EUROPEAN COMMISSIONDIRECTORATE-GENERAL TAXATION AND CUSTOMS UNIONCustoms Policy, Legislation, TariffHS Convention, combined nomenclature, tariff classification

Brussels, 13 December 2012taxud.a.4/AB/adb - Ares(2012)1738020

TAXUD/1667429/2012-EN

CUSTOMS CODE COMMITTEE

TARIFF AND STATISTICAL NOMENCLATURE SECTION

Summary Report of the 98th meeting of the Customs Code Committee

(Agriculture/Chemical sector)

http://ec.europa.eu/transparency/regcomitology/index_en.htm

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111Office: LX40-00/025 - Tel. direct line +32 229-58304 - Fax +32 229-64346

EUROPEAN COMMISSIONDIRECTORATE-GENERAL TAXATION AND CUSTOMS UNIONCustoms Policy, Legislation, TariffHS Convention, combined nomenclature, tariff classification

Brussels, 13 December 2012taxud.a.4/AB/adb Ares(2012)

TAXUD/1667429/2012-EN

Customs Code Committee Tariff and Statistical Nomenclature Section

(Agriculture/Chemical Sector)

Summary Report of the 98th meeting of the Customs Code Committee held in Brussels from 6th to 7th December 2012

AGENDA

1. Approval of the agenda of the 98th meeting of the Customs Code Committee.

2. Adoption of the minutes of the 94th 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 proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature (heading 2206 00, subheadings 2208 90 91 and 2208 90 99), TAXUD/1347140/2012.

3.2 Draft Commission Implementing Regulation concerning the tariff classification of mixtures of ethyl alcohol and ETBE, TAXUD/1427663/2012.

4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.

4.1 Tariff classification of maize flour snacks, TAXUD/365948/2012-REV 2.

4.2 Tariff classification of miso, TAXUD/991098/2012-REV 1.

4.3 Tariff classification of food supplements, TAXUD/1427715/2012 and TAXUD/1427721/2012.

4.4 Tariff classification of a heavy mineral oil named VGO (subheadings 2707 99 91 and 2707 99 99), TAXUD/1347172/2012.

4.5 Tariff classification of granules consisting of calcium carbonate and starch, TAXUD/1347151/2012.

4.6 Tariff classification of human recombinant laminin, TAXUD/1347162/2012.

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111Office: LX40-00/025 - Tel. direct line +32 229-58304 - Fax +32 229-64346

4.7 Tariff classification of cat litter (composed of bentonite clay and of silicium dioxide respectively), TAXUD/1347180/2012.

4.8 Tariff classification of a concentrate for the production of anti-freezing fluid, TAXUD/1427674/2012.

4.9 Tariff classification of gas obtained from biomass, TAXUD/1013950/2012 and TAXUD/1527900/2012.

Items for first discussion in the Committee:

4.10 Tariff classification of fruit-vegetables preparations, TAXUD/871964/2012.

4.11 Tariff classification of 'Shiazo Shisha Steam Stones', TAXUD/1050186/2012.

4.12 Tariff classification of bromelain 500 mg - food supplement in tablets, TAXUD/1050206/2012.

4.13 Tariff classification of green-lipped mussel powder, TAXUD/1111873/2012.

4.14 Application of Additional Notes 2 and 5 to Chapter 20 to concentrated fruit and vegetable juices, TAXUD/1182440/2012.

4.15 Tariff classification of "Bittner Balsam", TAXUD/1427689/2012 and TAXUD/1427699/2012.

4.16 Tariff classification of 'tobacco refuse', TAXUD/1182470/2012.

4.17 Tariff classification of 'Cigars, cheroots and cigarillos', TAXUD/1427705/2012.

4.18 Tariff classification of 'Plant cell cultures', TAXUD/1427726/2012.

5. Any other business.

5.1 Results of the Project Group concerning the food chapters of HS/CN from 13th to 14th

September 2012.

5.2 Information concerning the results of the Project Group concerning the chemical chapters of HS/CN from 17th to 18th September 2012.

5.3 Results of the Project Group concerning the chemical chapters of HS/CN from 19th to 20th September 2012.

5.4 Information concerning the results of the Project Group concerning the chemical chapters of HS/CN from 14th to 15th November 2012.

5.5 Information on the preparation of the next session of the Scientific Sub-Committee of the HS/WCO.

5.6 List of pending and solved cases (EXCEL-table) - files to be closed.

ANNEXES:

I Attendance list

II-III Draft measures

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1. Approval of the agenda of the 98th 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 5.7 (Possible repealing of Commission Implementing Regulation (EU) No 1302/2011 of 9 December 2011 ("plastic drinking bottles")) and item 5.8 (Dried honey with trehalose) have been added to the agenda.

The current agenda was then approved by the participants.

2. Adoption of the minutes of the 94th meeting of the Customs Code Committee.

As regards items 3.1 and 4.1 one Member State made the following statements:

Item 3.1 (vote on 'dehydrated cane molasses'), this Member State would like to add a precision (underlined text) with regard to its reasoning for voting against the proposal that was submitted by the Commission:

“Reasons for voting against: One Member State was of the opinion that the description of the product was not correct as some elements were missing. The other Member State voting against was of the opinion that the description of the product was incomplete and unjust and that the absence of invert sugar could justify the conclusion that this product could be considered to be a mixture of raw sugar and fibres.”

The Chair said that he takes note of the Member State's remarks, the procedure however has already been finished with the text as it has been put by the Commission.

Item 4.1 (Tariff classification of an herbal product ("Moxa")), this Member State stated that the suggested text (underlined) in the report would mean that - although disregarded by the Committee - it was at least considered that there is a conflicting Explanatory Note in heading 3003 stipulating that mixtures of the plants shall be classified under heading 1211:

"One Member State mentioned that the product should be classified under heading 1211 as the exclusions of this heading relate only to mixtures of plants of a kind used either directly for flavouring beverages or for preparing extracts for the manufacture of beverages. As the product is not used for these purposes the correct classification would be under heading 1211. This delegation contradicted the argument that was raised by various delegations that mixtures of plants could not be classified under heading 1211, referring to the HS Explanatory Notes to heading 30.03 under 6, excluding the classification in this heading of “ medical mixtures of the plants or parts of plants of heading 1211”."

Another Member State made the following statement as regards item 4.12 where the 3rd paragraph should read in its opinion as follows (proposed amendments underlined):

"One Member State stated that the product at hand according to the information provided is intended to be used in the manufacture of tablets by customers of the importer. The fact that calcium carbonate can have different functions in different products makes classification in heading 3003 based on information about the intended use of the product highly problematic as this is not supported by the

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objective characteristics of the product and will be based on information that cannot be verified at the time of importation. Thus, classification of the bulk product under heading 2106 is preferred taking also into account Regulation (EU) No 380/2010 classifying tablets put up for retail sale and consisting mainly of calcium carbonate under heading 2106."

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 proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature (heading 2206   00, subheadings 2208   90   91 and 2208   90   99), TAXUD/1347140/2012.

The Committee examined the draft Commission proposal concerning an amendment of the Explanatory Notes to the Combined Nomenclature (heading 2206 00, subheadings 2208 90 91 and 2208 90 99).

The Committee delivered a favourable opinion on the draft measure as set out in Annex   II .

3.2 Draft Commission Implementing Regulation concerning the tariff classification of mixtures of ethyl alcohol and ETBE , TAXUD/1427663/2012.

The Committee examined the draft Commission Implementing Regulation concerning the tariff classification of mixtures of ethyl alcohol and ETBE.

The Committee delivered a favourable opinion on the draft measure as set out in Annex   III .

4. Items submitted to the Committee for examination under Article 8 of Regulation (EEC) No. 2658/87.

4.1 Tariff classification of maize flour snacks, TAXUD/365948/2012-REV   2.

The Committee examined the revised draft Commission Implementing Regulation concerning the tariff classification of maize flour snacks under heading 1904.

The one Member State having initiated the file, agreed with the draft proposal and reminded the Committee on the fact that a valid BTI exists under heading 1904 and that a third Country is classifying the product under heading 1905. Another Member State could not agree with the proposed classification. This Member State is of the opinion that in industrial processes under high pressure (extrusion) the amount of water to produce dough is different from a normal cooking process, that roasting is not possible at 120 to 130°C and for this Member State a dough is used to produce extruded products to be classified in CN code 1905 90 55.

Two other Member States still had questions on the different stages in the production process.

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A round of the table indicated that a majority (235 votes) of the Member States represented favoured classification of the product under heading 1904 as a prepared food obtained by swelling or roasting of cereals or cereal products.

The Chair concluded by saying that the description and the reasons of the proposal will be revised and updated. The revised proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.

4.2 Tariff classification of miso, TAXUD/991098/2012-REV   1.

The Committee examined the revised draft Commission Implementing Regulation concerning the tariff classification of miso under heading 2103.

A round of the table showed that all Member States represented but one favoured classification of miso under heading 2103. This one Member State preferred heading 2106.

The Chair concluded by saying that other uses of miso are possible but that the described product is clearly a condiment/seasoning product of heading 2103.

The proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.

4.3 Tariff classification of food supplements, TAXUD/1427715/2012 and TAXUD/1427721/2012.

The Committee examined two draft proposals: an Additional Note to Chapter 21 and an amendment to the Combined Nomenclature Explanatory Notes (CNEN) to heading 2106. The Chair gave a summary of the file and presented the proposals.

Two Member States mentioned that they could not support the proposals as they would not solve the problems related to the tariff classification of food supplements. Nevertheless, two other Member States had a different opinion and in their opinion this was the correct way to ensure the uniform classification of this type of products.

Three Member States were of the opinion that the expression presented in both proposals "…unless they are elsewhere specified or included." should be deleted in order to avoid future problems.

One Member State said that the only possibility to solve the problems related to the classification of the food supplements was the creation of a new heading 2107, at WCO level.

Another three Member States mentioned that the draft Additional Note to Chapter 21 was not needed and they could only support the draft CNEN to heading 2106.

A round of the table showed that the majority of Member States represented could support both proposals.

The Chair concluded by saying that the proposals will be subject to an inter-services consultation with a view of presenting them for vote at a forthcoming Committee meeting.

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4.4 Tariff classification of a heavy mineral oil named VGO (subheadings 2707   99   91 and 2707   99   99), TAXUD/1347172/2012.

The Committee examined the tariff classification of a heavy mineral oil named VGO and in particular a draft proposal for an amendment of the CN Explanatory Notes to CN codes 2707 99 91 and 2707 99 99, resulting from the discussion at the previous Committee meeting in October 2012.

The main objective of this amendment was to remove the contradiction between the Combined Nomenclature Explanatory Notes (CNEN) and Note 2 to Chapter 27.

Two Member States requested to replace "paragraph 1." by "point 1." in the first part of the draft (the header before the text).

Another Member State signalled that the German translation needs some revision and asked to add "by the EN ISO 12185 method" after the phrase "These products have generally a density exceeding 1,000 g/cm3 at 15°C". This Member State also considered that a reference to EN ISO methods should be indicated in indents a) and b) instead as a reference to ASTM methods.

The Chair confirmed that the replacement of the references to ASTM methods by EN ISO methods will of course be taken into account as they have already been published in OJ C 189 of 29/06/2011. The next consolidated version of the CNEN (to be published in 2013) will show the updated text of both the existing publication and the publication to come (provided the draft is voted in March 2013). The Chair said that, for the time being, draft proposals for amendments of CNEN show only the reference to the CNEN currently in force (OJ C 137 of 06/05/2011).

A round of the table showed that a vast majority of Member States were in favour of the proposal. One Member State was against because its administration preferred a classification under heading 2710. Another Member State abstained without providing instantly a nearer explanation but said it will inform the Commission later in detail on its reasoning.

The proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.

4.5 Tariff classification of granules consisting of calcium carbonate and starch, TAXUD/1347151/2012.

The Committee examined a draft Commission Implementing Regulation concerning the classification of a product consisting of calcium carbonate and starch, presented in bulk. The Chair gave a summary of the file and presented the proposal.

One Member State was of the view that the intended use is not inherent to the product.

The Chair referred to the settled case-law of the Court of Justice of the European Union according to which the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties.

However, if the intended use of a product cannot be assessed at the time of importation, this criterion does not apply for classification purposes.

Two Member States referred to Regulation (EU) No 380/2010 classifying tablets put up for retail sale and consisting mainly of calcium carbonate under heading 2106.

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The Chair replied that there is a significant difference in the two types of products: the tablets described in the regulation are put up for retail sale while the product at hand is presented in bulk. According to the wording of headings 3003 ("medicaments […] consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale") and 3004 ("medicaments […] consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses […] or in forms or packings for retail sale") the bulk product at issue could only be covered by heading 3003. Concerning the tablets exclusion from Chapter 30 was due to Additional Note 1 to Chapter 30 which only applies to certain products of heading 3004.

Following the discussion some textual amendments were made to the proposal and by consensus the Member States represented were in favour of a classification of the product at hand under heading 2106.

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.

4.6 Tariff classification of human recombinant laminin, TAXUD/1347162/2012.

The Committee examined a draft Commission Implementing Regulation concerning the classification of a product consisting of a human glycoprotein (laminin) in a buffer. The Chair gave a summary of the file and presented the proposal.

Following the discussion a round of the table showed that the majority of the Member States represented preferred a classification of the product at issue under heading 3504.

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.

4.7 Tariff classification of cat litter (composed of bentonite clay and of silicium dioxide respectively), TAXUD/1347180/2012.

The Committee examined a draft classification regulation for two different products:

- a cat litter which is composed of more than 94% of natural bentonite clay (CAS RN 1302-78-9) which has been dried and treated with an anti-bacterial agent to prevent growing of bacteria and odour; and

- a cat litter which is composed of 97% or more of translucent granules of silicon dioxide and 3% or less of coloured granules of silicon dioxide with the addition of a blue dye which may vary in nature depending on the product (polymer, methylene blue…).

One Member State asked to mention in the description and in the reasons of the first product that it contains activated carbon.

The Chair concluded by saying that the draft proposal will be revised. The Member States are invited to participate in a CIRCABC Newsgroup Discussion on the subject in order to guarantee a swift discussion and finalisation of the draft at a forthcoming Committee meeting.

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4.8 Tariff classification of a concentrate for the production of anti-freezing fluid, TAXUD/1427674/2012.

The Committee examined the classification of a concentrate for the production of anti-freezing fluid.

The question was whether this product should be classified under heading 3820 as an anti-freezing preparation and prepared de-icing fluid or under heading 2207 as a denatured ethyl alcohol.

A round of the table showed that there was no clear majority in favour of a specific classification:

- 9 Member States, representing 110 votes, were in favour of heading 3820;

- 15 Member States, representing 187 votes, were in favour of heading 2207;

- 2 Member States, representing 36 votes, abstained and one Member State was not represented.

The Chair concluded by saying that internal discussions will be re-launched due to the absence of a significant majority of Member States classifying this product under heading 3820 or heading 2207.

4.9 Tariff classification of gas obtained from biomass, TAXUD/1013950/2012 and TAXUD/1527900/2012.

The Committee examined the tariff classification of gas obtained from biomass.

The question was whether this gas should be classified in CN codes 2711 19 00 (liquefied) and 2711 29 00 (gaseous state) as "other petroleum gases and other gaseous hydrocarbons" or whether it should be classified in CN codes 2711 11 00 (liquefied) and 2711 21 00 (gaseous state) as "natural gas".

A representative of the excise unit of DG TAXUD informed the Committee that the movements of goods under suspension of excise duty are covered by special rules. Among those is the system (Excise movement control system or EMCS) for control of the movements of some excise goods, like the liquefied gas obtained from biomass. The problem lies in the difference of classification of this gas between Member States which has in this case a direct impact on whether or not the movement and control provisions in Directive 2008/118/EC apply. If the liquefied product is classified in CN code 2711 11 00 it is not subject to the control of the movements provisions, while its movements have to be controlled in case it is classified in CN code 2711 19 00. Therefore, it is important that Members States agree on the tariff classification of the product in question.

Two Member States preferred to have an amendment of the headings related to natural gas at HS level.

Another Member State classified the product in CN codes 2711 19 00 or 2711 29 00 and considered that the same natural process, but in different time scales, is at the origin of natural gas extracted from the soil and of gas obtained from biomass. Natural gas is resulting from the transformation of vegetal substances in the soil over millions of years, while gas obtained from biomass results from a much quicker transformation.

A fourth Member State said that it will be very difficult to distinguish by analysis a natural gas extracted from the soil from a gas obtained from biomass if they have similar compositions.

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A fifth Member State asked for a more complete and detailed information concerning the composition of these gases obtained from biomass.

The Member State at the origin of this discussion is invited to send more information to the Commission concerning the precise chemical composition of gas obtained from biomass.

A round of the table showed that a vast majority of Member States were in favour of a classification in CN codes 2711 19 00 or 2711 29 00. Three Member States preferred classification in CN codes 2711 11 00 or 2711 21 00. One Member State would classify the product in CN codes 2711 11 00 or 2711 21 00 if its methane content is at least 50% and in CN codes 2711 19 00 or 2711 29 00 if its methane content is less than 50%.

Items for first discussion in the Committee:

4.10 Tariff classification of fruit-vegetables preparations, TAXUD/871964/2012.

The Committee examined the tariff classification of fruit-vegetable preparations.

One Member State explained that it issued BTI's for fruit and vegetable preparations suitable for immediate consumption as beverage under heading 2202. The products are produced from concentrated juices with added purees and BTI's for similar products are issued in other Member States under the same heading.

It is the opinion of this Member State that fruit pulp (from the pressing process) is different from fruit puree and that the addition of fruit puree is not allowed for products of heading 2009 (fruit and vegetable juices). Therefore the described products should be classified as a beverage of heading 2202.The same Member state indicated that it needs a classification regulation because of on-going national court cases.

Another Member State is of the opinion that the addition of fruit/vegetable purees is not changing the characteristics of a fruit juice of heading 2009.

A third Member State supports the classification of the product under heading 2202 and has issued BTI's for similar products as beverages.

Two other Member States explained that the content of purees or pulp in fruit and vegetable preparations is depending on the type of fruit or vegetable and that this will influence the balance of ingredients in the final product and the tariff classification.

A round of the table indicated that the Committee is divided on the classification (50/50 for heading 2009 and 2202), 4 Member States abstained.

The Chair concluded by saying that no final decision on the classification is possible for the moment. Further study is needed for which additional information is welcomed.

4.11 Tariff classification of 'Shiazo Shisha Steam Stones', TAXUD/1050186/2012.

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The Committee examined the tariff classification of a product called "'Shiazo Shisha Steam Stones" which consists of small particles of a very porous natural stone. Glycerine and flavouring oils (for example, banana, strawberry, green apple) are injected into those stones/stone particles. The product is then heated and the steam is released in a water pipe and inhaled.

The question was whether the product should be classified under heading 2403 as "…manufactured tobacco substitutes;…" or under heading 3824 as "…chemical products and preparations of the chemical or allied industries, not elsewhere specified or included".

One 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. Furthermore, the Member State also said that the product is heated with a temperature of around 200ºC.

Another Member State took the position that the product is not a tobacco substitute. To be smoked, the product has to be burnt, but in this case that does not happen. The product is only heated and only steam is released. Consequently, the product has to be classified under heading 3824.

Three other Member States agreed with the previous Member State and remarked that as the product is not burnt classification under heading 2403 as tobacco substitutes has to be excluded.

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, as there is some information missing in the file, the submitting Member State is invited to contact the producer in order to obtain more elements and send the information to the Commissions services. The item will be discussed again at a forthcoming Committee meeting.

4.12 Tariff classification of bromelain 500 mg - food supplement in tablets, TAXUD/1050206/2012.

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 question was whether the product should be classified under heading 2106 as "Food preparations not elsewhere specified or included" or under heading 3507 as "Enzymes; prepared enzymes not elsewhere specified or included".

One Member State mentioned that according to Note 1(g) to Chapter 21 the product has to be excluded from heading 2106. Consequently, it has to be classified under heading 3507 as an enzyme.

Another Member Sate argued that following the instructions given by the judgment of the Court of Justice of 17th December 2009 in Joined Cases C-410/08 to C-412/08 ("Swiss Caps"), concerning the 'use as food supplement and presented in measured doses', the product has to be classified under heading 2106.

The Chair explained that the "Swiss Caps" ruling cannot be applied in all situations. It can be applied to the products used as food supplements and presented in capsules form. However, the ruling cannot be applied to other forms of presentations, such as,

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tablets, pills. In this case only the Additional Note to Chapter 21, as well as the CNEN's to Chapter 21 after their approval (discussed under item 4.3 of the agenda) can be applied. It was also mentioned that application of the abovementioned Notes should take into consideration the effect of the legal Notes, such as Note 2 to Chapter 18.

Another Member State said that the doubt was to what extend Note 1 (g) to Chapter 21 should be applied. According to its view, the "Swiss Caps" ruling mentioned that due to the use and the presentation, the oils presented in capsules were no longer considered as oils of Chapter 15 but as food supplements of Chapter 21. Therefore, the same analogy should be applied in this case: as the bromelain is presented in tablets and used as a food supplement, it should be considered as a food supplement of heading 2106 rather than an enzyme of heading 3507.

A round of the table showed that the majority of the Member States represented favoured classification of the product under heading 2106.

The Chair concluded by saying that taking into account that this item is related to the on-going discussions under item 4.3, this question will be subject to internal analysis in order to avoid divergent classification practices.

4.13 Tariff classification of green-lipped mussel powder, TAXUD/1111873/2012.

The Committee examined the classification of a product consisting of green-lipped mussel powder in three different grades.

One Member State stated that the main question was whether classification of the products at hand should be determined according to the objective characteristics or the intended use (here: used in the manufacture of animal feeding). According to a health certificate from a third country the products are fit, but not intended for human consumption. Therefore, classification under heading 0307 was favoured. The products can be found on the market in food preparations for humans as well as in pet food.

Another Member State said that the products are considered as being covered by Chapter 23 taking into account the health certificate according to which they are solely used for the manufacture of pet food. Consequently they are considered unfit for human consumption.

A third Member State informed the Committee about a national court ruling according to which a product in powder form, derived from the gonads of green-lipped mussels which is fit for human consumption, is classified under heading 0307.

A fourth Member State stressed that for such cases customs would need to rely on information given by the economic operator. It was in favour of a classification in Chapter 03 and would be open for guidance in a more general way (e.g. by CNENs).

It was further remarked that the term "fit for human consumption" is included in the wording of heading 0307 and the term "unfit for human consumption" can be found in the wording of heading 2301.

A round of the table showed that the vast majority of Member States represented was in favour of the classification of the products under heading 0307.

The Chair concluded by saying that Commission Services will prepare a draft regulation to be discussed at a forthcoming meeting.

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4.14 Application of Additional Notes 2 and 5 to Chapter 20 to concentrated fruit and vegetable juices, TAXUD/1182440/2012.

Not treated due to lack of time.

4.15 Tariff classification of "Bittner Balsam", TAXUD/1427689/2012 and TAXUD/1427699/2012.

The Committee examined the proposal for a draft Commission Implementing Decision concerning the revocation of the binding tariff information issued for a product called "Bittner Balsam".

This product is deemed by the Commission sufficiently similar to the product covered by Commission Regulation (EC) No 160/2007 of 15 February 2007. The Commission carried out an external study (see working document TAXUD/1427689/2012). Based on this study, the conditions of Additional Note 1(b) to Chapter 30 are not met and as a consequence classification under heading 3304 cannot be upheld as the product has to be classified under heading 2208 as an alcoholic beverage.

Consequently, the Commission has set up a draft Commission Implementing Decision concerning the revocation of the binding tariff information issued by the Member State concerned.

The Chair explained that it is according to the common practice and such Decisions are legally binding for the Member State(s) to which they are addressed to; publication takes place in the L-series of the Official Journal (see, for instance Decisions, 2003/727/EC, 2003/726/EC and 2003/723/EC).

The Chair said that the formal indication of the conditions of Additional Note 1(b) to Chapter 30 is not sufficient as such an indication has to be reflected by the objective characteristics and properties of the product concerned. In the case at issue this reflection could not be seen and consequently the BTI in question is incompatible with the general rules for the interpretation of the Combined Nomenclature.

The concerned Member State said that it took its decision to issue the BTI in question on the sole grounds of Additional Note 1(b) to Chapter 30 for which it saw the conditions fulfilled. It wondered how to proceed in similar cases.

The Chair replied that a general rule cannot be provided and that the decision has always to be done on a case-by-case analysis.

A round of the table showed that all Member States represented but two agreed on taking that measure. The concerned Member State was against it as it considers still the formal indication of the conditions of Additional Note 1(b) to Chapter 30 sufficient. Another Member State abstained as it shares the views of the concerned Member State.

The proposal will be subject to an inter-services consultation with a view of presenting it for vote at a forthcoming Committee meeting.

4.16 Tariff classification of 'tobacco refuse', TAXUD/1182470/2012.

Not treated due to lack of time.

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4.17 Tariff classification of 'Cigars, cheroots and cigarillos', TAXUD/1427705/2012.

The Committee examined a proposal to amend the current Combined Nomenclature Explanatory Notes to subheading 2402 10 00 "Cigars, cheroots and cigarillos, containing tobacco".

The Chair informed the Committee that this question was discussed during the Working Group on tobacco (GCL action 5) held in Budapest on the 4th and 5th July 2012. The participants of the Working Group agreed that in order to avoid inconsistencies between the definitions of cigars and cigarillos in the CNEN and in the text of excise legislation, the CNEN's should be amended as they were based on a former version of the Excise Directive.

One Member State mentioned that the expression "(but without any further layer of wrapper)" is not very clear and therefore it should be clarified.

Several Member States said that the text "…and normal consumer expectations…" cannot be used in the customs field as it would lead to divergent interpretations. Consequently, is should be deleted.

One Member State requested to stick to the current text of the Excise Directive, without the additions foreseen in the suggested version by the GCL Group.

The Commission mentioned that the Excise Directive will be revised during 2013/2014 and the objective is also to harmonise the customs and excise definitions in order to avoid future divergences.

A round of the table showed that the majority of the Member States represented favoured the amendment of the Combined Nomenclature Explanatory Notes to subheading 2402 10 00 "Cigars, cheroots and cigarillos, containing tobacco". However, it was also remarked that the text should be revised in order to avoid divergent interpretations as, for example, related to the expression "…normal consumer expectations…".

One Member State mentioned that the CNEN's text will be again different from the text in the Excise Directive if adopted like foreseen. Two other Member States abstained and requested further discussions on that issue.

The Chair concluded by saying that a revised version of the working document will be prepared and the item will be discussed again at a forthcoming Committee meeting.

4.18 Tariff classification of 'Plant cell cultures', TAXUD/1427726/2012.

Not treated due to lack of time.

5. Any other business.

5.1 Results of the Project Group concerning the food chapters of HS/CN from 13th to 14th September 2012.

The Committee endorsed the report and the Member States agreed on the findings.

5.2 Information concerning the results of the Project Group concerning the chemical chapters of HS/CN from 17th to 18th September 2012.

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The Chair informed the Committee that the report could not be endorsed at the meeting of the Customs Code Committee of 22nd and 23rd November 2012 (Mechanical/Miscellaneous Sector) as it has been distributed only after that meeting. The Member States have been invited to send in their comments in writing. The endorsement of the report will follow at a later point in time.

It should be noted that the Project Group dealt with discarded equipment of Chapters 84 to 95 and waste and scrap from such equipment. These chapters do not fall into the scope of the Agriculture/Chemistry Sector. However, in the report there is also reference made to Chapters 28, 36 and 38. Therefore, the Member States are invited to send any comment they might have concerning these Chapters to DG TAXUD/A.4 in writing.

5.3 Results of the Project Group concerning the chemical chapters of HS/CN from 19th to 20th September 2012.

The Committee endorsed the report and the Member States agreed on the findings.

5.4 Information concerning the results of the Project Group concerning the chemical chapters of HS/CN from 14th to 15th November 2012.

The Chair provided an oral report and said that the report will be distributed soon.

5.5 Information on the preparation of the next session of the Scientific Sub-Committee of the HS/WCO.

The Chair informed the Committee that the 28th session of the Scientific Sub-Committee of the WCO is scheduled to take place from 7th to 10th January 2013. The corresponding draft agenda was recently published on the WCO website (document NS0254E1a / NS0254F1a). Instead of a preparatory meeting at EU level the co-ordination concerning the items on the agenda will take place via the CIRCABC discussion forum to which Member States are invited to participate.

5.6 List of pending and solved cases (EXCEL-table) - files to be closed.

The Chair said that presently four files ("protein concentrates used for animal feeding", "cleansing wipes", "moxa", "cat's claw") are subject of inter-services consultations. Two new files ("simplification of Add. Note 2(f) to Ch. 27", "coke for electrodes and other cokes") have been added but the Commission is still gathering information to have a clearer picture of those files.

One Member State wondered when the file "salted egg yolk" will be back on the agenda. The Chair said that a note with further details on the issue has been exchanged between the Commission services and possibly the issue will be settled soon. The Committee will be informed in due time.

A second Member State reminded the Commission not to forget the file as regards the file concerning the products "E 85" and "ED 95". It also asked when the file "sugar mixtures" will be back on the agenda. The Chair said that the Commission is aware of those pending files and looks forward putting the file on "sugar mixtures" soon back on the agenda. However, discussions between the services are on-going.

A third Member State wondered when the "guidelines on sets" will be published as this would solve a series of pending classification issues. Furthermore, it would like

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to be updated on the file on the possible introduction of a new heading 2107 for "food supplements" on HS-level. The Chair said that the Commission is still waiting for the reactions from the Member States as regards the linguistic versions of the draft of the "guidelines on sets". The Member States are invited to reply as soon as possible, even when they have no corrections to propose the Commission needs to know. As regards the planned new heading 2107 for "food supplements" on HS-level, it is foreseen to complete the file by mid-2013.

No remarks were made as regards the remaining items on the list.

5.7 Possible repealing of Commission Implementing Regulation (EU) No   1302/2011 of 9   December 2011 ("plastic drinking bottles").

The Chair informed the Committee that the Harmonized System Committee (HSC) of the WCO decided at its 50th session that "water bottles for bicycles" should be classified under heading 3924. As Commission Implementing Regulation (EU) No 1302/2011 of 9 December 2011 classifies a "plastic bottle … for insertion into the holder for bottles on bicycles" under heading 3923, there is now a divergent classification of the same type of products.

No reservation has been entered concerning the HSC decision. Consequently, the Commission has to repeal the contradicting Regulation in question. This will be done (in early 2013) in the framework of the "transposition exercise" concerning the update of the existing classification regulations.

The Member States are invited to take note of the new situation and to check the existing BTI in order to invalidate those which cover such "water bottles for bicycles", after the revocation of the Regulation.

5.8 Dried honey with trehalose.

The Chair informed the Committee that a Member State has encountered problems when classifying a product (a candy, weighing 3.5 grams per piece) composed of 85% dried honey and 15% trehalose (a natural sugar). The question is whether it should be classified under heading 1704 as "sugar confectionary" or not (the alternative being heading 2106). The Member State would like to know the opinion of the other Member States before issuing a BTI and showed also a sample of the product.

A round of the table showed that the vast majority of Member States represented would classify the product under heading 1704. The concerned Member State said that this will allow now issuing the BTI and thanked the Committee for its swiftly delivered opinion.

The Chair concluded by saying that the issue is closed.

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ANNEX I

ATTENDANCE LIST

Chair Mr BLAHA DG TAXUD/A/4

Commission Services Mr BRUNERIE DG TAXUD/A/4Mr DILLEN DG TAXUD/A/4Mr ALMEIDA DG TAXUD/A/4Mr PAUL DG TAXUD/A/4

Item 4.9 Mr DELCROIX DG TAXUD/A/4Item 4.9 Mr ZHIVKOV DG TAXUD/C/2Item 4.17 Mr HOLZ DG TAXUD/C/2

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 [represented by Cyprus for items 3.1 and 3.2]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

Candidate CountriesCroatia Customs Directorate

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