EUROPEAN COMMISSION DIRECTORATE-GENERAL TAXATION AND CUSTOMS UNION Customs Policy, Legislation, Tariff HS Convention, combined nomenclature, tariff classification Brussels, 21 st March 2011 /home/website/convert/temp/convert_html/ 5e7406e6dd00dc67084ff3f4/document.doc taxud.a.4(2011)338652 TAXUD/202299/2011-EN CUSTOMS CODE COMMITTEE TARIFF AND STATISTICAL NOMENCLATURE SECTION Summary Report of the 54 th meeting of the Customs Code Committee (Agriculture/Chemical sector) http://ec.europa.eu/transparency/regcomitology/index_en.htm
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EUROPEAN COMMISSIONDIRECTORATE-GENERAL TAXATION AND CUSTOMS UNIONCustoms Policy, Legislation, TariffHS Convention, combined nomenclature, tariff classification
Brussels, 21st March 2011/tt/file_convert/5e7406e6dd00dc67084ff3f4/document.doctaxud.a.4(2011)338652
TAXUD/202299/2011-EN
CUSTOMS CODE COMMITTEE
TARIFF AND STATISTICAL NOMENCLATURE SECTION
Summary Report of the 54th meeting of the Customs Code Committee
EUROPEAN COMMISSIONDIRECTORATE-GENERAL TAXATION AND CUSTOMS UNIONCustoms Policy, Legislation, TariffHS Convention, combined nomenclature, tariff classification
Brussels, 21st March, 2011
TAXUD/202299/2011-EN
Customs Code Committee Tariff and Statistical Nomenclature Section
(Agriculture/Chemical Sector)
Summary Report of the 54th meeting of the Customs Code Committee held in Brussels from 7th to 9th March 2011
AGENDA
1. Approval of the agenda of the 54th meeting of the Customs Code Committee.
2. Adoption of the minutes of the 49th 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 Regulation amending Regulation (EC) No 900/2008 laying down the methods of analysis and other technical provisions necessary for the application of the arrangements for imports of certain goods resulting from the processing of agricultural products (proposal DG ENTR).
3.2 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (partial update of the references to analytical methods in Chapter 27 of the Combined Nomenclature), TAXUD/235728/2009-REV 4.
3.3 Draft Commission Regulation for the tariff classification of stuffed vine leaves, TAXUD/736343/2010.
3.4 Draft Commission Regulation for the tariff classification of beverage mixes for making cocktails, TAXUD/736437/2010.
4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.
4.1 Tariff classification of a Vermouth-beverage, TAXUD/361874/2010 and TAXUD/033376/2011 ["statement"].
4.2 Tariff classification of a food additive (soy bean fibres), TAXUD/005900/2011 ["statement"].
4.3 Tariff classification of plastic boxes, TAXUD/075126/2011 ["statement"].
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4.4 Tariff classification of a mixture of ethanol and polypropylene glycol, TAXUD/0873/2008 and TAXUD/145277/2011 ["statement"].
4.5 Draft Commission Regulation for the tariff classification of aromatising and appetising substances used in animal feeding industry, TAXUD/857131/2010.
4.6 Draft Commission Regulation for the tariff classification fish skewers, TAXUD/312443/2010, TAXUD/736433/2010 and TAXUD/980018/2010.
4.7 Draft Commission Regulation for the tariff classification of tablets containing vitamins, TAXUD/510348/2010 and TAXUD/878089/2010-REV 1.
4.8 Tariff classification of cleansing wipes, TAXUD/0855/2008-REV 1, TAXUD/0610/2009 and TAXUD/586941/2010.
4.9 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (frozen vegetables and fruits), TAXUD/736436/2010.
4.10 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (sweet peppers), TAXUD/308670/2010 and TAXUD/033375/2011.
4.11 Draft Commission Regulation for the tariff classification of caramelised milk products, TAXUD/202246/2010, TAXUD/980014/2010 and TAXUD/005895/2011.
4.12 Draft Commission Regulation concerning the tariff classification of products containing colostrum, TAXUD/033378/2011.
4.13 Draft Commission Regulation for the tariff classification of plastic drinking bottles, TAXUD/510361/2010-REV 1.
4.14 Draft Commission Regulation for the tariff classification of a styrene butadiene copolymer, TAXUD/137371/2011.
4.15 Draft Commission Regulation for the tariff classification of vaginal lubricant gels, TAXUD/137372/2011.
4.16 Draft Commission Regulation for the tariff classification of cartridges for electronic cigarettes, TAXUD/053389/2010, TAXUD/075127/2011.
4.17 Draft Commission Regulation concerning the tariff classification of a product used for staining of leukocytes in blood samples, TAXUD/1064672/2010.
4.18 Draft Commission Regulation concerning the tariff classification of prepared enzymes, TAXUD/1057217/2010.
4.19 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (Additional Note 1 to Chapter 30), TAXUD/075128/2011.
4.20 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (tobacco for water pipe), TAXUD/145264/2011.
4.21 Tariff classification of an aqueous solution of sodium chloride, TAXUD/586945/2010 and, WCO document NC1248E1b/E/4.
4.22 Tariff classification of egg yolk powder with additives, TAXUD/857103/2010.
4.23 Tariff classification of concentrated guava or mango purées, TAXUD/878093/2010.
5. Any other business.
5.1 Results of the Project Group concerning the chemical chapters of HS/CN of 1st
December 2010.
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5.2 Results of the Project Group concerning the chemical chapters of HS/CN from 7 th to 8th December 2010.
5.3 Information on the tariff classification of shelled pumpkin seeds.
5.4 Information on the tariff classification of flavoured seaweed.
5.5 Information on the file concerning food supplements (joined cases C-410/08 to C-412/08 "Swiss Caps" - invalidation of BTI).
5.6 Information on the tariff classification of "Sugar mixtures".
5.7 Information on the tariff classification of ethyl alcohol based mixtures and in particular on a project concerning the creation of new CN codes in Chapters 22 and 38.
5.8 List of pending and solved cases (EXCEL-table) - files to be closed.
ANNEXES:
I Participants attendance list
II-V Draft measures
VI Statement
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1. Approval of the agenda of the 54th meeting of the Customs Code Committee.
All Member States, except one, were represented, another one was present only for items 1, 2, 3.1 to 3.4, 5.1 and 5.2 (see the attendance list in the Annex I to these minutes).
One item has been added: item 5.8: Information on the judgment of the Court in case C-11/10.
One Member State wondered why the file concerning "Quinoa" (two draft regulations) has not been put on the agenda as announced by the Commission at the previous meeting of the Committee in December 2010. The Chair stated that the consultations with the other services have given a positive result as regards the classification aspect. However, one service could not agree to the two drafts due to the possible economic consequences of the measures.
The representative of DG TRADE stated that the proposed clarification of the classification of quinoa would have as a consequence the erosion of preferences that countries in the GSP+ list currently benefit from, in particular Bolivia. Around 95% of total EU exports of quinoa come from Bolivia and the EU delegation there informed both DG TRADE and DG TAXUD that quinoa (in particular processed quinoa) is one of the top agricultural exports of Bolivia to the EU.
The asking Member State underlined the necessity finding a timely solution as it is facing problems at national level due to pending national court cases.
The representative of DG TRADE added that in the medium term there will be a revision of the GSP scheme, to be adopted by the College on 4 th May 2011 and voted through co-decision afterwards, which will enter into force on 1st January 2014.
The Chair concluded that the Commission services are fully aware of the situation and are still trying to reach an agreement and the Committee will be informed once new developments are taking place.
The current agenda was then approved by the participants.
2. Adoption of the minutes of the 49th meeting of the Customs Code Committee.
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 Regulation amending Regulation (EC) No 900/2008 laying down the methods of analysis and other technical provisions necessary for the application of the arrangements for imports of certain goods resulting from the processing of agricultural products (proposal DG ENTR).
The Committee examined the draft Commission Regulation amending Regulation (EC) No 900/2008 laying down the methods of analysis and other technical provisions necessary for the application of the arrangements for imports of certain goods resulting from the processing of agricultural products (document presented by DG ENTR).
The Commission explained that the aim of the proposal is to make clear that the methods of analysis provided for in Regulation No 900/2008 should be used for both
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preferential imports and non preferential imports; this to eliminate possible misinterpretations of the existing text in the sense that the Regulation can only be applied in the context of preferential imports. At the same time, the proposal adapts the existing text of Regulation No 900/2008 in line with recent changes to CN codes.
The Committee delivered a favourable opinion on the draft measure as set out in Annex II .
3.2 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (partial update of the references to analytical methods in Chapter 27 of the Combined Nomenclature), TAXUD/235728/2009-REV 4.
The Committee examined the draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature concerning the partial update of the references to analytical methods in Chapter 27 of the Combined Nomenclature.
The Committee delivered a favourable opinion on the draft measure as set out in Annex III .
3.3 Draft Commission Regulation for the tariff classification of stuffed vine leaves, TAXUD/736343/2010.
The Committee examined the draft Commission Regulation for the tariff classification of stuffed vine leaves.
The Committee delivered a favourable opinion on the draft measure as set out in Annex IV .
3.4 Draft Commission Regulation for the tariff classification of beverage mixes for making cocktails, TAXUD/736437/2010.
The Committee examined the draft Commission Regulation for the tariff classification of beverage mixes for making cocktails.
The Committee delivered no opinion on the draft measure as set out in Annex V.
4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.
4.1 Tariff classification of a Vermouth-beverage, TAXUD/361874/2010 and TAXUD/033376/2011 ["statement"].
The Committee examined a proposal for a classification statement on a Vermouth-beverage.
The Member States could not agree on the proposed text due of lacking information on the exact composition of the product. A round of table showed that a relative (not qualified) majority of Member States would classify the product in heading 2205 and preferred a regulation to be established.
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The Chair concluded by saying that a classification regulation will be established as soon as more detailed information on the product is made available by the submitting Member State.
4.2 Tariff classification of a food additive (soy bean fibres), TAXUD/005900/2011 ["statement"].
The Committee examined a proposal for a classification statement on a food additive containing soy bean fibres.
One Member State was of the opinion that the product should be classified in heading 1901 by the application of Note 2 (b) to Chapter 19 and requested for a classification regulation. Two other Member States (proposed changes to the reasons for the classification under heading 2304. A third Member State was of the opinion that information on the composition and the use of the product is missing from the proposed classification statement and this Member State favoured classification of the product under heading 2106.
A round of the table showed that no qualified majority could be reached for the proposed classification statement.
The Chair concluded by saying that a draft classification regulation (heading 2304) will be prepared based on the proposal received from the one Member State.
4.3 Tariff classification of plastic boxes, TAXUD/075126/2011 ["statement"].
The Committee examined a proposal for a classification statement on plastic boxes.
One Member State mentioned that in its view the classification statement should not be issued as there are no divergent BTI issued and also because it has no legal value.
The Member States present except one who abstained, agreed following some textual/editorial amendments (especially replacing the term "boxes" by "containers"), on the statement as set out in Annex VI to these minutes.
4.4 Tariff classification of a mixture of ethanol and polypropylene glycol, TAXUD/0873/2008 and TAXUD/145277/2011 ["statement"].
The Committee examined a proposal for a classification statement on a mixture of 90% ethanol and 10% polypropylene glycol on the basis of document TAXUD/145277/2011 which was communicated to the Committee in paper version the first day of this Committee meeting.
The Member State having submitted this file signalled that the need of a statement is justified by the fact that a BTI of another Member State classifies such products in heading 3814.
Another Member State drew the attention to the fact that the purpose of Regulation (EC) No 3199/93 is not to classify products but to determine which specific types of alcohol bases mixtures will be exempted from excise duty. Consequently, this Member State considered that this Regulation should not be invoked to justify a tariff classification.
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Another Member State reminded that a discussion in the same Committee on a similar product, considered as insufficiently denatured, has already taken place in 1998 and 1999. The classification of a mixture of 80% ethanol and 20% gasoline was examined and a national Court in this Member State confirmed that Regulation (EC) No 3199/93 can not be invoked for its tariff classification. This Member State stressed that, already in 1999, the Committee was not able to reach an agreement on the tariff classification of this mixture of 80% ethanol and 20 % gasoline and that finally these debates lead to the classification Regulation (EC) No 142/2002 (concerning in particular the product named "Mosstanol"). For all these reasons this Member State urges the Committee to adopt the present statement on this mixture of 90% ethanol and 10% polypropylene glycol because its adoption will constitute a step toward a solution on the classification of ethyl alcohol based mixtures in general.
The Committee agreed on mentioning that the mixture has an alcoholic strength by volume of 86% vol. and that it can be either used for human consumption or general purposes.
A round of the table showed that the Member States present could not agree on the proposed statement:
- 18 Member States agreed with the classification in CN code 2207 10 00 and with the text of the statement as modified during the present Committee meeting;
- 7 Member States abstained because they needed to consult their administration as they had not received the text in advance. Some of these Member States suggested adding in the text more information to justify that the 10% of propylene glycol are not modifying the essential character of the mixture which is classified as an undenatured ethyl alcohol.
4.5 Draft Commission Regulation for the tariff classification of aromatising and appetising substances used in animal feeding industry, TAXUD/857131/2010.
The Committee examined the draft classification regulation presented by the Commission.
Several Member States had comments on the description of the products and the reasons for the classification under heading 3302. One Member State was of the opinion that the substance capsicum oleoresin is used as a colorant (European list of colorants number E 160 c). Another Member State preferred the term "microcapsules" in the description of the products and a third Member State asked to add GIR 3 (a) in the reasons of the regulation.
A round of the table indicated that a large majority of the Member States present favoured the classification of the flavouring preparations under CN code 3302 90 90 (other than food and drink industries).
The Chair concluded by saying that the draft proposal will be revised and updated for further examination by the Committee.
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4.6 Draft Commission Regulation for the tariff classification fish skewers, TAXUD/312443/2010, TAXUD/736433/2010 and TAXUD/980018/2010.
The Committee examined the draft Commission Regulation for the tariff classification fish skewers which has been established as in the previous meeting a draft statement on the same subject was not accepted.
In order to classify the product correctly, the reference to the species of the fish actually used has been added to its description. The expression "Note 2 to Chapter 16" has been added to the reasons. The mentioning of the HS Explanatory Notes, as regards the paragraph to be cited concerning the General part of Chapter 3, will be verified.
The Chair concluded by saying that indeed the addition of vegetables goes beyond goods of Chapter 3; the wooden stick is only a means of presentation but not of preparation. Consequently, fish skewers without the addition of vegetables remain classified in Chapter 3 while those with addition of vegetables (or other food) are goods of Chapter 16. According to the HS Explanatory Notes, only "other fish meat … packed with a few bay leaves" remains in heading 0304.
4.7 Draft Commission Regulation for the tariff classification of tablets containing vitamins, TAXUD/510348/2010 and TAXUD/878089/2010-REV 1.
The Committee examined two optional draft regulations concerning the tariff classification of tablets containing vitamins. The submitting Member State provided a sample which was circulated in the meeting room.
Following an introduction given by the Chair, one Member State was of the opinion that the product should be classified under heading 2106 due to the high vitamin content and the indicated daily dose.
Another Member State expressed its view that not only the sugar content but also the vitamin content should be taken into account. It preferred a classification under heading 2106 due to the amount of contained essential vitamins. Furthermore it informed the Committee that at the World Customs Organization (WCO) the classification of a product consisting mainly of 92% by weight of sugar and 6% by weight of black currant powder is currently under discussion.
A third Member State drew the attention of the Committee to ginseng tablets with a content of 47% by weight of sucrose which are classified under heading 1704 according to an opinion of the WCO.
A fourth Member State stated that at first sight taking into account the pictures, colours and sugar content of the product it would slightly tend to a classification under heading 1704 which also seemed to be the more specific heading. On the other hand, the container of the product would be rather indicative for a food supplement. Its question concerning a possible application of the "Swiss Caps" judgment of the Court of Justice of the European Union (joined cases C-410/08 to C-412/08) could not be resolved during the discussion.
A fifth Member State had a preference for a classification under heading 1704 since it considered it to be the more specific heading. It pointed out that cough drops containing sugar and having medicinal properties are classified according to an opinion of the WCO under heading 1704.
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A sixth Member State wondered about a recommended daily dose for sugar confectionery intended to be consumed by children. Due to the high number of contained vitamins it preferred a classification under heading 2106.
Following the discussions on the two optional classification proposals (classification under heading 1704 or 2106) a round of the table indicated that a large majority of the Member States present favoured the classification of the product at issue as a food preparation of heading 2106.
One Member State asked for clarification concerning the term "prevention" in the description of the product. The submitting Member State agreed to contact the company concerned on this matter and subsequently inform the Commission about the outcome.
The request of a seventh Member State concerning the replacement of the term "food preparation" by the term "food supplement" in the reasons column was not supported with reference to the wording of heading 2106.
The Chair concluded by saying that after some editorial amendments and upon reception of the pending information the draft proposal will be subject to an inter-service consultation with a view of presenting it for vote at a forthcoming Committee meeting.
4.8 Tariff classification of cleansing wipes, TAXUD/0855/2008-REV 1, TAXUD/0610/2009 and TAXUD/586941/2010.
The Committee examined the tariff classification of cleansing wipes, designed to remove make-up, tone and purify normal and combination skin. The wipes are made of nonwovens of an approximate size of 15 x 20 cm put up in a plastic bag and are impregnated with different products (cosmetics, perfume, soap, etc.).
Depending on the products used to impregnate the wipes, the tariff classification will vary and therefore several headings merit consideration: 3304, 3307 and 3401. In order to find a global solution the Commission services prepared three draft proposals: one amendment of the Combined Nomenclature Explanatory Notes to heading 3304 and two classification regulations to headings 3307 and 3401.
One Member State mentioned that the English and the French texts of the draft proposal to amend the CNEN to heading 3304 and Note 4 to Chapter 33 are not the same. In its view the scope of the English word "cosmetics" is different from the French word "fard". Therefore before continuing the discussion the two versions should be aligned.
Another Member State stated that in the draft proposal to amend the CNEN to heading 3304 there is a contradiction between the first and the second phrase. If the proposal would be accepted as it is written it would lead to an "empty" heading (3304) because the products that are actually traded would be classified in the other headings (3307 and 3401). Two other Member States agreed with the previous view.
The Chair explained that, in its view, the proposal to amend the CNEN to heading 3304 will not lead to an "empty" heading as the wipes impregnated with products other than perfume, cosmetics, soap or detergent will continue to be classified under heading 3304 (for example, wipes impregnated with water, soya oil and almond oil).
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Concerning the draft classification regulation for heading 3307, one Member State proposed to amend the proposal as the product description does not need to include the exhaustive list of components.
The Chair concluded by saying that before continuing the discussion the scope of the terms "perfume" and "fard" in the EN and FR versions should be clarified. Moreover, in order progress faster, and concerning the different proposed texts, Member States were invited to send their comments in order to facilitate the preparation of a revised version.
4.9 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (frozen vegetables and fruits), TAXUD/736436/2010.
The Committee examined a proposal for an amendment of the Explanatory Notes to the Combined Nomenclature dealing with frozen vegetables and fruits.
A round of the table showed that all Member States present agreed with the proposal that makes reference to two judgments of the Court of Justice of the European Union. The Chair concluded by saying that the draft proposal will be put for vote at a forthcoming Committee meeting.
4.10 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (sweet peppers), TAXUD/308670/2010 and TAXUD/033375/2011.
The Committee examined a proposal for an amendment of the Explanatory Notes to the Combined Nomenclature concerning the present definition of sweet peppers in the CN.
The submitting Member State stated that the issue concerns mainly an economical problem on its internal market but nevertheless the definition of sweet peppers in CN code 0904 20 10 needs to be clarified and applied uniformly throughout the EU. Some textual/editorial amendments were made as regards the different colours of sweet peppers.
A round of the table showed that all Member States present agreed with the proposal. The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting.
4.11 Draft Commission Regulation for the tariff classification of caramelised milk products, TAXUD/202246/2010, TAXUD/980014/2010 and TAXUD/005895/2011.
The Committee examined the draft Commission Regulation for the tariff classification of caramelised milk products.
The main question concerned whether the caramelisation of the sugar and the lactose content of the skimmed milk powder excludes the product from Chapter 4 and leads to classification in Chapter 19.
The Member State that submitted the question has issued a BTI for a specific caramelised milk powder in heading 0404. The heat treatment leads to caramelisation through a Maillard reaction between the proteins (which are denatured as a result) and the lactose. Given that the characteristics of the milk
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powder and the whey powder do not correspond to those of product 2 listed in Regulation (EEC) No 2291/93, classification under heading 1901 could be envisaged.
A round of the table showed that only a slight majority of the Member States present could agree with the proposal classifying the product under discussion in heading 1901, provided product 2 is removed from the above mentioned regulation.
The question of whether Regulation (EEC) No 2291/93, with regard to product 2 (classifying a similar product, having undergone a caramelisation process, in heading 0404), should or should not be repealed could not be resolved during the discussions. The Chair stated that the Commission does not believe that the two products are identical and thus the above mentioned regulation should be maintained.
The Chair concluded by saying that the Commission will reflect on the issue and present its findings to the Committee at a forthcoming meeting.
4.12 Draft Commission Regulation concerning the tariff classification of products containing colostrum, TAXUD/033378/2011.
The Committee examined a draft regulation concerning the tariff classification of products containing colostrum.
Following an introduction given by the Chair one Member State requested information on the difference between the products at issue and the ones ruled upon by the Court of Justice of the European Union in case C-259/00 of 7th March 2002 ("Biochem").
The submitting Member State replied that apart from the composition the products at hand are intended for human consumption whereas the products of the above-mentioned Court case were intended to be administered to newborn animals.
Following the discussion a table round indicated that all Member States present favoured the classification of the products at issue as whey and as a product containing natural milk constituents, respectively, of heading 0404.
The Chair concluded by saying that after some editorial amendments the draft proposal will be subject to an inter-service consultation with a view of presenting it for vote at a forthcoming Committee meeting.
4.13 Draft Commission Regulation for the tariff classification of plastic drinking bottles, TAXUD/510361/2010-REV 1.
The Committee examined the draft Commission Regulation for the tariff classification of plastic drinking bottles used for sport.
Several Member States were against the proposal as in their view the product should be classified under heading 3924 instead of heading 3923, following the WCO Classification Opinion 3924.90/1.
One Member State requested to add an image of product to the classification regulation in order to have a better perception of the product under discussion.
The Chair stated that the inclusion of an image is depending on certain rules concerning the recognisability of the product's or producer's name and has therefore to be analysed before an eventual reproduction of the image in the Official Journal.
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A round of the table showed that a slight majority of the Member States present could agree with the proposal classifying the product under heading 3923.
The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting and the inclusion of an image will be analysed.
4.14 Draft Commission Regulation for the tariff classification of a styrene butadiene copolymer, TAXUD/137371/2011.
The Committee examined the draft Commission Regulation for the tariff classification of a styrene butadiene copolymer.
Although this styrene butadiene copolymer contains styrene butadiene rubber (SBR) which is an elastomer, the mixing of this SBR with a high styrene content resin leads to a rather rigid copolymer in primary form. This rigidity is explained notably by the predominance of styrene in the mixture (65% by weight or more). Consequently, the Member State that submitted this file asked to delete the term "displays elastomeric properties" in the third column of the annex of the draft regulation.
After some other minor textual/editorial amendments, a round of the table showed that all the Member States present were in favour of the draft Commission Regulation.
The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting.
4.15 Draft Commission Regulation for the tariff classification of vaginal lubricant gels, TAXUD/137372/2011.
The Committee examined the draft Commission Regulation for the tariff classification of vaginal lubricant gels.
One Member State asked to include the mention of note 3 to Chapter 33 in the third column.
A round of the table showed that:
– A vast majority of the Member States present (19 Member States) were in favour of the draft Commission Regulation classifying the product in heading 3307;
– Five Member States were against: three Member States preferred classification in heading 3304 and two Member States preferred classification in heading 3824;
– One Member State abstained.
The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting.
4.16 Draft Commission Regulation for the tariff classification of cartridges for electronic cigarettes, TAXUD/053389/2010, TAXUD/075127/2011.
The Committee examined the draft Commission Regulation for the tariff classification of cartridges for electronic cigarettes.
The Committee agreed on the following amendments of the draft proposal:
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– One Member State proposed to mention in the product description "flavour of tobacco" instead of only "tobacco".
– Another Member State asked to give some precision concerning the form of the cartridge and its constituting material. For this purpose it was added in the product description that the product is made of plastic and that it has a cylindrical form.
– The same Member State also asked to confirm whether or not liquid coming from the cartridge can be swallowed by the user. For this purpose it was added in the product description that the mixture cannot be swallowed because it remains absorbed in a small piece of plastic foam inside the cartridge.
– The following phrase in the reasons was deleted: "The product cannot be smoked per se and thus is not a product which corresponds to the description of heading 2403." and replaced by the phrase "Despite its use it cannot be considered as a product of heading 2403 as it does not contain any tobacco".
A round of the table showed that a vast majority of the Member State present were in favour of the amended draft regulation, nevertheless some of these Member States in favour of the proposal asked for a confirmation of the presence of tobacco essence in the product.
The Chair asked the submitting Member State to obtain confirmation from the manufacturer if the product contains tobacco essence. After obtaining this information a choice between two alternatives has to be done:
– The product does not contain tobacco essence: in this case the classification regulation as modified during this meeting will be presented for vote at a forthcoming Committee meeting.
– The product contains tobacco essence: in this case a classification regulation is not necessary and the file will be closed.
4.17 Draft Commission Regulation concerning the tariff classification of a product used for staining of leukocytes in blood samples, TAXUD/1064672/2010 and TAXUD/202292/2011.
The Committee examined a draft regulation concerning the tariff classification of a product used for staining of leukocytes in blood samples.
The Chair informed the Committee that additional information on this issue had been submitted by a Third Party. This information was made available to the Member States via CIRCA with working document TAXUD/202292/2011.
Following the discussion a round of the table indicated that a large majority of the Member States present favoured the classification of the product at issue as a dye of heading 3212.
The Chair concluded by saying that after some editorial amendments the draft proposal will be subject to an inter-service consultation with a view of presenting it for vote at a forthcoming Committee meeting.
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4.18 Draft Commission Regulation concerning the tariff classification of prepared enzymes, TAXUD/1057217/2010.
The Committee examined a draft regulation concerning the tariff classification of prepared enzymes.
The request of one Member State concerning the addition of the amount of the enzyme in the product description was not supported since it was considered as not being necessary for classification purposes.
Upon suggestion of a second Member State the Committee agreed to delete the composition of the buffer from the product description for the same reason.
Following the discussion, a round of the table indicated that a large majority of the Member States present favoured the classification of the product at issue as a prepared enzyme of heading 3507.
The Chair concluded by saying that after some editorial amendments the draft proposal will be subject to an inter-service consultation with a view of presenting it for vote at a forthcoming Committee meeting.
4.19 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (Additional Note 1 to Chapter 30), TAXUD/075128/2011.
The Committee examined a proposal for an amendment of the Explanatory Notes to the Combined Nomenclature to the Additional Note 1 of Chapter 30.
The CNEN to the aforementioned Additional Note contain a table, setting out the recommended daily allowances (RDA's) of vitamins and minerals, which was taken from Annex 1 to the Council Directive 90/496/EEC of 24th September 1990. However, that Council Directive was amended by Commission Directive 2008/100/EC of 28th October 2008 and as a consequence the CNEN have to be amended.
One Member State stated that some of the new elements mentioned in the list are presented in a different way as it is presented in the Harmonised System Explanatory Notes to heading 2936. For example, in the draft proposal it is mentioned "Vitamin K" and the HSEN state "Vitamin K1, Vitamin K2, etc".
Another Member State presented some concerns related to the new amounts referred to in the proposal as the limits were highly increased. Therefore, prior to give the opinion on the proposal, its customs administration has to be consulted.
A round of the table showed that the majority of the Member States present could agree with the proposal.
The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting.
4.20 Draft Commission proposal for an amendment of the Explanatory Notes to the Combined Nomenclature (tobacco for water pipe), TAXUD/145264/2011.
The Committee examined a proposal for an amendment of the Explanatory Notes to the Combined Nomenclature concerning CN codes 2403 10 10 and 2403 10 90 and CN code 2403 99 90.
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One Member State mentioned that at the 42nd session of the Harmonised System Committee it was decided that products could be classified in subheading 2403 10 only if tobacco is one of the product components. However, according to the current text of the Combined Nomenclature Explanatory Notes to CN codes 2403 10 10 and 2403 10 90 it is possible to classify a product not containing tobacco in subheading 2403 10. Due to this divergence the aforementioned CNEN should be aligned.
Two other Member States stated that the proposal to amend the CNEN should enter into force at the same time as the new Harmonised System Nomenclature (1st
January 2012). Nevertheless, other Member States remarked that this amendment should be done as soon as possible as the current situation is leading to divergent classifications.
A round of the table showed that the majority of the Member States present could agree with the proposal.
The Chair concluded by saying that a revised draft proposal will be put for vote at a forthcoming Committee meeting.
4.21 Tariff classification of an aqueous solution of sodium chloride, TAXUD/586945/2010 and, WCO document NC1248E1b/E/4.
The Committee examined the tariff classification of an aqueous solution of sodium chloride which is used for washing the nose.
This aqueous solution of sodium chloride shows the same composition (0.9 % of sodium chloride) and is destined to the same use as the product classified in subheading 3307 90 by a WCO classification opinion (see document NC1248E1b/E/4)
The submitting Member State, not represented during this meeting, justified its submission by the existence of two BTI issued by two Member States classifying the same or similar products in heading 2501 (other sodium chloride based products).
Of these two, one Member State confirmed that its BTI concerns an aerosol of a sodium chloride solution used to clean catheters, and the other concerned Member State confirmed that its BTI relates to a sodium chloride based product which is the object of an exothermic reaction used for the heating of foodstuffs. The Committee agreed that these BTI cannot be in conflict with the classification of the present aqueous solution of sodium chloride because they concern completely different products.
A round of the table showed that all Member States present agreed with the classification of the product in question in heading 3307.
As there is no conflicting BTI and a vast majority of Member States are in favour of heading 3307, the Chair concluded by saying that the file could be closed.
4.22 Tariff classification of egg yolk powder with additives, TAXUD/857103/2010.
The Committee examined the tariff classification of egg yolk containing additives.
One Member State explained that they issued a BTI with classification under CN code 2106 90 92 but that the administration from a Candidate country applies a classification under heading 0408 for the import of the product. The same Member State invited the Committee to deliver its classification opinion on the product.
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The representative of the Candidate country informed the Committee that he will consult his customs administration and laboratory on the reasons for the classification under heading 0408.
Another Member State also questioned the exclusion from heading 0408 because in its opinion the additives to the egg yolk could be regarded as allowed under this heading.
A round of the table showed a clear majority for the classification under heading 2106. Two Member States preferred heading 0408 because of the HS Explanatory Notes to this heading.
The Chair concluded by saying that the Committee's classification opinion is clear and invited the representative of the Candidate country to send in his information as soon as possible.
4.23 Tariff classification of concentrated guava or mango purées, TAXUD/878093/2010.
The Committee examined the tariff classification of concentrated fruit purées.
The one Member State explained that the purées undergo a dehydration process to reduce the volume and weight for transport reasons only (see also CJEU case C-324/89). The purées are used for the preparation and the addition to fruit juices. The same Member State made reference to the CN Explanatory Notes to heading 2007 and stressed that the taste and chemical properties of the products are not changed during the dehydration process. The same Member State also referred to the intended use of the purées as an objective criterion for the classification.
Another Member State stated that Note 5 to Chapter 20 should be applied because the fruit purées when presented to customs have an increased physical viscosity (by the heat treatment) resulting in a classification under heading 2007.
A third Member state favoured classification under heading 2008 and was of the opinion that a strict application of Note 5 to heading 2007 would transfer a lot of products from heading 2008 to 2007. The same Member State will provide the Commission services with scientific information on the production and processing of fruit purées.
A round of the table showed that a majority of the Member States present preferred classification of the products under heading 2007; several Member States asked for additional information (analytical data, BRIX values,…) on the fruit purées.
The Chair concluded by saying that:
– More information on the products is needed.
– An exact description of the product will be necessary for the drafting of a classification statement.
5. Any other business.
5.1 Results of the Project Group concerning the chemical chapters of HS/CN of 1st December 2010.
The report was adopted as read.
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5.2 Results of the Project Group concerning the chemical chapters of HS/CN from 7th to 8th December 2010.
The report was adopted as read.
5.3 Information on the tariff classification of shelled pumpkin seeds.
The Chair informed the Committee that the Commission has received a letter from a Member State asking for an amendment of the CNEN as regards the classification of pumpkin seeds following the judgment of the Court in case C-229/06.
The Chair concluded that, given the complex issue, a Project Group dedicated to this issue will be organised by DG TAXUD at its premises in May 2011 (see also item 5.4). A limited number of Member States (together with the Member States listed in item 5.4) will be invited to discuss possible solutions that will be presented to the Committee at a forthcoming meeting.
5.4 Information on the tariff classification of flavoured seaweed.
The Chair informed the Committee that this issue, dealing with the classification of dried seaweed with addition of seasoning and salt, has been already discussed briefly at the Project group meeting in October 2010 which suggested classification in heading 2106 for the product considered being a snack. The headings under consideration for seaweed products are 1212, 2008 and 2106. The Chair stated that for instance the Japanese customs tariff has specific tariff codes for seaweed products in subheadings 1212 20 and 2106 90, but not in heading 2008.
The Chair concluded that, given the complex issue, a Project Group dedicated to this issue will be organised by DG TAXUD at its premises in May 2011 (see also item 5.3). A limited number of Member States (together with the Member States listed in item 5.3) will be invited to discuss possible solutions that will be presented to the Committee at a forthcoming meeting.
5.5 Information on the file concerning food supplements (joined cases C-410/08 to C-412/08 "Swiss Caps" - invalidation of BTI).
The Chair informed the Committee that DG TAXUD has received several questions concerning the application of the Court ruling in joined cases C-410/08 to C-412/08 ("Swiss Caps"), mainly on the invalidation of BTI.
It was added that the interpretation of the "Swiss Caps" judgement made by the Commission services was done during the 29th meeting of the Customs Code Committee, in March 2010. According to Annex V of the minutes of that meeting, since a product is presented in capsules and used as a food supplement it has to be classified in heading 2106. Moreover, the judgment has to be applied not only to the products described in the decision but also to similar products.
Concerning the invalidation of the BTI issued for the products affected by the judgment the procedures that have to be applied are as follows:
1- Upon the publication of the operative part of the Court ruling in the 'C' series of the Official Journal of the European Union, the Member States should identify as
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soon as possible the valid BTI that they have issued and that are potentially affected by that ruling;
2- Consequently, the Member States should notify the respective holders in writing of their intention to revoke the BTI in accordance with Article 9 (1) of the Community Customs Code. This notification should also include:
– the grounds on which the intention to revoke the BTI is based;
– a reference to the Court ruling;
– an invitation to the holder to make known his views, within a reasonable period of time, as regards the grounds on which the intention to revoke the BTI is based;
3- It is up to the Member States to assess the views expressed by the holder of the BTI in the light of the relevant ruling. In case a Member State decides to proceed with the revocation of a specific BTI, it shall notify the holder of that revocation, in accordance with Article 9 (3) of the Community Customs Code. In accordance with Article 9 (4) of the Code, the revocation of the BTI shall take effect from the date of notification.
4- Subsequently, the holder will have the possibility to appeal against the revocation, in accordance with Article 243 of the Community Customs Code, and to request a period of extended use, in accordance with Article 12 (6) of the Code.
Two Member States mentioned that in their views the publication of a Court judgment is enough to revoke the BTI and no other measure needs to be adopted.
Another Member State remarked that the Court judgment affects only the products described in the decision and therefore it should not be applied to similar products.
A last Member State stated that its administration has revoked several BTI which were not in line with the Court judgment. Nevertheless, it asked if the BTI for new applications should be issued as there were still divergent BTI in the database.
The Chair mentioned that the BTI for new applications could be issued as there were no doubts concerning the tariff classification of the products (presented in capsules and used as food supplements) and concerning any divergent BTI in the database, the Commission services will contact the Member States involved as soon as these BTI have been identified.
Finally, it was added that the information provided about this item is conditional upon the approval by the Legal Service of the Commission, and the issue will be further discussed during the Customs Code Committee (BTI sector) taking place end of March 2011.
5.6 Information on the tariff classification of "Sugar mixtures".
The Chair informed the Committee that DG TAXUD is working together with other Commission services in order to finalise a proposal that could be accepted by all parties involved. It was added that this is a politically sensitive issue, and as soon as an agreement is reached the Committee will be informed.
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5.7 Information on the tariff classification of ethyl alcohol based mixtures and in particular on a project concerning the creation of new CN codes in Chapters 22 and 38.
The Chair informed the Committee that the draft proposal for a classification regulation concerning certain mixtures of ethyl alcohol with other substances has not received the agreement by the other Commission services. DG TAXUD is busy preparing a draft regulation for another, similar, product, consisting of a mixture of 70% ethyl alcohol and 30% gasoline. The Member States will receive that draft in due time.
The Chair also explained that the other ethyl alcohol based mixture (named ED 95) has been withdrawn from the draft proposal because its presence could provoke the rejection of the proposal and therefore it was preferable to leave only the other mixture in the proposal in order to maximise the chances of adoption. The Chair informed the Committee that the classification of ED 95 is only postponed but not abandoned.
The Commission services (DG TAXUD and DG AGRI) informed the Committee also about their intention to update the CN (in principle, planned for 2012) concerning the CN codes dealing with ethyl alcohol. In order to adapt the CN to the current needs of the sector, DG TAXUD proposes additional CN codes under heading 2207 as well as in Chapter 38. DG AGRI supports the creation of these additional CN codes. The Member States are invited to reflect on this issue and to inform DG TAXUD by the end of March 2011 on their current needs for possible additional CN codes for ethyl alcohol.
5.8 Information on the judgment of the Court of Justice of the European Union in case C-11/10.
The Chair informed the Committee that the Court of Justice of the European Union delivered on 17th February 2011 its judgment in case C-11/10 ("Marishipping"), concerning a product consisting of 96% chitosan, 3% ascorbic acid and 1% tartaric acid, and ruled that "Part One, Section II, C, 1(i) of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulations (EC) Nos 2031/2001 of 6 August 2001 and 1832/2002 of 1 August 2002, must be interpreted as meaning that a pharmaceutical substance listed in Annex 3 of Part Three of Annex I, to which other substances have been added, in particular pharmaceutical substances, no longer qualifies for the duty-free treatment which would have applied if such a substance had been in its pure form.".
5.9 List of pending and solved cases (EXCEL-table) - files to be closed.
As regards the file "products prepared from protein concentrates and textured protein substances" the Committee agreed closing the file and following the relevant HS classification opinions.
As regards the file "interpretation of Note 1 (b) to Chapter 38" the Committee agreed closing the file due to lack of further interest.
As regards the file "throat pastilles" the Committee agreed closing the file due to lack of further interest.
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As regards the file "urinary drainage bags" the Chair stated that the hearing at the Court of Justice of the European Union has taken place on 03/03/2011 and that the Committee will be informed on the next steps regarding this file once the judgment has been delivered.
No specific remarks were made as regards the remaining items on the list.
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 of Greece [only items 1, 2, 3.1
to 3.4, 5.1 and 5.2]Hungary Customs DirectorateIreland State LaboratoryItaly 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 [not represented]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
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ANNEX VI
STATEMENT
Statement on the classification of plastic containers
The Committee concluded that:
(1) - Statement on the classification of a plastic container without a lid
The Committee concluded that:
A container with the dimensions 28 x 18.5 x 5 cm, made of transparent plastic (polyethylene terephthalate), used for the packaging of foodstuff (by covering the container with a transparent foil),
is to be classified in heading 3923 (CN code 3923 10 00).
Classification is determined by General Rules 1, 3(a) and 6 for the interpretation of the Combined Nomenclature and the wording of CN codes 3923 and 3923 10 00.
See also the Harmonized System Explanatory Notes to heading 3923, first paragraph, point (a).
(see photo) *
(2) - Statement on the classification of a plastic container with a lid
The Committee concluded that:
A container with the dimensions 17 x 13.9 x 3 cm, made of transparent plastic (polyethylene terephthalate), with a lid, used for the packaging of foodstuff,
is to be classified in heading 3923 (CN code 3923 10 00).
Classification is determined by General Rules 1, 3(a) and 6 for the interpretation of the Combined Nomenclature and the wording of CN codes 3923 and 3923 10 00.
See also the Harmonized System Explanatory Notes to heading 3923, first paragraph, point (a).
