Allowed Application for Reference to CJEU under art 267 TFEU. Question whether of European Commission Implementing Regulation effectively overturning UK Supreme Court decision. Amoena's arguments were considered well founded that (a) the Regulation contains a “manifest error” and was ultra vires the Commission’s powers and (b) the Regulation breaches the principle of sincere co-operation. ultra vires the Commission’s powers and (b) the Regulation breaches the principle of sincere co-operation.
Read full decision: AMOENA (UK) LTD
Amoena imports mastectomy bras ("MBs") marketed under the name “Carmen” into the UK.
In Amoena (UK) Ltd v HMRC  UKSC 41 the Supreme Court unanimously held that the appellant's MBs should be classified under Chapter 90 of the Combined Nomenclature of the European Union (“CN”) with tariff heading 9021 and CN case 9021 10 10.
Accordingly customs duty was not payable on the MBs. The judgment of the Supreme Court was delivered on 13 June 2016 and was based on the following findings of fact:
(1) Amoena's MBs are designed to be worn with artificial breasts by women who have undergone surgical removal of one or both breasts.
(2) Amoena's MBs are designed to be worn with an artificial breast form.
(3) Amoena's MBs are objectively differentiated in design from “ordinary” bras.
(4) The intended use of Amoena's MBs (ie to hold the artificial breast form) was apparent from the physical characteristics of the MB.
(5) Amoena's MBs, in conjunction with the artificial breast forms which they are designed to hold and support, lessen the psychological impact of having had a mastectomy.
(6) Furthermore, it was (and remains) common ground that the artificial breasts themselves are categorised “as artificial parts of the body” for the purposes of sub-heading 9021.
On 1 July 2017, Commission Implementing Regulation (EU) 2017/1167 ("CIR") was published in the EU Official Journal, and entered into force 20 days after publication. By the Annex to the CIR the MBs are required to be classified under Chapter 62 with tariff heading 6212 and CN Code 6212 10 90. The rate of duty on that Code is 6.5%.
On 1 August 2017 the Amoena imported a consignment of MBs. The import was entered with CN Code 6212 10 90 and as a result customs duty was payable on the MBs at a rate of 6.5%. Amoena then applied for a refund of import duties. HMRC refused the Amoena's application.
Amoena in requesting a referral to the CJEU argued as follows:
1. National courts (including tribunals such as the First-tier Tribunal) have no jurisdiction to declare that acts of EU institutions are invalid, for which proposition he cites Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost (“Frost”)  ECR 4199 at , and that challenges to the validity of EU acts can be made under art 267 TFEU (Frost at ).
2. While a referring court usually has a broad discretion whether to refer, that is not the case where the validity or EU legislation is impugned. For this proposition AMoena relied on Case C-344/04 R (oao International Air Transport Association) v Department of Transport  ECR I-403 at :
Amoena faced two challenges to the validity of the CIR which it submitted were reasonably arguable and well founded (or not unfounded):
(1) The CIR is manifestly wrong in its classification of the MBs under Chapter 62 of the CN, and is ultra vires the Commission’s powers.
(2) The decision to issue the CIR was reached in breach of the principle of sincere cooperation as set out in art 4(3) TFEU.
Amoena also submited that the Commission failed to accord full and proper respect to the Supreme Court’s judgment, and indeed sought to undermine it.
The Commissioners argued that the bar was not as low as Amoena suggested.
There was no manifest error in the classification made by the CIR.
but with somewhat less conviction, that the appellant’s point on sincere co-operation is arguable. If left to decide this issue on its merits I would be inclined to prefer HMRC’s arguments, but that is by no means to say that the appellant’s point is fanciful, and of course there would be much fuller argument in that event.
1. He agrees with tAmoena, a low threshold to surmount to show that an argument is well founded. This follows from Telefonica.
2. That Amoena's argument on manifest error is well founded and surmounts that threshold. In particular Goldstar and France, cases on the CN and CIRs, are powerful support for the view that it is clearly arguable that the Commission, in adopting the opinion of the CCC, or the CCC itself went beyond the limits of their role in interpreting the CN. It is certainly also arguable that they didn’t, as the Respondents have demonstrated. But it is not my task to decide who is right.
3. He also agreed that the appellant’s point on sincere co-operation is arguable.
4. Under art 267, second paragraph, he also considered it necessary that the CJEU gives a ruling on the question whether the CIR is a valid act of the Commission.
He therefore directed that the proceedings are stayed until after that ruling has been given.
Hammad Baig can assist with disputes in relation to classification and origin of a product.