The Supreme Court held that a mastectomy bra designed to hold an artificial breast form in place is an accessory to that form for EU customs classification. It is therefore classified with the breast form under heading 9021 of the Combined Nomenclature and attracts no duty, rather than as a brassière under chapter 62 at 6.5 per cent. The Court allowed the importer’s appeal.
The Carmen mastectomy bra is designed for women who have undergone surgical removal of a breast or breasts, a lumpectomy, or breast reconstruction. It has pockets to hold silicone breast forms, wide padded straps, and a cut intended to conceal the form. The First-tier Tribunal compared it with an ordinary bra. Distinctive features included side supports, centrally positioned straps, and pockets used with a higher cup. The Tribunal found that the bra’s function was containment of the breast form. One purpose of the form and bra together was to lessen the psychological impact of mastectomy. It found no evidence that the bra prevented shoulder pain or problems arising from the absence of lymph nodes.
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Classification depends on the Combined Nomenclature. Heading 9021 covers orthopaedic appliances, artificial parts of the body, and appliances worn or carried to compensate for a defect or disability; such goods attract no duty. Otherwise the bra would fall under subheading 6212 as a brassière, at 6.5 per cent. Note 2(b) to chapter 90 classifies parts and accessories suitable for use solely or principally with a particular apparatus with that apparatus. Note 6 defines orthopaedic appliances as appliances for preventing or correcting bodily deformities, or for supporting or holding parts of the body after illness, operation or injury.
The First-tier Tribunal classified the bra under chapter 62. The Upper Tribunal reversed that decision. The Court of Appeal restored the classification under chapter 62. Amoena appealed.
Routes into heading 9021
Lord Carnwath, with whom Lady Hale, Lord Sumption, Lord Reed and Lord Hodge agreed, treated the possible routes into heading 9021 separately. He considered it unnecessary to decide whether the bra was an orthopaedic appliance. The Court of Appeal’s conclusion that “part of the body” meant a natural part was consistent with the ordinary understanding of orthopaedics as concerned with the muscular-skeletal system. Neither a breast form nor a mastectomy bra would naturally be so described.
He agreed that the bra was not itself an appliance worn to compensate for a defect or disability. The First-tier Tribunal had been entitled to find that the breast form, not the bra, compensated for the defect, and that the bra merely kept the form in place. That finding disclosed no error of law.
Accessory to an artificial body part
The breast form is an artificial part of the body; the bra is not. The question was whether note 2(b) made the bra a part or accessory suitable for use solely or principally with the breast form, and therefore classified with it. The First-tier Tribunal had not decided the point. The Upper Tribunal treated that omission as allowing it to reconsider fact and law, and held that the bra was a part or accessory because, used with the form, it enabled both to function as a prosthesis. The Supreme Court held that the Upper Tribunal was entitled to decide the issue.
The Court of Appeal held that this was inconsistent with the Court of Justice’s decisions on printer cartridges and on drainage bags for catheters and dialysers. Those decisions treated a part as essential to a whole, and an accessory as something designed to adapt a machine, increase its range of operations, or perform a particular service relative to its main function. Arden LJ held that the bra was not essential, because a form may be secured by adhesive strips, and that it added no functionality. McCombe LJ thought that in ordinary language the bra was an accessory because it held the form in place, but felt constrained by those cases to decide otherwise.
Lord Carnwath regarded the cartridge cases as of little direct factual help, while treating their guidance, as applied to note 2(b), as authoritative. He found part of the reasoning difficult: a cartridge does perform a service relative to a printer’s main function. A clearer distinction is between a machine and materials such as ink. The drainage-bag decision applied the guidance narrowly because the bags played no part in the appliances’ processes and only collected liquid afterwards.
Those authorities did not expose an error in treating the bra as an accessory. Marketed separately, it is not readily a “part” of the form. By holding the form in place, however, it enables the form to perform its function and performs a particular service relative to that function. Additional functionality was not an essential requirement, although the finding about psychological impact might arguably have met it. The conclusion was consistent with the Court of Justice’s principles, so the appeal should be allowed.
Verdict: The Court unanimously allowed Amoena’s appeal. The Carmen bra was classifiable under heading 9021 as an accessory to the artificial breast form it held in place.
Source: Amoena (UK) Limited v Commissioners for Her Majesty’s Revenue and Customs [2016] UKSC 41
