EUROPEAN COMMISSIONDIRECTORATE-GENERAL TAXATION AND CUSTOMS UNIONCustoms Policy, Legislation, TariffHS Convention, combined nomenclature, tariff classification
Brussels, 21 March 2013taxud.a.4/AB/adb Ares(2013)456562
TAXUD/232903/2013-EN
Customs Code Committee Tariff and Statistical Nomenclature Section
(Agriculture/Chemistry Sector)
Summary Report of the 106th meeting of the Customs Code Committee held in Brussels from 6th to 8th March 2013
AGENDA
1. Approval of the agenda of the 106th meeting of the Customs Code Committee.
2. Adoption of the minutes of the 98th meeting of the Customs Code Committee.
3 Draft Commission Regulations and Explanatory Notes submitted to the Committee for an opinion under Article 9 of Regulation (EEC) No. 2658/87.
3.1 Draft Commission Implementing Decision concerning the validity of certain binding tariff information (BTI) issued by Austria ('Bittner Balsam'), TAXUD/1427699/2012.
3.2 Draft Commission Implementing Regulation concerning the tariff classification of 'cleansing wipes' (subheading 3304 99 00), TAXUD/1427711/2012.
3.3 Draft Commission Implementing Regulation concerning the tariff classification of protein concentrates used for animal feeding, TAXUD/1427682/2012.
3.4 Draft Commission Implementing Regulation concerning the tariff classification of a product called "Cat's claw", TAXUD/1527680/2012.
3.5 Draft Commission Implementing Regulation concerning the tariff classification of an herbal product ("Moxa"), TAXUD/1527703/2012.
3.6 Draft Commission Implementing Regulation concerning the tariff classification of a product consisting of calcium carbonate and starch, TAXUD/1667430/2012.
3.7 Draft Commission Implementing Regulation concerning the tariff classification of human laminin, TAXUD/1667431/2012.
3.8 Draft Commission Implementing Regulation concerning the tariff classification of miso, TAXUD/1739802/2012.
3.9 Draft Commission Implementing Regulation concerning the tariff classification of maize flour snacks, TAXUD/1739808/2012.
3.10 Draft Commission proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature (subheadings 2707 99 91 and 2707 99 99), TAXUD/010249/2013.
4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.
Items for finalisation:
4.1 Tariff classification of cat litter (composed of bentonite clay and of silicium dioxide respectively), TAXUD/1347180/2012-REV 1.
4.2 Tariff classification of 'Cigars, cheroots and cigarillos', TAXUD/1427705/2012-REV 1.
4.3 Tariff classification of green-lipped mussel powder, TAXUD/1667432/2012.
4.4 Discussion concerning the solvent used for measuring the viscosity of polyethylene terephtalate, TAXUD/1667433/2012 and TAXUD/1667433/2012-REV 1.
4.5 Possible amendment to heading 39.01 linear low-density polyethylene (LLDPE), TAXUD/567805/2012, TAXUD/567805/2012-REV 1, TAXUD/1120668/2012, TAXUD/1120668/2012-REV 1, TAXUD/1120668/2012-REV 2 and TAXUD/1120668/2012-REV 3.
Items for further discussion:
4.6 Tariff classification of fruit-vegetables preparations, TAXUD/871964/2012 and TAXUD/083882/2013.
4.7 Tariff classification of 'Shiazo Shisha Steam Stones', TAXUD/1050186/2012 and TAXUD/083877/2013.
4.8 Tariff classification of bromelain 500 mg - food supplement in tablets, TAXUD/1050206/2012 and TAXUD/083878/2013.
4.9 Tariff classification of gas obtained from biomass, TAXUD/069047/2013.
4.10 Tariff classification of pasteurised, salted, liquid hen egg yolk, TAXUD/178647/2013.
Items for first discussion in the Committee:
4.11 Application of Additional Notes 2 and 5 to Chapter 20 to concentrated fruit and vegetable juices, TAXUD/1182440/2012.
4.12 Tariff classification of 'tobacco refuse', TAXUD/1182470/2012.
4.13 Tariff classification of 'plant cell cultures', TAXUD/1427726/2012.
4.14 Tariff classification of a yogurt drink containing cereal flakes, TAXUD/010220/2013 and TAXUD/069051/2013.
4.15 Tariff classification of infant food, TAXUD/010254/2013.
4.16 Tariff classification of treated distillate aromatic extract (TDAE), TAXUD/010280/2013.
4.17 Tariff classification of salted and frozen cod fillets, TAXUD/010308/2013.
4.18 Application of customs duties as regards goods in assortments ("sets"), TAXUD/083872/2013.
3
4.19 Tariff classification of "food supplements" - proposal to amend the HS/HSEN, TAXUD/083868/2013.
4.20 Tariff classification of squids, TAXUD/178620/2013 and TAXUD/1745476/2012.
4.21 Tariff classification of lubricants, succinic acid and 1,4-butandiol, TAXUD/987102/2012 and TAXUD/178633/2013.
5. Any other business.
5.1 Results of the Project Group concerning the chemical chapters of HS/CN from 30th to 31st May 2012.
5.2 Results of the Project Group concerning the chemical chapters of HS/CN from 14th to 15th November 2012.
5.3 Results of the Project Group concerning the food chapters of HS/CN from 29th to 30th
January 2013.
5.4 Results of the Project Group concerning the chemical chapters of HS/CN from 7 th to 8th February 2013.
5.5 Results of the Project Group concerning the chemical chapters of HS/CN from 19th to 20th February 2013 (information).
5.6 Possible creation of new CN codes in subheading 3824 90.
5.7 Information concerning CIRCABC.
5.8 List of pending and solved cases (EXCEL-table) - files to be closed.
ANNEXES:
I Attendance list
II-XI Draft measures
4
1. Approval of the agenda of the 106th meeting of the Customs Code Committee.
All Member States were represented (see the attendance list in Annex I to these minutes).
The Chair added item 5.9 ("skin application against ticks and fleas in dogs") to the agenda.
The current agenda was then approved by the participants.
2. Adoption of the minutes of the 98th meeting of the Customs Code Committee.
As regards items 4.8 and 4.12 one Member State made the following statements:
Item 4.8 "Tariff classification of a concentrate for the production of anti-freezing fluid":
"During the discussion the delegation of this Member State mentioned that WCO examined the classification of similar goods named "Rozmarovac – concentrate" and according to WCO classification opinion this product is classified under heading 3820 by application the General Rule 3 c), it means more equivalent headings were considered and the goods was classified under the heading which occurs last in numerical order. In this context, the delegation of this Member State suggested to apply the General Rule 3 c) instead of 3 a)."
Item 4.12 "Tariff classification of bromelain 500 mg - food supplement in tablets":
"During discussion delegation of this Member State supported the opinion of another Member State which was in line with tariff classification mentioned in our BTI. It also pointed out that in spite of the ECJ judgment "Swiss Caps" and its broader interpretation for all food supplements in the form of capsules, a regulation concerning the tariff classification of a food supplement (colostrum) in the form of capsules under heading 1901 was adopted. In this case the General Rule 3 a) was applied; it means that the heading with the most specific description (1901) was preferred to heading with more general description (2106). In this context, the food supplement bromelain 500 mg in tablets should be classified under more specific heading 3507 by application the General Rule 3 a) and the note 1 g) to Chapter 21, which excludes prepared enzymes of heading 3507 from this Chapter."
The remaining items of the minutes were adopted as read.
3. Draft Commission Regulations and Explanatory Notes submitted to the Committee for an opinion under Article 9 of Regulation (EEC) No 2658/87.
3.1 Draft Commission Implementing Decision concerning the validity of certain binding tariff information (BTI) issued by Austria ('Bittner Balsam'), TAXUD/1427699/2012.
The Committee examined the validity of certain binding tariff information (BTI) issued by a Member State.
The Committee delivered a favourable opinion on the draft measure as set out in Annex II .
5
3.2 Draft Commission Implementing Regulation concerning the tariff classification of 'cleansing wipes' (subheading 3304 99 00), TAXUD/1427711/2012.
The Committee examined the tariff classification of 'cleansing wipes'.
The Committee delivered a favourable opinion on the draft measure as set out in Annex III .
3.3 Draft Commission Implementing Regulation concerning the tariff classification of protein concentrates used for animal feeding, TAXUD/1427682/2012.
The Committee examined the tariff classification of protein concentrates used for animal feeding.
The Committee delivered a favourable opinion on the draft measure as set out in Annex IV .
3.4 Draft Commission Implementing Regulation concerning the tariff classification of a product called "Cat's claw", TAXUD/1527680/2012.
The Committee examined the tariff classification of a product called "Cat's claw".
The Committee delivered a favourable opinion on the draft measure as set out in Annex V .
3.5 Draft Commission Implementing Regulation concerning the tariff classification of an herbal product ("Moxa"), TAXUD/1527703/2012.
The Committee examined the tariff classification of an herbal product ("Moxa").
The Committee delivered a favourable opinion on the draft measure as set out in Annex VI .
3.6 Draft Commission Implementing Regulation concerning the tariff classification of a product consisting of calcium carbonate and starch, TAXUD/1667430/2012.
The Committee examined the draft Commission Implementing Regulation concerning the tariff classification of a product consisting of calcium carbonate and starch.
The Committee delivered a favourable opinion on the draft measure as set out in Annex VII .
3.7 Draft Commission Implementing Regulation concerning the tariff classification of human laminin, TAXUD/1667431/2012.
The Committee examined the draft Commission Implementing Regulation concerning the tariff classification of human laminin.
The Committee delivered a favourable opinion on the draft measure as set out in Annex VIII .
3.8 Draft Commission Implementing Regulation concerning the tariff classification of miso, TAXUD/1739802/2012.
6
The Committee examined the tariff classification of miso.
The Committee delivered a favourable opinion on the draft measure as set out in Annex IX .
3.9 Draft Commission Implementing Regulation concerning the tariff classification of maize flour snacks, TAXUD/1739808/2012.
The Committee examined the tariff classification of maize flour snacks.
The Committee delivered no opinion on the draft measure as set out in Annex X .
3.10 Draft Commission proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature (subheadings 2707 99 91 and 2707 99 99), TAXUD/010249/2013.
The Committee examined the proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature concerning subheadings 2707 99 91 and 2707 99 99.
The Committee delivered a favourable opinion on the draft measure as set out in Annex XI .
4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.
Items for finalisation:
4.1 Tariff classification of cat litter (composed of bentonite clay and of silicium dioxide respectively), TAXUD/1347180/2012-REV 1.
The Committee examined the tariff classification of two different cat litters composed of bentonite clay and of silicium dioxide respectively.
First product based on bentonite clay:
One Member State said that it could be envisaged to classify this product in 3808 as disinfectant and that the 0.05% anti-bacterial content can be detected by liquid chromatography.
Another Member State said that it issued a BTI for a similar product and that it considers that pure bentonite should not be classified under heading 3824.
Another Member State suggested replacing the term "product" by the term "preparation" in the third paragraph of the reasons.
Second product based on silicium dioxide:
The description of the second product was rephrased in order to make the text clearer.
A round of the table indicated that a vast majority of the Member States represented favoured classification of both products under heading 3824, taking on board the latest revision of the proposal suggested at this meeting.
The Chair concluded by saying that the revised proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.
7
4.2 Tariff classification of 'Cigars, cheroots and cigarillos', TAXUD/1427705/2012-REV 1.
The Committee examined the revised Commission proposal for an amendment of the Combined Nomenclature Explanatory Notes (CNEN) to subheading 2402 10 00 "Cigars, cheroots and cigarillos, containing tobacco".
The Chair explained that the main objective of this amendment is to update the current definition in order to include products being advertised and sold as cigarettes, but taxed as cigarillos. Furthermore, the amendment would bring the customs definition more in line with the current excise definition. The Committee was also informed on a letter sent by a tobacco producers association regarding this subject.
One Member State mentioned that the amendment of the CNEN should be done taking into account the current text of the Excise Directive and not go beyond that objective. Any other proposal should be, in first place, discussed at the Excise Committee.
Another Member State suggested that the proposed wording "(but without any further layer partially covering the outer wrapper)" presented in item (a) should also be included in item (b) of the proposal in order to avoid possible future fraud problems.
A third Member State proposed to include a picture or a drawing in the CNEN in order to facilitate the identification of the products described under item (a) of the proposal.
A round of the table indicated that the majority of the Member States represented was in favour of the proposal and welcomed the suggestion by one Member State to include pictures/drawings/photos of the products concerned.
The Chair concluded by saying that the revised proposal will be subjected to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.
4.3 Tariff classification of green-lipped mussel powder, TAXUD/1667432/2012.
The Committee examined the classification of a product consisting of green-lipped mussel powder.
One Member State stated that it is of the view that the reference to GIR 3(a) can be deleted. Concerning the exclusion from heading 2309 a similar wording as in Regulation (EU) No. 1272/2011 was favoured.
A second Member State doubted that the product described in the draft regulation text can be considered sufficiently similar to that of the original submission. It requested a Project Group to be started on the concept "fit or unfit for human consumption".
Two Member States made reference to the fact that under item 3.3 protein concentrates used for animal feeding were considered as unsuitable for human consumption and classified under heading 2309.
The Chair replied that it would be for the border inspection veterinary service to judge whether or not a product is fit for human consumption. The setting-up of a Project Group for this purpose was not supported.
8
A fifth Member State mentioned that a paragraph referring to the exclusion from heading 2309 was not considered necessary taking into account Note 1 to Chapter 23.
A sixth Member State wondered if the product is the same as discussed at the 7 th
meeting of the Customs Code Committee held in June 2009.
The Chair said that the discussion at the time concerned the classification of a mussel powder inside heading 0307 (subheading 0307 39 or 0307 99) and referred to Annex 4 to the submission.
Following the discussion a round of the table indicated that the majority of the Member States represented preferred classification of the product at issue under heading 0307.
The Chair concluded by saying that a revised proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.
4.4 Discussion concerning the solvent used for measuring the viscosity of polyethylene terephtalate, TAXUD/1667433/2012 and TAXUD/1667433/2012-REV 1.
The Committee examined a draft proposal for an amendment of the Combined Nomenclature Explanatory Notes to CN code 3907 60 20 related to the solvent used for measuring the viscosity of poly(ethylene terephthalate).
One Member State preferred to indicate all the solvents allowed in ISO standard 1628-5 and was therefore opposed to the proposal. Another Member State disagreed with the proposal because it considers it necessary to have an inter-laboratory test in the framework of the GCL to determine the most appropriate solvent.
Two other Member States said that there is a necessity to choose one solvent among those indicated in the ISO standard 1628-5 in order to be able to work in a harmonized way between the different customs laboratories. The choice of dichloroacetic acid is justified because it gives good results and it is the less harmful solvent in the list of ISO standard 1628-5.
A round of the table indicated that a majority of Member States were in favour of the proposal (equivalent to 179 votes) but with a significant number of abstentions (equivalent to 88 votes) and some Member States disagreed with the proposal (equivalent to 66 votes).
The Chair concluded by saying that a specific discussion topic concerning this subject will be created in CIRCABC-Newsgroups where Member States are invited to give their opinion on this issue.
4.5 Possible amendment to heading 39.01 linear low-density polyethylene (LLDPE), TAXUD/567805/2012, TAXUD/567805/2012-REV 1, TAXUD/1120668/2012, TAXUD/1120668/2012-REV 1, TAXUD/1120668/2012-REV 2 and TAXUD/1120668/2012-REV 3.
The Committee examined a draft proposal concerning amendments of the HS, of the HS Explanatory Notes and of the CN related to ethylene polymers and in particular aiming at creating a new specific subheading for linear low-density polyethylene (LLDPE). This proposal is justified because according to the information given by the concerned polymer industry, LLDPE represents a very high volume of consumption in the world and in the EU (about 3 millions of tons annually in the
9
EU). Furthermore, LLDPE is produced with different technologies than those used for other ethylene polymers and has applications in specific markets which differ from those of other ethylene polymers.
Nine Member States warned that it will be difficult at the analytical level to distinguish LDPE from LLDPE. Moreover, they also consider that it will be difficult to verify that the ethylene weight is 75% or more and less than 95%, a condition mentioned in the new heading of LLDPE.
A round of the table indicated that a vast majority of the Member States represented were in favour of the above mentioned draft proposal concerning amendments of the HS and of the HS Explanatory Notes (which will result in subsequent amendments of the CN). Only one Member State abstained.
The Chair concluded by saying that the file will be transmitted to the HS sector of the Committee to be presented at a forthcoming meeting at WCO level.
Items for further discussion:
4.6 Tariff classification of fruit-vegetables preparations, TAXUD/871964/2012 and TAXUD/083882/2013.
The Committee examined the additional information delivered by the producer of 'smoothies'.
Two Member States made reference to the HS Explanatory Notes (heading 2009) and explained that in their opinion fruit pulp can be present in fruit juices of heading 2009 but not added to the juices. The products will lose the original character of fruit or vegetables juices and are to be classified as other non-alcoholic beverages under heading 2202.
Another Member State is of the opinion that the addition of fruit/vegetable purees is not changing the characteristics of a fruit/vegetable juice of heading 2009. The same Member State stated that when the products are not classified in chapter 20, there will be a clear need for a revision of the existing BTI's for similar products in Chapters 20 and 22.
A third Member State explained that when the balance of the different constituents of natural juice is clearly upset, the products should be classified in Chapter 22.
The Chair reminded the Committee to the definitions in the HS Explanatory Notes for fruit purées (heading 2007) and fruit pulp (heading 2008).
A round of the table indicated that a majority (equivalent to 219 votes) of the Member States represented preferred classification of the products under heading 2202, 4 Member States abstained (equivalent to 51 votes) and 7 Member States (equivalent to 63 votes) were in favour of heading 2009.
The Chair concluded by saying that a draft classification regulation will be prepared for discussion.
4.7 Tariff classification of 'Shiazo Shisha Steam Stones', TAXUD/1050186/2012 and TAXUD/083877/2013.
The Committee examined the tariff classification of a product called "Shiazo Shisha Steam Stones".
10
According to the information provided the composition of the product may vary. The product can be composed only of porous natural stone or it can consist of porous natural stones which are impregnated with glycerine and flavouring oils (for example, banana, strawberry, green apple). In both cases the product is then heated and the steam is released in a water pipe and inhaled.
One Member State mentioned that the additional information provided in document TAXUD/083877/2013 proves that the product has to be classified under heading 3824 as it is only heated (not burnt) and steam is released. Therefore, the product cannot be considered as a tobacco substitute and, consequently, heading 2403 is excluded.
Another Member State said that the product is used to be smoked in the same way as the products described under item 5 of the Combined Nomenclature Explanatory Notes to subheading 2403 99 90. Therefore, it has to be considered as a tobacco substitute and classified under heading 2403.
Two other Member States stated that this topic is also under discussion at the WCO. It was added that a decision in this Committee should wait until the file is decided at WCO level.
A round of the table showed that the majority of the Member States represented favoured classification of the product under heading 3824.
The Chair concluded by saying that the file is suspended for the time being until a decision at WCO level is taken.
4.8 Tariff classification of bromelain 500 mg - food supplement in tablets, TAXUD/1050206/2012 and TAXUD/083878/2013.
The Committee examined the tariff classification of a product called "bromelain" which is presented in tablets, put up for retail sale in plastic box containing 30 tablets and used as food supplement. Each tablet contains bromelain (500 mg), cellulose, calcium phosphate, silica and magnesium stearate.
The Chair informed the Committee that according to a study prepared by the "Université Libre de Bruxelles" the product cannot be considered as a medicament.
Two Member States mentioned that the product is an enzymatic preparation and according to Note 1 (g) to Chapter 21 should be classified under heading 3507.
Another Member State stated that this product is different from the products classified under heading 3507. In its view, the product should be classified under heading 2106 as "Food preparations not elsewhere classified or included".
A last Member State mentioned Commission Regulation (EEC) No 1422/90 of 23 May 1990, in which a product, containing papain (an enzyme) and used as a food supplement, was classified under heading 2106 as a food supplement. Therefore, in its opinion, the product under discussion should be classified under the same heading.
A round of the table showed that a slight majority of the Member States represented favoured classification of the product under heading 2106.
The Chair concluded by saying that, as the Committee is divided concerning the classification, internal consultations will take place and the Commission services will analyse the possibility to draft a Commission Implementing Regulation. The item will be discussed at a forthcoming Committee meeting.
11
4.9 Tariff classification of gas obtained from biomass, TAXUD/069047/2013 and TAXUD/069047/2013-REV 1.
The Committee examined the tariff classification of gas obtained from biomass and in particular a draft amendment of the Explanatory Notes to the Combined Nomenclature (CNEN) classifying these gases in 2711 19 00 (liquefied) or in 2711 29 00 (gaseous) and defining them.
Two Member States were opposed to the proposal because at the analytical level gas obtained from biomass is difficult to distinguish from natural gas. The analytical method based on the dosing of carbon 14 is very expensive. These Member States said that in practice the gas on the market results from a mixture of gas obtained from biomass with natural gas.
Two other Member States confirmed that there are difficulties in distinguishing those gases and the cost of the related carbon 14 analytical techniques, but were nevertheless in favour of the proposal.
A first round of the table indicated that a vast majority of the Member States represented were in favour of the draft amendment of the CNEN classifying these gases in 2711 19 00 or in 2711 29 00. Two Member States were against and one Member State abstained.
One Member State asked to mention the main component of the gas obtained from biomass in the draft CNEN definitions.
Another Member State asked to indicate in the draft CNEN definitions which are the components of the gas obtained from biomass which result from thermal decomposition.
A third Member State was of the opinion that the term "thermal decomposition" should be deleted from the draft CNEN definitions.
A second round of the table concerned the text of the amended CNEN which defines the gas obtained from biomass for which three options were proposed:
A text with a definition as in document TAXUD/069047/2013;
An improved and more precise text, proposed by the Chair, with a definition as in document TAXUD/069047/2013-REV 1 which takes into account the definition of the term "biomass" of Directive 2009/28/EC;
A text without any definition proposed by one Member States mentioning only "This subheading covers liquefied gas obtained from biomass" or "This subheading covers gas (in gaseous state) obtained from biomass".
This second round of the table indicated that a vast majority composed of 17 Member States represented were in favour of a text with a definition. Among them, 13 Member States were in favour of the "REV-1" improved definition and 4 Member States preferred the other definition. The text without definition was preferred by 5 Member States.
The Chair concluded by saying that a specific discussion topic concerning this subject will be created in CIRCABC-Newsgroups where all Members States are invited to give their contribution on this issue and in particular as regards the main components of the gas, the proposed deletion term "thermal decomposition" and in case this term is maintained which components result from thermal decomposition.
12
4.10 Tariff classification of pasteurised, salted, liquid hen egg yolk, TAXUD/178647/2013.
The Committee examined again the classification of pasteurised, salted, liquid hen egg yolk. Initially it was proposed to classify pasteurised, salted, liquid hen egg yolk containing 5 to 12% salt in Chapter 21 of the Combined Nomenclature ("Miscellaneous edible preparations") instead of Chapter 4 ("…; birds' eggs;…").
The Commission has re-assessed the issue and reached the conclusion that there are sufficient grounds to classify the product in question in Chapter 4 (in CN code 0408 19 81) and not in Chapter 21 (in CN code 2106 90 92).
The Commission explained that there were three main reasons to maintain salted egg yolks in Chapter 4 of the CN:
The characteristics of the product: the addition of salt to egg yolk is part of the preservation process. Approximately 10% salt are added to egg yolks before they are frozen in order to prevent an increase in viscosity and inhibit jellification so egg yolks can be blended with other ingredients. The addition of salt is part of the preservation process.
The status of the product: yolk with added salt (up to 11%) is a basic commodity and traded as such on the international market.
The use of the product: yolk with added salt is used for food but also for products not destined to human consumption (such as cosmetics).
Consequently, it seems not justified classifying the product in question outside Chapter 4. In addition, this would also have significant trade implications.
Following comments from Member States on the presence of salt in egg yolks, the Commission mentioned that fluid whole eggs, preserved by adding of salt, are classified under Chapter 4 with a CN code 0408 99 80 (see also the CNEN).
A round of the table indicated that the majority (16) of the Member States represented would classify the product under heading 2106, while a minority of 6 Member States were in favour of heading 0408. 5 Member States abstained. Several Member States stated that they did not have enough information on the salt content and its role in the preservation process and asked for additional information.
The Chair concluded by saying that the additional information will be provided via a CIRCABC-Newsgroup that will be started to share information with all Member States on this issue. A revised draft proposal will be prepared and discussed again at a forthcoming Committee meeting.
Items for first discussion in the Committee:
4.11 Application of Additional Notes 2 and 5 to Chapter 20 to concentrated fruit and vegetable juices, TAXUD/1182440/2012.
The Committee examined the information submitted by one Member State on the application of the Additional Notes 2 and 5 to Chapter 20. This Member State explained that for concentrated pineapple juices, with a Brix value of 65, of a value not exceeding € 30/100 kg, not containing added sugar, the application of these Additional Notes result in a classification under CN code 2009 49 91 with an added sugar content of over 30%. In addition, CN code 2009 49 99 (pineapple juice not containing added sugar) would stay empty. In their opinion the question that should be asked is whether Additional Notes 2 and 5 to Chapter 20 should be applied regardless of whether or not sugar has actually been added or not.
13
Another Member State stated that the Additional Notes 2 and 5 should always be applied because added and natural sugar cannot be separated in the products. As a result, with the current structure of heading 2009, there will be empty headings.
A third Member State mentioned that for the calculation of the sugar content HPLC should be applied because the BRIX method is "old fashioned".
The Chair made reference to the judgment of the Court of Justice of 26 April 1972 in case 92/71 ('Interfood'). There it is clearly stated that "… fruit, other than pineapples and grapes, referred to under heading 20.06 of the tariff, having a sugar content determined in accordance with Additional Note No 1 to Chapter 20 which exceeds 9 per cent by weight, is subject for the purpose of customs duties to the rate prescribed for fruit containing added sugar regardless of whether sugar has in fact been added". Consequently, the expression "added sugar" is actually to be understood as "calculated sugar". Even if the structure of the tariff has changed since that judgment, the principle remains unchanged and "added sugar" is just an indication of the cut-off point for the calculation of customs duties.
A round of the table indicated that a large majority of the Member States represented apply Additional Notes 2 and 5 to Chapter 20 for the calculation of the added sugar in the products as they are presented to customs at the time of importation.
The Chair concluded by saying that these Additional Notes should always be applied and that empty subheadings are possible for some subheadings under heading 2009.
4.12 Tariff classification of 'tobacco refuse', TAXUD/1182470/2012.
The Committee examined the tariff classification of tobacco refuse which is presented in bulk and capable of being smoked.
According to the Combined Nomenclature Explanatory Notes (CNEN) to subheading 2403 19 10 to 2403 19 90 only the tobacco refuse which is capable of being smoked and put up for retail sale is classified under subheadings 2403 19 10 and 2403 19 90. However, the submitting Member State considered that the tobacco refuse capable of being smoked but presented in bulk should be also classified under the abovementioned subheadings and not under subheading 2401 30 00. Therefore it was proposed an amendment to the CNEN to subheadings 2403 19 10 and 2403 19 90.
One Member State agreed with the proposal and in its opinion the tobacco refuse capable of being smoked and presented in bulk should be also classified under subheading 2403 19 90.
Another Member State proposed that the expression "put up for retail sale" presented in the current CNEN to subheadings 2403 19 10 and 2403 19 90 should be deleted instead of the amendment proposed by the submitting Member State.
A last Member State remarked that the amendment of the CNEN to subheadings 2403 19 10 and 2403 19 90 could have an impact in the CNEN to subheading 2401 30 00. Consequently, the impact of this measure should also be assessed in other CNEN.
A round of the table indicated that the majority of Member States represented abstained from giving an opinion on the issue.
The Chair concluded by saying that as the result of the round of the table was not conclusive, internal consultations will take place and the item will be discussed again at a forthcoming Committee meeting.
14
4.13 Tariff classification of 'plant cell cultures', TAXUD/1427726/2012.
The Committee examined the tariff classification of "plant cells cultures" and "extracts of plant cells cultures".
The Chair informed the Committee that this matter was discussed during the Project Group concerning the food chapters of HS/CN that took place on the 13th and 14th September 2012.
The question is whether "plant cells cultures" and "extracts of plant cells cultures" should be classified in the same CN codes for the plants (Chapter 12) and extracts of plants (Chapter 13), as the essential characteristics were the same, or under heading 3821, respectively in other CN codes, such as CN codes of Chapter 21 or Chapter 30. Furthermore, this question is even more important as divergent BTI's for the classification of "cells cultures" were found.
One Member State mentioned that the description given in the document is not enough for the classification of the products. Therefore, before giving its advice more information is required.
Two other Member States stated that the "plant cells cultures" and "extracts of plant cells cultures" should be classified in the same Chapters as the plants and the extracts of plants. This means that Chapters 12 and 13 are the correct Chapters.
A round of the table indicated that the majority of the Member States represented favoured the classification of "plant cells cultures" and "extracts of plant cells cultures" in Chapters 12 and 13.
The Chair concluded by saying that the Project Group will be informed of the view taken by the Committee and the item is considered as closed.
4.14 Tariff classification of a yoghurt drink containing cereal flakes, TAXUD/010220/2013 and TAXUD/069051/2013.
The Committee examined the classification of a yogurt drink containing cereal flakes. The question is whether the product should be classified under heading 0403 (as a liquid yoghurt) or under heading 2202 (as a beverage).
The Chair said that this product is in principle quite similar to the products described in Commission Regulation (EC) No 161/2007 of 15 February 2007. Taking into account the wording of heading 0403, cereals do not meet the criteria of the wording of heading 0403 as only the addition of 'fruit, nuts or cocoa' is covered by its scope. Cereals also cannot be regarded as 'flavouring'. Consequently, classification under heading 0403 is excluded and heading 2202 remains as only option.
The Commission has already drafted a proposal for a Commission Implementing Regulation (working document TAXUD/069051/2013), which is inspired by the wording used in the above mentioned regulation.
A round of the table indicated that a vast majority of the Member States represented favoured classification of the product under heading 2202.
The Chair concluded by saying that the proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.
15
4.15 Tariff classification of infant food, TAXUD/010254/2013.
The Committee did not have the time to examine the classification of infant food. The question is how to define the phrase "Such preparations may contain a small quantity of visible pieces of ingredients." in Note 3 to Chapter 21. The submitting Member State has a dispute with a third country which considers products that contain "too many" (i.e., more than 5% by weight, bigger than 5 x 5 mm) visible pieces of ingredients having retained the character of preparations of Chapter 20 and classifies them under subheading 2005 99 instead of subheading 2104 20 ("homogenised composite food preparations").
The submitting Member State said that it needs to know the opinion of the Committee and, if adequate, asked for bilateral contacts between the EU and the third country.
The Chair concluded by saying that, considering the time needed to discuss the issue and taking into account the historical documents from the HS on the creation of the subheading on "homogenised composite food preparations" in Chapter 21, the file will be discussed in detail at the next Committee meeting.
4.16 Tariff classification of treated distillate aromatic extract (TDAE), TAXUD/010280/2013.
The Committee examined the tariff classification of treated distillate aromatic extract (TDAE) which is used as plasticizer for non-vulcanised rubber compounds that constitute raw materials in the manufacture of tyres and others vulcanised rubber products. It is obtained from vacuum distillation residues of the refining of lubricants.
The Combined Nomenclature Explanatory Notes (CNEN) to subheadings 2713 90 10 and 2713 90 90 state that the aromatic extracts of these subheadings generally meet the following requirements:
“1. content of aromatic constituents exceeds 80% by weight by the method described in Annex A to the explanatory notes to this chapter;
2. density at 15 °C exceeds 0,950 g/cm 3; and
3. not more than 20 % by volume distils at 300 °C by the ASTM D 86-67 method."
The TDAE products meet only the requirements under points 2. and 3 because the value of its aromatic content has been measured at 74,2% and at 75%.
The submitting Member State is of the opinion that TDAE should be nevertheless classified under heading 2713 because it is stated in the CNEN that extracts of these subheadings generally meet the above-mentioned requirements. According to this Member State the interpretation of the term "generally" is to be interpreted in the sense that exceptions to these requirements are possible and allowed.
Another Member State disagreed with such an interpretation of the CNEN to subheadings 2713 90 10 and 2713 90 90 and is of the opinion that TDAE should be classified under heading 2707 because:
on one hand, TDAE does not meet the above-mentioned requirement as regards its aromatic content measured at 74,2 % and at 75 %, and
on the other hand, TDAE corresponds to the requirement under point 2. of the CNEN to subheadings 2707 99 91 and 2707 99 99, which mention explicitly that these subheadings cover "aromatic extracts not conforming to the requirements
16
prescribed for those products in the CNEN to subheadings 2713 90 10 and 2713 90 90".
A round of the table confirmed the previous results obtained at the Project Group meeting of 7th and 8th February 2013 and showed that a majority of the Member States represented would classify this product under heading 2707. Among the 20 Member States represented, 14 favoured heading 2707, 5 favoured heading 2713 and 1 abstained. However, 7 Member States were absent at the time of this round of the table.
The Chair concluded by saying that the absent Member States are invited to inform the Commission services of their opinion concerning this issue.
4.17 Tariff classification of salted and frozen cod fillets, TAXUD/010308/2013.
The Committee examined the classification of salted and frozen cod fillets. The submitting Member State wonders whether frozen cod fillets, having a salt content of 1.8-2.2% by weight, should be classified under heading 0304 as "frozen fish fillets" or under heading 0305 as "salted fish fillets". This Member State is facing an appeal as regards a BTI application and has noticed divergent classification practices of the product in question in its harbours.
The Chair said that the Commission will not establish a draft regulation as requested as there are in fact no diverging BTI but just a national appeal case related to a BTI in the submitting Member State. Furthermore, the Codex Alimentarius Standard for salted fish and dried salted fish of the Gadidae family of fishes (CODEX STAN 167 - 1989), which stipulates a salt content not less than 12% by weight, has to be respected. Consequently, the product as described in the submission is 'frozen fish fillets' of heading 0304 and no individual measure is necessary.
Several Member States remarked that the classification of salted and frozen fish fillets (especially cod) causes regularly problems and therefore the Commission should issue some guidance as regards the distinction of fish fillets of headings 0304 and 0305 respectively.
The Chair said that the creation of CNEN in heading 0305 is possible and has already been envisaged by the Commission and explained the difference between dried and salted fish of the Gadidae family (commonly known as “salt cod” or “clipfish”), dried, unsalted cod (commonly known as “stockfish”) and only slightly salted and then frozen cod (the product in question). The Chair concluded by saying that a draft amendment of the CNEN will be discussed at a forthcoming Committee meeting.
4.18 Application of customs duties as regards goods in assortments ("sets"), TAXUD/083872/2013.
The Committee examined the application of the customs duties to goods presented in assortments ("sets").
The Chair informed the Committee that DG TAXUD received several questions on this subject both from Member States and from other Commission services. The main questions are:
1- Should the customs duties in a "set" be applied to the product as a whole or only to the (part of the) product that gives the essential character?
17
2- How should the calculation be done concerning products being subject to the Common Agriculture Policy (CAP) in which an agricultural component (EA) has to be determined?
3- How should the calculation be done when the expression "average content" (see for instance Additional Note 1 to Chapter 18) is used in the CN? Should "average content" be considered as a 'simple average' or as a 'weighted average'?
4- In case of a "set" containing a product being subject to an "antidumping duty" which does not give the essential character, should the antidumping duty be applied to the "set"?
The Chair added that the aim of this discussion was to understand the practice in Member States and then, in case needed, to adopt measures which could be inserted in the Combined Nomenclature.
Two Member States were wondering whether the Agriculture/Chemistry sector was the correct sector of Committee to discuss the application of the customs duties. If this is not the case, the file should be transferred to the correct/more appropriate sector of the Committee.
Another Member State mentioned that the rules concerning the customs duties are defined in Part One, Section I, General Rules, item (B) and (C) of the Combined Nomenclature.
Two other Member States stated that in case of a set which contains a product subject to an antidumping duty which does not give the essential character, the antidumping duty cannot be applied to the set. Moreover, it was added that this discussion should be continued in CIRCABC-Newsgroups.
The Chair concluded by saying that a specific discussion topic concerning this subject will be created in CIRCABC-Newsgroups where Members States are invited to give their opinion on the issue. The file is considered as closed at Customs Code Committee (Agriculture/Chemistry sector) level.
4.19 Tariff classification of "food supplements" - proposal to amend the HS/HSEN, TAXUD/083868/2013.
The Committee examined a proposal to amend the HS/HSEN on the tariff classification of food supplements.
Two Member States mentioned that this was a good proposal to solve the tariff classification problems related to food supplements and thanked the Commission services for presenting that document.
Two other Member States stated that the classification of food supplements put up for retail sale in boxes of 2, 3 or 4 kilograms should be also considered in the proposal and not only the food supplements presented in measured doses. Therefore, the document should be amended to include these products.
The Chair explained that the aim of the proposal is only to include products presented in measured doses and used as food supplements. The abovementioned products are excluded from the scope of this document.
Another Member State said that in the proposal some Chapters are not mentioned although they are related to the food supplements question. Therefore an exclusion, for example in Chapter 19, should be created.
18
The Chair concluded by saying that as this is a complex proposal which requires time to be analysed, a specific discussion topic will be created in CIRCABC-Newsgroups in which Member States have the possibility to comment or propose amendments to the proposal. After the CIRCABC-Newsgroups discussion a final version of the proposal will be prepared and the item will be analysed again at a forthcoming Committee meeting.
4.20 Tariff classification of squids, TAXUD/178620/2013 and TAXUD/1745476/2012.
The Committee examined the tariff classification of squids. The Chair said that one Member State had asked end of 2012 about the classification of "Pota Europea" or "European flying squid (Todarodes sagittatus)" in the CN and asked for a possible amendment of the Nomenclature. This request was justified and the CN 2014 will be adapted accordingly as Ommastrephes sagittatus (cited presently in CN-codes 0307 49 51 and 0307 49 91) has to be re-named 'European flying squid' (Todarodes sagittatus) and moved from 0307 41 91, 0307 49 51, 0307 49 91 to 0307 91 00 (for live/fresh/chilled), 0307 99 17 (frozen) and 0307 99 80 (other).
The same Member State subsequently made a submission concerning the "Jumbo flying squid (Dosidicus gigas)" and the "Japanese flying squid (Todarodes pacificus)", asking for a clarification of the classification of these products as well. DG TAXUD in cooperation with DG MARE examined the case and the same principle was applied: also these products should be classified under subheadings 0307 91 00 to 0307 99 80 (instead of 0307 41 10 to 0307 49 99). In order to facilitate the procedure, the Commission proposed an amendment of the CNEN to subheadings 0307 91 00 to 0307 99 80 by adding the following line: "4. Jumbo flying squid (Dosidicus gigas)" and "Japanese flying squid (Todarodes pacificus)". This amendment can be done upon voting on the consolidated version of the CNEN in the CN sector of the Committee, provided the Agriculture/Chemical sector approves that proposal.
The Chair proceeded to a simplified round of the table and the Member States agreed to the proposal by consensus.
The Chair concluded by saying that the proposal will now be treated by the CN sector of the Committee and consequently the file is closed for this sector of the Committee.
4.21 Tariff classification of lubricants, succinic acid and 1,4-butandiol, TAXUD/987102/2012 and TAXUD/178633/2013.
The Committee examined the tariff classification of lubricants, succinic acid and 1,4-butandiol and in particular draft amendments of the CN and of the CNEN related to these products as set out in document TAXUD/178633/2013. The objective of these amendments is to facilitate statistical monitoring by creating specific CN codes for these products which have been elaborated with raw materials obtained from biomass. This monitoring enters in the framework of the Commission Communication COM(2012)60 "Innovating for Sustainable Growth: A Bio-economy for Europe". The bio-economy is defined as "a more innovative and low-emissions economy, reconciling demands for sustainable agriculture and fisheries, food security, and the sustainable use of renewable biological resources for industrial purposes, while ensuring biodiversity and environmental protection"
19
One Member State warned that 1,4-butandiol is a very toxic product even if it has been synthetized with raw materials obtained from biomass and expressed its concerns that such a product should be the object of the creation of a specific CN code. For information this product is known to be used as a drug besides its official industrial applications.
Five Member States (informed the Committee that their customs laboratories are not in a position to make the distinction between products obtained from biomass and the same products obtained from other types of raw materials because they do not have the equipment allowing such an analysis.
Two Member States said that the concerned analytical techniques are very costly. They are based on the determination of the isotopic proportion between carbon 14 and carbon 13 by using controlled combustion and samples with a high degree of purity are needed.
Two Member States informed that there is no import of 1,4-butandiol into the EU. Consequently, they considered that this product should not be included in the draft proposal.
For the other products (lubricants and succinic acid) one Member State suggested that EUROSTAT should be consulted to have its opinion on the relevance of this statistical monitoring which necessitates the use of the above-mentioned costly analytical processes.
As regards lubricants, it has to be noted that during the Project Group meeting of 7 th
and 8th February 2013 eight participants volunteered to carry out a test in their laboratories in order to assess the feasibility and the cost of the analysis. For this purpose the lubricant company represented at this meeting agreed to send samples to the concerned customs laboratories. The obtained results and opinions were scheduled to be uploaded on CIRCABC to be used as a basis of discussion at the present Committee meeting.
There was no contribution uploaded on CIRCABC because it seems that none of the eight participants have received any sample for this feasibility study.
A round of the table indicated that a vast majority of the Member States represented abstained related to this draft proposal. Among the 26 Member States represented, 18 abstained, 4 were against and only 4 were favourable.
The Chair concluded by saying that this draft proposal will not be adopted for the CN 2014 due to the high proportion of abstention and opposition.
5. Any other business.
5.1 Results of the Project Group concerning the chemical chapters of HS/CN from 30th to 31st May 2012.
The Committee endorsed the report and the Member States agreed on the findings.
5.2 Results of the Project Group concerning the chemical chapters of HS/CN from 14th to 15th November 2012.
The Committee endorsed the report and the Member States agreed on the findings.
20
5.3 Results of the Project Group concerning the food chapters of HS/CN from 29th to 30th January 2013.
The Committee endorsed the report and the Member States agreed on the findings.
5.4 Results of the Project Group concerning the chemical chapters of HS/CN from 7th to 8th February 2013.
The Committee endorsed the report and the Member States agreed on the findings.
5.5 Results of the Project Group concerning the chemical chapters of HS/CN from 19th to 20th February 2013 (information).
The Chair provided an oral report and said that the report will soon be distributed.
5.6 Possible creation of new CN codes in subheading 3824 90, TAXUD/178663/2013.
The Chair informed the Committee that this draft proposal has been established because there is a need to provide more TARIC codes possibilities for products of CN code 3824 90 97. This CN code allows 99 TARIC codes (from 3824 90 97 01 to 3824 90 97 99) and there are now nearly all of them attributed.
By a repartition of the current products of CN code 3824 90 97 into 7 new CN codes (from 3824 90 92 to 3824 90 98) there would be now 693 possible TARIC codes. Considering that about 99 TARIC codes are currently occupied by the existing actual products classified in CN code 3824 90 97, this would leave nearly 600 potential TARIC codes for new products.
In this draft proposal, 3 CN codes have been suppressed by merging their related products with other products due to the fact that their annual traded quantity and the corresponding values are now too low to justify having their own CN code.
One Member State pointed out that these changes in the CN codes may create problems for the chemical industry which might oppose the proposal. This Member State also draws the attention to the fact that about 25 TARIC codes are still available.
The Chair said that, in spite of the existence of these TARIC codes which are still available, it is not advisable to wait until they are all attributed. It is better to start the discussion of this draft proposal now because it is necessary to take into account the time needed for its adoption and entry into force.
Two Member States proposed to verify if the new proposed categories of the products of CN code 3824 90 97 are relevant. This concerns in particular the proposed category of 'natural products'.
Another Member State proposed to add a new category "other" at the end of the new subdivision of CN code 3824 90 97 (i.e. in 3824 90 99, considering the current draft proposal).
5.7 Information concerning CIRCABC.
A specialist of unit R.3 of DG TAXUD gave a presentation of practical features CIRCABC, stressing in particular the advantages of communicating information
21
between the Member States and the Commission via the function "Newsgroups" and replied afterwards to questions by the Member States experts.
Several Member States had specific remarks and suggestions of which the Commission took note. The Chair concluded by saying that all remarks have been noted and invited the Committee to continue asking for help by e-mail in case problems occur.
5.8 List of pending and solved cases (EXCEL-table) - files to be closed.
The Chair said that the file "processed-cheese preparation with low cheese content" is considered closed as no tangible end-results are in sight and even further investigation did not bring any new evidence to establish a draft measure.
As regards the file "coke for electrodes and other cokes" this file is also considered closed as the industry in its reply of 01/03/2013 had no objections to merging the two CN codes in question.
As regards the file "boxes of cereals containing toys" this file will be closed after the publication of the guidelines on "sets".
As regards the two files concerning "chicken meat" ("poultry meat with oil" and "Draft protocol for the visual examination of the presence of seasoning of poultry meat as stated in Additional Note 6 (a) to Chapter 2 of the CN") the Chair asked the Committee whether or not the Member States would like to continue the discussion of those. As not all Member States could reply instantly, the Chair announced that a CIRCABC-Newsgroup will be started to learn the opinion of all Member States on this issue.
One Member State wondered about the state of the file "sugar mixtures". The Chair said that internal discussions are on-going; the Committee will be informed in due time once those discussions are concluded.
Another Member State wondered about the progress of the file concerning the ethanol mixtures (in particular "E 85" and "ED 95"). The Chair said that additional information from the industry on "ED 95" has arrived already and that the information on "E 85" will be arriving soon. Once that information has been analysed, the Commission will draft legal measures which will be presented to the Committee as soon as possible.
No remarks were made as regards the remaining items on the list.
5.9 Skin application against ticks and fleas in dogs.
One Member State asked for adding the issue of a skin application against ticks and fleas in dogs to the agenda. It concerns a product very similar to the one classified in Regulation (EC) No 455/2007 where classification took place under heading 3808.
The importer of the product under discussion however is claiming that since the only active ingredient, pyriprole, unlike the active ingredients mentioned in Regulation (EC) No 455/2007, is in fact absorbed through the skin, and due to the fact that pyriprole is listed by the EMA, it should lead be classified as a medicament.
The asking Member State maintains its position that since the product in question, like the one in Regulation (EC) No 455/2007, is used to control infestations, is also applied externally to the skin, and does not have therapeutic effects, classification under heading 3005 is not possible.
22
The Chair said that the question is whether Regulation (EC) No 455/2007 does in fact cover this particular product in view of its particular characteristics.
The Member States represented agreed by consensus that they would classify the product under heading 3808. The concerned Member State said that this will allow now issuing the BTI and thanked the Committee for its swiftly delivered opinion.
Member States Authorities or bodies / represented byAustria Bundesministerium für FinanzenBelgium Federale Overheidsdienst Financiën / LaboratoryBulgaria Customs Directorate, Customs LaboratoryCyprus Ministry of Finances / Customs and Excise DepartmentCzech Republic General Directorate of Customs / LaboratoryDenmark Told- og Skattestyrelsen / Force TechnologyEstonia Tax and Customs BoardFinland Finnish National Board of Customs / Finnish Customs
LaboratoryFrance Direction Générale des Douanes / Laboratoire des DouanesGermany Bundesministerium der FinanzenGreece Permanent Representation [for items 3.1 to 3.10]Hungary Customs DirectorateIreland State Laboratory / Revenue CommissionersItaly Agenzia delle DoganeLatvia National Customs Board / Customs LaboratoryLithuania Customs Department / Customs LaboratoryLuxembourg [represented by Belgium]Malta Customs DepartmentNetherlands Ministerie van Financiën / Customs LaboratoryPoland Ministry of FinancePortugal ATA (Autoridade Tributária e Aduaneira)Romania National Customs AuthoritySpain Laboratorio de Aduanas / AEAT Gestion AduaneraSlovenia General Customs Directorate / Customs LaboratorySlovakia Customs Directorate / Department of Customs TariffsSweden Board of CustomsUnited Kingdom HM Revenue and Customs / Campden BRI & Group
