Following the UK Supreme Court’s 2016 judgment that Amoena’s mastectomy bras should be classified as orthopaedic appliances (duty free) rather than clothing (duty at 6.5%), the Customs Code Committee met and decided (with only the UK dissenting) that the Supreme Court had got it wrong.

The CJEU has now confirmed the validity of the resulting Commission Implementing Regulation (CIR 2017/1167). The CJEU disagreed with the Supreme Court’s finding that the bras were accessories to the breast forms that they held in place, as they did not improve their intrinsic function. Furthermore, the CIR did not breach the principle of sincere co-operation. The Committee could not be bound by a judgment of a domestic court, and it had sought and taken into account the UK’s views before issuing the CIR.