Amoena (UK) Ltd v HM Revenue and Customs

The (amended) decision of the FTT released on 28 November 2011 did not deal with Issue (1).

On Issue (2), the FTT rejected the argument that the MB was an orthopaedic appliance within Chapter 90 because it was distinct from the breast form and did not perform any corrective functions on its own. The breast form’s function could not determine the correct classification for the MB. It was irrelevant that artificial eyes fell within 9021 even though the eyes could not take over the function of a normal eye since the question was whether the MB, and not the breast form, was an appliance.

The UT came to the opposite conclusion. In its judgment dated 12 August 2013, it held as follows:

The UT dealt with a number of issues which do not arise on this appeal, including the question whether a MB can be classified under Chapter 90 when a bra is also used for non-medical purposes, and the question whether mass production disqualifies the MB.

I take the issues in the order in which they were argued and appear in the decision of the UT, though they could perhaps more easily have been taken in reverse order.

Mr Sarabjit Singh, for HMRC, submits that the UT was wrong to find that the MB was a part or accessory. Mr Singh submits that the correct approach to parts and accessories is to shown by Cases C276/00 and C250/05 Turbon International GMBH v Oberfinanzdirektion Koblenz, where the classification of a printer cartridge was considered. The CJEU held that the correct analysis was that the printer cartridge was an ink product since its essential characteristic was that it contained ink and it was therefore an ink product. It rejected the argument that the printer cartridge was a part or accessory for the purpose of the Chapter then under consideration because the printer could work even if a printer cartridge was not fitted (even though it would not be able to produce any readable copies). The printer cartridge was a significant product in its own right. On Mr Singh’s submission, Turbon is to be contrasted with a case which I shall consider in detail below, namely Case C-514/04 Uroplasty BV v Inspecteur van de Belastingdienst – Douana district Rotterdam [2006] ECR 1-67219, on which the UT relied, where the hydrogel was simply an ingredient, and not a finished product like an MB. Therefore, Mr Singh submits, the UT was wrong to place reliance on Uroplasty.

As to the question of accessory, Mr Singh, on discovering C152/10 Unomedical v Skatteministreet (Unomedical) at a late stage in his submissions, submits that the word “accessory” is to be given a restricted meaning as a matter of law in accordance with that case. The breast form was capable of functioning without the MB and so the MB was not an accessory to it.

For Amoena, Mr Tim Eicke QC emphasises that this is an appeal on the point of law and that therefore that HMRC have to show an error of law. If there is no definition in the GIRs or in the notes, then the ordinary language must be applied. The UT concluded that the MB was an accessory.

Mr Eicke agrees that the judgments in Uroplasty and Unomedical provided the most assistance. He submits that Turbon is distinguishable because the breast form could not perform its function without the MB. The test was correctly set out at the end of paragraph 57 of the judgment of the UT as follows:

“In our view, an accessory is not merely something which is used in conjunction with an item: an accessory must also contribute something to the item. We consider that an accessory must provide some additional functionality or enhance the performance of the item. An accessory is an optional improvement to the product whereas a part is something that is essential or integral to the functioning of the item.”

On Mr Eicke’s submission, paragraph 32 of the decision of the FTT can only be correct through the combined action of the breast form and MB. The UT was looking too narrowly at the individual parts of the MB.

Mr Eicke also relies on the definition of “accessory” in the Medical Devices Directive (93/42/EEC) (“the MDD”), but the UT held that this was not relevant. The term “accessory” is defined in the MDD as follows in terms which are sufficiently wide to include the MB:

“accessory' means an article which whilst not being a device is intended specifically by its manufacturer to be used together with a device to enable it to be used in accordance with the use of the device;…”

I start by setting out the reasoning of the UT on this issue in full to show how, understandably, they reached their conclusion:

“56….[Mr Singh] He submitted that the Carmen mastectomy bra was clearly not a part of the breast form. Mr Singh also submitted that the word “accessory” should be given its ordinary meaning. We agree that the words “parts and accessories” should be given their ordinary meaning, determined according to the context in which they appear. Mr Singh suggested that accessory means a subordinate item and the mastectomy bra is not subordinate to the breast form. Mr Singh also contended that the Carmen mastectomy bra could not be an accessory to the breast form because there were some 1500 breast forms and it could not be said for which breast form it was an accessory.

57 We do not agree that an accessory is necessarily subordinate although it may be. We do not accept the submission that an accessory must relate to a specific item. It is undoubtedly true that a single design of mastectomy bra may accommodate various types and sizes of breast forms but a bicycle bell may be fitted to a variety of bicycles and still be regarded as an accessory. In our view, an accessory is not merely something which is used in conjunction with an item: an accessory must also contribute something to the item. We consider that an accessory must provide some additional functionality or enhance the performance of the item. An accessory is an optional improvement to the product whereas a part is something that is essential or integral to the functioning of the item.

58 The CJEU in Uroplasty also considered whether the silicone flakes were a part or accessory suitable for use solely or principally with a particular kind of machine, instrument or apparatus in heading 9021 and thus classifiable with it according to Note 2(b) to Chapter 90. At [47] of Uroplasty, CJEU held

“In addition, contrary to Uroplasty's submission, it must be held that the [silicone flakes are] not a part or accessory of a machine, instrument of apparatus within the meaning of Note 2(b) to Chapter 90 of the CN”.

It appears that the CJEU reached that conclusion because it had found, in the previous paragraph, that the silicone flakes were a finished product (see also [53] of the judgment).

59 The Advocate General in Uroplasty had also concluded that the silicone flakes were a finished product (see [52] of the Opinion) but she also considered what would be the position if that were not the case at [63]:

“According to Explanatory Notes 2(r) to Chapter 39 CN and 1(f) to Chapter 90 CN, heading 9021 CN takes precedence over the headings in Chapter 39 CN. According to Explanatory Note 2(b) to Chapter 90 CN, this applies even if only the ready-to-use, pre-filled hypodermic syringes are regarded as end products, because it is clear that the flakes in question are intended solely for use in them.”

60 That observation shows that the Advocate General regarded the silicone flakes, if they were not a finished product, as a part or accessory suitable for use solely in the pre-filled syringes. On that analysis, the silicone flakes would be classified with the pre-filled syringes under Chapter 90. The Advocate General clearly felt able to say that the flakes were for use solely in the pre-filled syringes notwithstanding the evidence (see [39] of the Opinion) that the flakes could be implanted into the body by other means.

61 In our view, the Carmen mastectomy bra is a part of or accessory to the breast form in that the bra is used in conjunction with the breast form to enable both to function as a prosthesis for the natural breast that has been wholly or partly removed or reconstructed. As the FTT held at [32], the mastectomy bra cannot perform any corrective functions on its own without being used in conjunction with the breast form. We consider that finding to indicate that the bra is a part or accessory. We do not regard the fact that neither the bra nor the breast form would be a satisfactory prosthesis for the natural breast on their own as meaning that the bra cannot be a part or accessory for use with the breast form. We note that the silicone flakes in Uroplasty were similarly unable to perform their medical purpose without the hydrogel and a syringe.”

It is apparent from this extract that the parties did not cite the relevant authorities on “part” or “accessory” for the purposes of Note 2(b) to Chapter 90 to the UT. The CJEU interpreted these terms most recently and relevantly in Case C-152/10 Unomedical. The issue was the correct classification of urine drainage bags designed to be used in connection with dialysers and catheters. The function of the bag was to collect urine. It did not contribute to the process of dialysis or the work of the catheter. The bags were plastic and therefore provisionally fell within CN Chapter 39 (plastics and articles thereof), but Chapter 39 contained an exclusion for articles within Chapter 90. One possibility, therefore, was that the bags were parts or accessories of the dialyser or catheter, which were classified under Chapter 90.

The CJEU applied Turbon, noting that in that case the CJEU had held that:

“the notion of parts implies a whole for the operation of which the part is essential and that the notion of “accessories” implies an interchangeable part designed to adapt a machine for a particular operation or to increase its range of operations.”(para 29).

The CJEU further held that this was the meaning of parts or accessories in Chapters 84 and 85, and that the same meaning applied in Note 2(b) to Chapter 90 (para 34).

The bags could not be a part of the dialyser or catheter since they were not essential to the functioning of either instrument. Those appliances could function without a bag.

The bags were also not “accessories” since they did not improve the performance or functionality of the dialyser or catheter.

As to this case, the MB is not a part of the breast form in the sense given in Unomedical since it is not essential to the operation of the breast form. (The breast form may be, and in some instances is, simply strapped to the body.) The function of the breast form is to simulate the appearance of the natural body. It is not a question of whether the wearer perceives the breast form to be, or have become, a part of her body as the question of classification must always be determined by reference to the objective characteristics of the article in question.

In my judgment, contrary to the submission of Mr Eicke, the MB is also not an accessory of the breast form for the purposes of Chapter 90. It does not improve the performance of the breast form or give it any additional functionality which it is not capable of having without the MB.

As to the definition of “accessory” in the MDD, like the UT, I see no basis for applying this definition to the CN.

Note 6 to Chapter 90 contains a definition of “orthopaedic appliance”: see paragraph 17 above. This issue turns on the meaning of that Note.

Mr Singh submits that the first indent cannot apply because it is the breast form, and not the MB, which prevents or corrects any deformity.

As to the second indent, Mr Singh’s short point here is that an orthopaedic appliance must support a natural part of the body, and the UT were wrong to conclude otherwise. Supports for artificial parts of the body are not within the heading 9021 or its subheadings. The only subheading under which it could fall is 9021 90 90, but the heading requires that the appliance should “compensate for a defect or disability”. This does not, on Mr Singh’s submission, apply here because (1) it is the breast form, and not the MB, which compensates for the defect; and (2) the absence of a breast is not a “disability”. Even if it is, the MB does not compensate for it.

Mr Singh submits that HMRC’s interpretation of 9021 90 90 is consistent with the CNENs for heading 9021 which state that:

“…to compensate for the defect or disability means only appliances which actually take over or substitute for the function of the defective or disabled part of the body.

This heading does not include appliances which simply alleviate the effects of the defect or disability.”

Moreover, Mr Singh informs the court that HMRC is not aware of any country in which the MB is treated as an orthopaedic appliance. He notes that Amoena has not produced any evidence that it is so treated even though it exports MBs to some 60 countries. Mr Singh further informs the court that there is evidence that it is subjected to duty under Chapter 62 in two states of the USA and in Ireland.

Mr Eicke relies on the approach of the CJEU and Advocate General in Uroplasty to the interpretation of heading 9021. He submits that the expression “appliance” has to be interpreted to include a wide range of supports, even those which are not technical. Also, in examining the article to be classified, regard is to be had to its objective characteristics, including its intended purpose, and, on Mr Eicke’s submission, this was the case even if the purpose was not objectively ascertainable at first inspection. The broad approach, approved by the CJEU, means that the MB should be treated as for the purpose of compensating for a defect or disability. This follows, on Mr Eicke’s submission, from paragraph 61 of the Opinion of the Advocate General in Uroplasty, which states:

61.

Thus, read as a whole heading 9021 CN assumes a broad interpretation and is intended to cover all medical objects by means of which the medical purposes identified in the heading are pursued. (16) Accordingly, the term ‘appliance’ does not restrict the technical structure of a product but is intended to encompass also ‘medical supports’, ‘supports’, ‘products’ and ‘objects’ which are intended to compensate for defects by being implanted into the body.

The CJEU specifically agreed with the Advocate General’s point here, and held that an appliance did not have to have any particular element of technical structure:

52.

As the Advocate General explained in paragraph 61 of her Opinion, the term ‘appliance’ is not restricted to the technical structure of a product. It must therefore be held that the term includes products which are intended to compensate for a defect by being implanted in the body within the meaning of heading 9021 of the CN.

Mr Eicke submits that the UT were right to hold that the MB is an orthopaedic appliance because it substitutes for the muscles that hold up the breast form “which are part of the body, following the mastectomy.” (UT judgment, para 69). This gives effect to the broad approach to interpretation mandated by the CJEU. The wide interpretation of Note 6 is, on his submission, reinforced by the references in Chapter heading 9021 to the expressions “the body” and “any artificial part of the body” in line 2 of the heading. He submits there is no suggestion that the appliance to hold an artificial leg in place is outside Note 6.

Lastly Mr Eicke relies on Case C-260/00 to 263/00 Lohmann GmbH & Co KG and Others v Oberfinanzdirektion Koblenz. In this case, the national court faced a dilemma because various supports were said to be orthopaedic appliances when the same items could be used for ordinary purposes, e.g. knee supports. The essence of the guidance given by the CJEU on the question how to determine whether these items were orthopaedic appliances was in paragraph 45 of its judgment:

45 The answer to the first question in each of the cases is therefore that CN heading 9021 must be interpreted as meaning that products such as wrist orthoses, lumbar support belts, elbow supports and knee supports fall within that heading if they display characteristics which distinguish them, in particular by the materials of which they are made, method of operation or adjustability to the patient’s specific handicaps, from ordinary belts and supports for general use. It is for the national court to ascertain whether that is the case the main proceedings.

Mr Eicke submits that the MB has features which distinguish it from an ordinary bra. Further, the MB is worn for a different purpose from that for which an ordinary bra was worn. In addition the MB has to be fitted by a nurse. Mr Eicke submits that HMRC look too closely at the components of the appliance instead of it as a whole, including its purpose, and that the objective criteria show differences which exist beyond mere appearance. It is, he submits, wrong to focus on the fact that it can be used to perform some other function. This must be disregarded, as where an actor wears an appliance (e.g. a crutch) for some theatrical role. The market reality is that the MB is virtually only worn by women who have had parts of a breast removed. It is plainly more relevant to them. As stated above, they are fitted for an MB by a nurse. It is clear from the evidence in the market that there is specificity of purpose.

I start with the general approach to interpretation of the CN.

It is clear from the Opinion of Advocate General Kokott in Uroplasty that the court must apply a structured approach. At the first stage it must determine the intended use and material composition of the article. Next the court must make a provisional classification by reference to section and chapter headings. Then the court must make a combined examination of the headings and Notes, applying GIRs 2 to 5 in case of conflict. The interpretation of the headings and EN should be consistent with the HS. Finally the article must be placed under the appropriate subheading. The relevant paragraphs in the Opinion are as follows:

42.

First, the intended use and material composition of the article must be precisely determined. Next, in the light of the wording of the headings of the relevant sections and chapters a provisional classification must be undertaken according to the article’s intended use and material composition. There must then be considered whether on a combined examination of the wording of the headings and the explanatory notes to the relevant sections and chapters a definitive classification may be reached. If not, then in order to resolve the conflict between the competing provisions recourse must be had to Rules 2 to 5 of the general rules. Lastly, classification must be made under the subheadings.

43.

Classification must proceed on a strictly hierarchical basis taking each level of the CN in turn. The wording of one heading can be compared only with the wording of another heading; the wording of a first subheading can be compared only with the wording of other first subheadings of the same heading; and the wording of a second subheading can be compared only with the wording of other second subheadings of the same first subheading.(4)

44.

In this exercise the wording of the headings and the explanatory notes of the CN are to be interpreted so as to be consistent with the Harmonised System. The Court has consistently held that the explanatory notes drawn up, as regards the Harmonised System, by the World Customs Organisation, may be an important aid to the interpretation of the individual tariff headings, although they do not have legally binding force. (5)

The CJEU emphasised that the determination of the characteristics and properties of the article must be an objective one, and that the wording of the CN must prevail over the EN, which cannot alter the scope of the headings:

40      According to settled case-law, in the interests of legal certainty and ease of verification, 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 CN and of the notes to the sections or chapters (see, in particular, Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 13; Case C-495/03 Intermodal Transports [2005] ECR I-8151, paragraph 47; Case C-445/04 Possehl Erzkontor [2005] ECR I-0000, paragraph 19; and Case C-500/04 Proxxon [2006] ECR I-0000, paragraph 21).

41      The Explanatory Notes to the CN and those to the HS are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force. The wording of those Notes must therefore be consistent with the provisions of the CN and cannot alter their scope (see, in particular, Case C-130/02 Krings [2004] ECR I-2121, paragraph 28, Case C-467/03 Ikegami [2005] ECR I-2389, paragraph 17, and Proxxon paragraph 22).

42      For the purposes of classification under the appropriate heading, it is important, finally, to recall that the intended use of a product may constitute an objective criterion in relation to tariff classification if it is inherent in the product, and such inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties (see Krings paragraph 30, Ikegami, paragraph 23, and Proxxon, paragraph 31).

The Advocate General also states that the term “appliance” should be interpreted broadly: see paragraph 61, set out above. Some insight into the point she was making is to be derived from her footnote 16, which states:

The fact that in the last possibility considered in the present case, the French text uses only the word ‘appareil’ for the English word ‘appliance’ and not the phrase ‘articles et appareils’ is not to be regarded as disclosing a restrictive intention. Instead, a single, broad interpretation covering all the possibilities is to be adopted.

The article must still, therefore, have a medical purpose.

The UT correctly drew attention to the fact that Uroplasty contains further important guidance on the interpretation of the term “orthopaedic appliance”. In the opinion of both the Advocate General and the CJEU, the term “orthopaedic appliance” had to be given a wide meaning. At the time there was no Note 6, which was introduced subsequently, but there is nothing to indicate that Note 6 was intended to affect the reasoning in Uroplasty. The case concerned silicone flakes which were injected into the body, with a substance called hydrogel, to alleviate incontinence. They could not perform the same function as a muscle but they substituted for its failure. Moreover, an orthopaedic appliance did not have to be a technical apparatus.

In my judgment, the facts of Uroplasty do not provide much assistance on the facts of this case. Nothing is said in Uroplasty about supporting artificial parts of the body. The UT took the view that in Uroplasty the flakes substituted for muscle and that the hydrogel performed the function of the MB (see para 49 of the UT’s judgment). However, as the UT pointed out, the classification of the hydrogel was not in issue and so the analogy is of limited use. Mr Singh makes the further point, with which I need not deal, that the analogy between hydrogel and the MB is also not correct because, unlike hydrogel, the MB is not a single use item. It could be used without the breast form, or by women who have had a lumpectomy rather than a mastectomy.

I turn next to the structured approach in Uroplasty explained above, starting with the characteristics and properties. The FTT has found these, as set out above. In particular, the FTT found that the primary purpose of the MB was to hold the breast form(s) in place, not to compensate for a defect or disability. Thus the first indent in Note 6 cannot apply.

I can deal swiftly with the sections and the Chapters as no-one has suggested that the narrative in them is important in this case. The candidate sections are Sections XI and XVIII, but under GIR 1 the wording here does not play any part in interpretation. The candidate chapters are Chapters 62 and 90.

The next task is to compare each of the headings and notes. The heading of, and notes to, Chapter 62 disclose that this Chapter applies to clothing and not to orthopaedic appliances. The fact that the HS does not perceive any overlap between bras and orthopaedic appliances suggests that no significant overlap is contemplated. The heading of, and notes to, Chapter 90 disclose a wide range of objects. Note 1(b) shows that textile support articles are excluded but only where they depend solely on elasticity. The reference to Section XI in brackets at the end of this Note is no doubt so that the user is specifically referred to Chapter 62. No-one has suggested that Note 1(b) constitutes the limit of the overlap.

Note 6 specifically defines “orthopaedic appliances” for the purposes of heading 9021 and does so by reference to their function or purpose, which I take to be their primary purpose, and not their physical characteristics. Mr Eicke repeats his submission that the term “orthopaedic appliance” is to be interpreted broadly. He submits that the MB qualifies because it has a medical purpose.

While the HSENs are not binding on the CJEU, they are important as an aid to interpretation as a means of ensuring the uniform application of the EU Customs Code: see, for example, Lohmann where the CJEU held:

31.

In addition, the Court has consistently held that the purposes of interpreting the Common Customs Tariff both the notes which head the chapters of the Common Customs Tariff and the HS Explanatory Notes are important means of ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation.

As Mr Singh submits, the HSENs make it clear that the heading 9021 does not apply to products which merely alleviate a condition. They must compensate for a defect or disability even though this is not expressly stated in the heading to be a required characteristic of each of the items mentioned in the heading. It would follow that an article within the particular category on which Amoena relies – 9021 90 90 - would also have to compensate for a defect or disability in the sense given in the HSENs.

In my judgment, given that (1) heading 9021 does not indicate that there can be articles within heading 9021 which do not compensate for a defect or disability, and (2) when the Advocate General opined that the expression “orthopaedic appliance” should have a broad meaning, she was particularly addressing the ambiguity in the word “appliance” as used in the English language version of heading 9021, I consider that the correct interpretation is that, to be an orthopaedic appliance within heading 9021, the product must compensate for a defect or disability. That is the function of the breast form. The MB clearly does not do this.

Mr Eicke repeatedly submits that the FTT found that a woman wore the MB in order to compensate for a defect or disability. But the FTT, as I read their decision, did not say this. In the judgment of the FTT the MB was worn to hold the breast form in place and the breast form compensated for the defect or disability.

I move to the second point: does Note 6 apply to supports for artificial body parts, as the UT held? In my judgment, the answer to this question is no. I start by making some observations about Note 6. It does not prescribe the material composition of orthopaedic appliances. Rather orthopaedic appliances are defined by their function. Their functions are limited to the two indents in Note 6. Note 6 exhaustively defines the functions and therefore the range of orthopaedic appliances for the purposes of Chapter 90.

The UT held that Note 6 was satisfied on the basis that “parts of the body” in the second indent included artificial parts of the body. On this appeal, reliance is only placed on the second indent.

The scheme of the two indents is important. The first covers a deformity which can be prevented or corrected by the appliance. This seems to be directed at remedying the situation caused by a deformity, e.g. loss of teeth. The second indent appears to include measures of a supportive nature, which may be only temporary such as splints and slings. Heading 9021 is consistent with this although it reverses the order of the indents. Taking Mr Eicke’s example of a strap holding up an artificial leg, there is no reason to mention the express purpose of supporting a prosthesis because in an appropriate case this would be a part of the orthopaedic appliance in question to which Note 2(b) would apply. In fact, the range of items that can be within the second indent because they support a body part is reduced to some extent by the fact that purely elasticated items have already been excluded by Note 1(b) to Chapter 90.

Most importantly, it is clear that other references to a body in Note 6 and heading 9021 cannot include artificial body parts: see the reference to “bodily deformity” in the first indent and “body” in heading 9021, which must refer to the natural body. These terms are used in contrast to the words “artificial parts of the body” in heading 9021. Where the drafters of the CN wish to refer to artificial body parts, they say so.

The MB in fact falls outside Note 6 on the findings of the FTT because it supports the breast form and it is the breast form which corrects the deformity. There is no difference for this purpose between a disability and a deformity.

That takes me to Mr Eicke’s point on Lohmann. Effectively he argues that this case lays down a separate test for an “orthopaedic appliance” where various types of the same article are used for ordinary purposes. The test on the basis of this case, he submits, is whether there are characteristics which distinguish them from articles in ordinary use. He refers to the evidence given before the FTT.

I read Lohmann as providing guidance on the question how heading 9021 applies where there are in ordinary use articles of the same types as that for which relief from duty under heading 9021 applies. I do not read it as dispensing with the other requirements for an orthopaedic appliance. But even if I am wrong on this point, the CJEU’s holding in paragraph 45 is focused on what the article reveals about itself, i.e. its appearance.

As Mr Singh submits, the material used was the same as for an ordinary bra, and the fastening operated in the same way as a normal bra. The MB had pockets but then according to the finding of the FTT so did some normal bras so this was not a distinguishing characteristic. The three distinguishing features found by the FTT are set out in paragraph 4 above. Despite these features, the FTT found:

[The MB’s] Its appearance is so close to that of a normal brassiere that it could not be determined from its objective characteristics that it is worn to compensate for a defect or disability, something which is very obvious in the case of the items which were considered by the German authorities.

In this passage, the FTT asks itself whether the objective characteristics of the MB disclosed that the article was worn to compensate for a defect or disability. It would appear that the CJEU was not as precise as this and envisaged that the fact-finder would ask whether there were features to distinguish the bra from one in ordinary use. But I do not consider that there is any significant difference in this context between those two questions. If a person could not tell that it was a MB, he could not tell that it was not for ordinary use.

In the light of the appearance of the MB, Lohmann does not assist Amoena.

Finally, Mr Eicke relies on the fact that the MB would be within the meaning of orthopaedic appliance in the MDD. As HMRC accepts, the MB is zero-rated for VAT purposes under the MDD because the MB falls within the definition of “medical device” in the MDD. This provides in material part that “medical device” means “any instrument, apparatus, appliance, material or other article, whether used alone or in combination… to be used for human beings for the purpose of… diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap…”.

Mr Singh submits that the fact that medical devices are zero-rated for VAT as aids to the handicapped does not help for customs classification which concerns countries outside the EU. I agree. I do not consider that this answer can be different because the MB is treated as a medical device for VAT purposes.

In addition, in agreement with the UT (para 55), I do not consider, in the absence of authority, that it is correct to say that legal certainty requires that the term “orthopaedic appliance” must be defined in the same way in the CN as “medical device” for the purposes of the MDD. This Directive deals a with very different subject-matter.

I would therefore allow the appeal on this issue.

For the reasons given above, I would allow this appeal. The UT were in error in holding that the MB was an “orthopaedic appliance” within heading 9021 of Chapter 90 in the CN. It therefore falls within Chapter 62 of the CN.

I am most grateful to Arden LJ for her comprehensive citation of the various regulations, notes and guidance which fall for consideration and for her statement of the facts and procedural history of the case. In this judgment, I will adopt the definitions of terms that Arden LJ uses.

I admit to having found the case a difficult one to decide, not least because of the extraordinarily labyrinthine quality of the instruments that we have to construe and what appears to me to be some challenging logic in parts of the decided cases that were cited to us.

On issue (2) (orthopaedic appliance), I find myself in broad and respectful agreement with Arden LJ that the MB is not an orthopaedic appliance. As a matter of strict construction of the CN, the MB could only fall within the description:

“…other appliances which are worn…to compensate for a defect or disability…”

in one of the descriptions that follow under heading 9021. The only potential qualifier under that heading, it seems to me, is “other” in 9021 90 90 which throws one back to the beginning of the heading, requiring that the other appliance be worn “to compensate for a defect or disability”. We are then told by the CNENs for 9021, which are quoted by Arden LJ in paragraph 46 above, that the term “to compensate for a defect or disability” means

“only appliances which actually take over or substitute for the function of the defective or disabled part of the body.

This heading does not include appliances which simply alleviate the effects of the defect or disability.”

It seems to me that the MB cannot meet this expanded definition. Accordingly, it is not an “orthopaedic appliance” within 9021.

Turning to issue (1), however, I find this more difficult still. It is common ground and agreed on all hands that the breast form itself is an artificial part of the body and would qualify for inclusion in 9021 under 9021 39 90. In general, accessories to parts included in Chapter 90 are to be included in the Chapter. In any normal parlance the MB would surely be an accessory to the breast form. It holds it up. Certainly, there was evidence that there were other means, apart from MBs, for securing breast forms, but in one way or another something has to be done to prevent the form simply sliding down the body and out of place. The MB is, therefore, in my view, as a matter of simple common sense, an accessory designed to perform that imperative function in relation to the breast form.

However, is that the correct analysis under the CN, as interpreted in the cases decided in the CJEU?

Again, as a matter of language/construction of the instrument, I would conceive the answer to this question to be “Yes”. That answer would depend upon Note 2 at the beginning of Chapter 90. I would consider that the MB would properly fall within the description of an accessory

“for [an] article of this chapter … to be classified according to the following rules…

(b)

…accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus with a number of machines, instruments or apparatus of the same heading…are to be classified with the machines, instruments or apparatus of that kind.

(c)

All other parts or accessories are to be classified in heading 9033”

9033 provides as follows:

“Parts and accessories (not specified or included elsewhere in this chapter) for…appliances, instruments or apparatus of Chapter 90.”

We derive from the opinion of the Advocate-General in Uroplasty (supra) (paragraphs 59 and 60) that the word “appliance” in this part of the instrument is of wide meaning, including “apparatus”, “instrument” or “device” or the equivalent of the French term “article et appareils”. “Appareil” can be rendered in German as “Apparat” or “Gerät” and “article” corresponds to the German “Ware” (product) or “Gegenstand” (object). But, of course in any event, whether an appliance or not, the breast form is a qualifying artificial body part and any proper accessory to it falls within the same classification.

Among the meanings for “accessory” in the Oxford English Dictionary is:

“Of a thing: contributing as an adjunct or in a minor way; subsidiary; auxiliary; supplementary”.

It is hard to see how an MB is not “contributing as an adjunct”, “auxiliary” or “supplementary” to an artificial breast form.

As a matter of language alone, therefore, I would be inclined to hold that the MB is an accessory for an artificial body part, namely the breast form.

Is this, however, compatible with cases concerning the concept of “accessory” in the CN, as decided by the CJEU?

While a cursory internet search reveals many entries for printer ink cartridges under “printer accessories”, the CJEU has held that such a cartridge is not an accessory to a printer.

In Turbon (supra), we find in paragraph 29 of the judgment that in view of the fact that a cartridge such as this was specifically designed for, and could only be used by, a particular type of printer, and had a technically sophisticated ink flow mechanism accordingly, the national court wondered (perhaps not surprisingly) whether the cartridge should not be regarded as “part” or “accessory” of the printer.

The CJEU (in the passage which I found logically challenging) held (in paragraphs 30 and 31) that the cartridge was not a “part” of the printer and, on the question of whether it was an accessory, (in paragraph 32) said as follows:

“…such a cartridge cannot be classified under heading 8473 as an “accessory” of the printers in question. While the cartridges are interchangeable, they are not designed to adapt the printers for a particular operation, or to perform a particular service relative to their main function, or to increase the range of operations, within the meaning of HS explanatory note relating to heading 8473. Such cartridges merely enable ESC printers to fulfil their usual function, namely, the transcription onto paper of work produced with the aid of a computer.”

The court analysed the question as it did by reference to an HS explanatory note relating to heading 8473 which it quoted in paragraph 12 of the judgment as follows:

“12.

Finally, according to the HS explanatory note relating to heading 8473, ‘[t]he accessories covered by this heading are interchangeable parts or devices designed to adapt a machine for a particular operation, or to perform a particular service relative to the main function of the machine, or to increase its range of operations’.”

For my part, I would have thought that a printer cartridge was classically something which “performs a particular service relative to the main function of” the printer, namely to enable it to print, but apparently not.

I was inclined to think that the problem caused in my mind by this decision on heading 8473 would not matter in the present case because it depended to a significant degree upon an explanatory note to heading 8473. We are concerned with headings 9021 and following. However, we then get to the decision of the CJEU in Unomedical (supra) which concerned plastic dialysis drainage bags (intended for exclusive use with dialysers) and plastic urine drainage bags (intended exclusively for use with catheters). The competition here was between headings 9018 (within Chapter 90 with which we are concerned) and 3926 (“plastics and articles thereof” with which we are not).

The court held that these items were not accessories for the dialysis machines or the catheters. They fell within 3926. In so deciding, the court said this in paragraphs 29 and 30 of its judgment:

“29.

In that regard, it must be noted, as did the national court, that Regulation No 2658/87, in the versions applicable to the main proceedings, does not define the notions of ‘parts’ and ‘accessories’ within the meaning of Chapter 90 of the CN. However, the Court, ruling on the scope of those concepts in connection with heading 8473 of the CN for the purpose of classifying ink cartridges for printers, stated that the notion of ‘parts’ implies a whole for the operation of which the part is essential and that the notion of ‘accessories’ implies an interchangeable part designed to adapt a machine for particular operation, or to increase its range of operations, or to perform a particular service relative to the main function of the machine (see Turbon International, paragraphs 30 and 32).

30.

In the present case, there is nothing which permits the conclusion that those notions cannot be defined identically in respect of headings 8473 and 9018 of the CN. Furthermore, application of the same definitions for those two headings will ensure a coherent and uniform application of the Common Customs Tariff.”

The court continued in paragraph 33 with this:

“33.

In that regard, it is settled case-law that both the notes which heads the chapters of the Common Customs Tariff and the HS Explanatory notes are important means for ensuring the uniform application of the Tariff and, as such, may be regarded as useful aids to its interpretation (see, inter alia, Case C-338/95 Wiener SI [1997] ECR 16495, paragraph 11, and Turbon International, paragraph 22). Consequently, in the absence of any element to the contrary, the definition of the notion of ‘accessory’ given in the judgment in Turbon International must be applied, on the basis of the HS explanatory note to heading 8473, to heading 9018 of the CN.”

Thus, the definition of accessory derived from 8473 is imported into chapter 90.

So, is the MB an accessory to the breast form in the sense that it “perform[s] a particular service relative to the main function” of the breast form. As might be understood from the above, I think that, on any natural meaning of these words, it does precisely that; it holds it in place and prevents it sliding off the body, even if there may be other devices that are capable of achieving that result.

Is that enough for us to hold that the MB is an “accessory” to the breast form, if the law that we have to apply is that an ink cartridge for a printer does not perform such a service for the printer? Regrettably, I feel constrained to hold that the answer is “No”.

On this basis, the MB would not be an accessory to the breast form within the meaning of Chapter 90.

With reluctance, therefore, I agree that the appeal must be allowed.

I am also most grateful to Arden LJ for her comprehensive review of the relevant regulations, notes and guidance together with her statement of facts and procedural history. I, like McCombe LJ, find the logic in parts of the decided cases testing and indeed I too would have thought that a printer cartridge was typical of something which 'performs a particular service relative to the main function of' a printer, namely to enable it to print.

The analysis of Arden LJ and McCombe LJ however lead me to the reluctant conclusion that, notwithstanding any view I may hold as to the natural meaning of the relevant words, the law is such that I also can only conclude that the MB would not be an accessory to a breast form within the meaning of Chapter 90.

Accordingly I too would allow the appeal.