTT found that the bra’s function was the containment of the breast form, and rejected arguments that it had additional medical purposes such as prevention of shoulder pain. It accepted, however, that the bra and breast form together helped lessen the psychological impact of mastectomy.

Issues

The case concerned classification under the EU Combined Nomenclature (CN). The question was whether the Carmen bra fell under:

• Chapter 62 subheading 6212 (brassières), attracting 6.5% duty; or
• Chapter 90 heading 9021 (orthopaedic appliances; artificial parts of the body; appliances worn to compensate for a defect or disability), read with note 2(b) on ‘parts and accessories’, attracting no duty.

Three potential routes into heading 9021 were considered: (i) orthopaedic appliance; (ii) appliance worn to compensate for a defect or disability; and (iii) part or accessory of an artificial part of the body (the breast form).

Arguments

The appellant contended that the bra fell within heading 9021, either as an orthopaedic appliance supporting the breast form, as compensating for a defect or disability when combined with the breast form, or as a part or accessory of the artificial breast form under note 2(b).

HMRC argued that ‘part of the body’ in note 6 referred only to natural body parts; that it was the breast form, not the bra, which compensated for any defect or disability; and that under the CJEU jurisprudence in Turbon and Unomedical, the bra was neither essential to the operation of the breast form (so not a ‘part’) nor did it improve its performance or provide additional functionality (so not an ‘accessory’).

Judgment

Orthopaedic appliance

Lord Carnwath (with whom the rest of the Court agreed) did not find it necessary to rule definitively but observed that the Court of Appeal’s conclusion that ‘parts of the body’ in note 6 referred to natural body parts was consistent with the ordinary understanding of orthopaedics as concerning the muscular-skeletal system.

Appliance to compensate for a defect or disability

The Court agreed with the FTT and Court of Appeal that it was the breast form, not the bra, which compensated for the defect or disability. The bra was worn solely to keep the breast form in place. That finding disclosed no error of law.

Part or accessory of an artificial body part

This was the issue on which the Supreme Court differed from the Court of Appeal. The Upper Tribunal had concluded that the bra was a part or accessory of the breast form. The Court of Appeal reversed, considering this inconsistent with CJEU authority in Turbon 1 and Unomedical.

Lord Carnwath analysed those authorities critically. He found difficulty with the reasoning in Turbon 1, since on a natural reading an ink cartridge would perform a ‘particular service relative to the main function’ of a printer. He considered that the proper distinction was between the appliance itself and the consumable materials used by it: ink and paper, like petrol in a car, are not ‘parts or accessories’. The words ‘particular service relative to’ must be construed as referring to services directly connected with the mechanisms or processes by which the appliance performs its function.

Applying this to the mastectomy bra: the breast form’s function does not depend on any mechanical or active process. The bra, by holding the breast form in place, enables it to perform its function and thus performs a particular service relative to its main function. Lord Carnwath agreed with McCombe LJ’s instinctive view in the Court of Appeal that on a natural reading the bra is an ‘accessory’. The requirement of ‘additional functionality’ was not essential under the second part of the test, but even if it were, it could arguably be met by the bra’s contribution to lessening the psychological impact of mastectomy. Although the bra was not a ‘part’ (being marketed separately and not essential in the strict sense), it was an ‘accessory’ suitable solely or principally for use with the breast form under note 2(b).

Implications

The decision clarifies the application of note 2(b) of chapter 90 of the CN to ‘parts and accessories’ of medical and prosthetic items. It demonstrates that the CJEU authorities on ink cartridges (Turbon) and drainage bags (Unomedical), while authoritative on the interpretation of the CN, must be applied carefully to items whose function does not depend on mechanical processes.

The Supreme Court’s reading distinguishes consumables from genuine accessories, and confirms that an item which holds a prosthesis in place so that it can perform its function may qualify as an ‘accessory’ even if alternative means of securing the prosthesis exist. The test under note 2(b) is whether the item is ‘suitable solely or principally’ for the relevant service, not how it compares to alternatives performing the same task.

Practically, the decision matters to importers and manufacturers of prosthetic-related products, who may benefit from zero-rated duty classification under chapter 90 rather than treatment as ordinary clothing. The judgment also illustrates the limits of national courts in following CJEU classification reasoning, particularly where it is acknowledged to be difficult to translate to factually different products.

Verdict: Appeal allowed. The Carmen mastectomy bra is properly classified under chapter 90 heading 9021 of the Combined Nomenclature, as an accessory of an artificial part of the body (the breast form), pursuant to note 2(b), and therefore attracts no customs duty.

Source: Amoena (UK) Ltd v Revenue and Customs [2016] UKSC 41