Directorate-general taxation and customs union
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Brussels, 15 November 2007 TAXUD B3
Brussels, Limited
Customs Code Committee Tariff and Statistical Nomenclature Section (Mechanical Sector) Report of Conclusions of the 432nd meeting of the Customs Code Committee held in Brussels on 19 October 2007. Agenda 1. Approval of the agenda of the 432nd meeting of the Customs Code Committee. 2. Adoption of the Report of Conclusions of the 428th meeting of the Customs Code Committee. 3. Draft Commission regulations and CN Explanatory Notes submitted to the Committee for an opinion under Articles 9 and 10 of Regulation (EEC) No 2658/87, as amended by Article 252 of Regulation (EEC) No 2913/92: 3.1. Draft CN Explanatory Notes: Parts for tripods (doc. TAXUD/638/2007Rev1)* 3.2. Draft Commission Regulation: Excavator rotary-head slewing crown (doc. TAXUD/0666/2007Rev1)* 3.3. Draft CN Explanatory Notes: Optical fibre cables (doc. TAXUD/641/2007Rev1)* 3.4. Draft Commission regulation: Trikes (doc. TAXUD/0610/2007Rev1)*
4.1. Electronic cigarette (doc. TAXUD/0699/2007) 4.2. Products for communication by means of infrared signals (doc. TAXUD/0694/2007) 4.3. Daylighting System (doc. TAXUD/0700/2007) 4.4. Linear drives (doc. TAXUD/0701/2007) 4.5. I/O Modules (doc. TAXUD/0711/2007) Items for conclusion 4. 6. Draft CN Explanatory Notes: Spectacle cords or chains (doc. TAXUD/0608/2007 Rev1)* 4. 7. Draft CN Explanatory Notes: Power supply units (doc. TAXUD/639/2007Rev1)* 4.8. Draft Commission Regulation: Apparatus for hair removal by intense pulsed light (doc. TAXUD/0698/2007)* 4.9. Draft statement: DVD players and drives (doc. TAXUD/693/2007)* 4.10. Draft CN Explanatory Notes: Activity sets (doc. TAXUD/0578/2007)* 4.11. Draft CN Explanatory Notes: Gym ball (doc. TAXUD/0665/2007)* 4.12. Draft CN Explanatory Notes: Telecommunication cables (doc. TAXUD/640/2007)* 4.13. Draft CN Explanatory Notes: Collectors pieces (doc. TAXUD/664/2006)* 4.14. Draft CN Explanatory Notes: Parts and accessories for oldtimers (doc. TAXUD/642/2007) * 5. Proposal for autonomous duty suspension in Annex I to Commission Regulation 1549/2006 5.1. Proposal from industry to expand the autonomous duty suspension for monitors of HS heading 8528 59 (doc. TAXUD/0612/2007) 6. Any other business Second meeting of the Project group on Communication Second and third meetings of the Project group on Audio/Video List of pending cases Court cases (OLICOM) Other
1. Approval of the agenda The Committee meeting commenced on 18 October 2007 but was immediately suspended by the Chair due to lack of interpretation. It continued with the usual interpretation facilities on the 19 October 2007. All Member States, with the exception of Luxembourg and Malta, were present. Luxembourg was represented by Belgium and Malta was represented by the UK (Article 7, paragraph 2, of the Rules of procedure of the Customs Code Committee). The agenda was adopted as read.
The Chair withdrew this item from the agenda for procedural reasons. 3.2. Draft Commission Regulation: Excavator rotary-head slewing crown (doc. TAXUD/0666/2007Rev1)* Following some textual amendments, the Committee delivered a favourable opinion (qualified majority) on the draft regulation reproduced at Annex III with 316 votes in favour; 1 MS voted against (29 votes). Reasons for voting against: MS that voted against is of the opinion that the product is to be classified as a part of an excavator (Note 2(b) to Section XVI) under CN code 8431 49 80. 3.3. Draft CN Explanatory Notes: Optical fibre cables (doc. TAXUD/641/2007Rev1)* Following some textual amendments, the Committee delivered a favourable opinion (qualified majority) on the draft regulation reproduced at Annex III with 332 votes in favour; 1 MS abstained (13 votes). Reasons for abstaining: MS that abstained has a national tribunal decision whereby the products are classified under heading 9001. 3.4. Draft Commission regulation: Trikes (doc. TAXUD/0610/2007Rev1)* Following some textual amendments, the Committee delivered a favourable opinion (qualified majority) on the draft regulation reproduced at Annex III with 287 votes in favour; 2 MS voted against (58 votes) Reasons for voting against: One MS is of the opinion that the product is to be classified in heading 8711. This MS was of the opinion that trikes are different from the motor vehicle mentioned in heading 8703 because they do not have body-work and they are equipped with a motor-type steering mechanism. Three-wheeled vehicles are also classified in heading 8711 (see HSEN heading 8711). Another MS that voted against is of the opinion that the three-wheeled vehicles in question do not have the character of a motor vehicle but of a converted three-wheeled motorcycle. Their administration had delivered a BTI for a vehicle presenting similar characteristics to those of the product under examination. This MS pointed out that the HSENs to heading 8711 (page XVII-8711-1) clearly provide that only three-wheeled vehicles, which do not have the character of a motor vehicle, are covered by this heading. They also stated that the HS Committee classified a vehicle, denominated "X", which is a two-wheeled vehicle not having the character of a motor vehicle under this heading. In their opinion, classification of the vehicle in question under heading 8711 is, therefore, consistent with the HS classification opinion.
The issue has already been examined by AGRI/CHEM Sector of the Committee. When discussed during its working group, a majority of MS would classify the set consisting of an electronic apparatus + disposable cartridges containing nicotine in heading 8543 using GIRs 1, 3b) and 6. The cartridges, if presented on their own, are classifiable in heading 3824. However, some MS would classify the set in heading 3824, as the nicotine confers upon the set its essential character. Some MS mentioned that heading 3004 may merit consideration. One MS stated that they have a BTI for this product in heading 8543. They explained that the "smoking is not caused by a combustion but by electronic means". Other MS also deal with similar products (for example, one MS mentioned that similar products containing a pump for spraying the nicotine are classified under heading 8424). Questions: Are the products dealt with by MS the same or are there significant differences? Headings that merit consideration: 3824, 8424 (with a pump), 8543.
MS will reflect on the issue. 4.2. Products for communication by means of infrared signals (doc. TAXUD/0694/2007) Insufficient time for fact-finding. 4.3. Daylighting System (doc. TAXUD/0700/2007) Facts: Divergent classification in MS: 9013 versus 9405. Following the issuing of working document (doc. TAXUD/0700/2007), the MS concerned sent a note to the COM explaining that the products covered by the BTIs are not identical.
The above-mentioned note will be forwarded to all MS. MS are asked to reflect whether the case merits further discussion or not.
Prior to this court ruling, this MS classified these products under heading 8482, which is the same heading used in a BTI issued by the MS that presented this case. Detailed discussion on this item was postponed due to lack of time.
Insufficient time for fact-finding. Items for conclusion 4. 6. Draft CN Explanatory Notes: Spectacle cords or chains (doc. TAXUD/0608/2007 Rev1) 4. 7. Draft CN Explanatory Notes: Power supply units (doc. TAXUD/639/2007Rev1) 4.8. Draft Commission Regulation: Apparatus for hair removal by intense pulsed light (doc. TAXUD/0698/2007) 4.9. Draft statement: DVD players and drives (doc. TAXUD/693/2007) 4.10. Draft CN Explanatory Notes: Activity sets (doc. TAXUD/0578/2007) 4.11. Draft CN Explanatory Notes: Gym ball (doc. TAXUD/0665/2007) 4.12. Draft CN Explanatory Notes: Telecommunication cables (doc. TAXUD/640/2007) 4.13. Draft CN Explanatory Notes: Collectors pieces (doc. TAXUD/664/2006) 4.14. Draft CN Explanatory Notes: Parts and accessories for oldtimers (doc. TAXUD/642/2007) Items 4.6 to 4.14 were not discussed (insufficient time available for conclusion). Chair informed that the proposals under items 4.7. and 4.12. are being internally examined in the Commission. 5. Proposal for autonomous duty suspension in Annex I to Commission Regulation 1549/2006 5.1. Proposal from industry to expand the autonomous duty suspension for monitors of HS heading 8528 59 (doc. TAXUD/0612/2007) Chair informed that industry will present additional information concerning the proposal. Any other business Committee's working group (16 to 18 October 2007): The results of the Committee's working group are reflected in the wording of the final texts presented to the Committee. An exchange of views took place with regard to the other items dealt with under any other business following the suspension of the meeting on 18 October. Project groups: Second meeting of the Project group on Communication: MS were informed that further discussion took place on the scope of heading 8517. The examination of the classification of multifunctional hand-held devices was still open. Texts for draft CN Explanatory Notes on power supply units and telecommunication cables had been prepared. Second and third meetings of the Project group on Audio/Video: MS were informed that the examination of the classification of multifunctional hand-held devices continued. Following the second meeting in Athens, the participants prepared draft proposals for descriptions of the products. Most of the proposals were examined at the third meeting in Dublin where headings that merit consideration for the classification of the products were also identified. The basis for a comparison table was presented. The Committee agreed that the work of the Audio/video group should continue and the Chair asked for volunteers, both to participate and to host the next 2 meetings. In Dublin, European industry gave a presentation on multifunctional hand-held apparatus. The presentation will be available on Circa. The Committee agreed to another presentation, by industry, at the meeting scheduled for December. The Committee also invited DG TAXUD to seek replies from industry to the questionnaire prepared in Athens and enhanced by DG TAXUD, in particular in order to ensure that as many manufacturers and importers of hand-held apparatus are involved in the debate.
Draft list of pending cases was distributed to MS. Court cases C-142/06 - Olicom (PCMCIA cards): Ruling in favour of the importer. One MS informed that they have a national case pending and asked for a legal analysis on the scope of the Olicom judgement as soon as possible. The Chair undertook to ask for a legal analysis of the judgement from the competent Commission service. C-208/06 and C-209/06 - Medion/Canon (camcorder): Chair informed that the ECJ court ruling basically leaves national courts open to decide on the "complexity of the process". Chair informed on cases currently pending before the European Court of Justice. C-362/07 and C-363/07 - Kip 3000: Multifunctional apparatus that prints and copies and which can be connected to an ADP machine but also functions in stand-alone mode. C-376/07 - Kamino (Multipurpose video monitor which can be connected to an ADP machine.) C-312/07 - JVC France (camcorders): Similar issue as in C-208/06 and C-209/06 - Medion/Canon (camcorder). C-411/07 – xBV (Optocouplers): National administration concerned will provide background information. Other Classification of products referred to as "Y" and "Z": Facts: The economic operator does not agree with the classification of the above-mentioned products by one MS and has therefore approached the Commission. DG TAXUD has issued a working document concerning the classification of products referred to as "Y" and "Z" (TAXUD/0737/2007). Annex I of that document reproduces a note from the importer; in Annex II the BTIs referred to in that note are reproduced when found; Annex III includes BTIs issued for identical or similar products; Annex IV includes technical information about the products found on the Internet. The issue before the Committee concerns two different types of products, one of which are imported in different configurations, namely: - the so-called product "Y" (product for the streaming of sound; one configuration only), - the so-called product "Z" (product for streaming of sound/video/images; appears in the following 3 configurations: 1) complete product containing electronics + hard disc, 2) device without a hard disc, 3) hard disc only. Discussion and conclusions: The product "Y" One MS confirmed that one of the BTIs referred to by the company (classification in heading 8471) is not valid any more, the other one (classification in heading 8471) will be repealed. Another MS informed that it could not identify the BTI referred to in the note (classification in heading 8471). MS were asked to provide their opinion concerning the classification of this product: - classification in heading 8471 – no MS, - classification in heading 8519 – majority of MS, - classification in other headings – it was mentioned that headings 8517 and 8527 might merit consideration) The classification will be examined further (a file will be opened).
MS that issued several BTIs for this product informed on general practice for classification: - if complete product – classification in heading 8521 - if without hard disc – classification in heading 8522 as a part (but if capable of performing reproducing function even without hard disc – classification in heading 8521). MS concerned by the letter of the importer informed that their product is without hard disc. Another MS informed that they are currently examining a similar issue (xx TV) – streamer taking data from iTunes and transferring them to be shown in suitable format on TV with hard disc, no modem. The importer has suggested classification in heading 8517. MS still considering the classification. It was mentioned that this issue is also linked to the case concerning the classification of Incomplete recording and reproducing apparatus (doc. TAXUD/3615/2006) previously presented by one MS. MS informed that its BTI (classification in heading 8471) referred to in the note from the importer is no longer valid. With regard to the classification of the different configurations the following views were expressed:
classification in heading 8471 – no MS, classification in heading 8521 – most MS. Commission will consider if it is necessary to open a file (to be checked with MS if their product is similar and if it is necessary to open a separate file). 2) Device without a hard disc The issue will be further examined in relation to the "Incomplete recording and reproducing apparatus file (doc. TAXUD/3615/2006)". No MS would classify the product in heading 8471 but divergent views with regard to headings 8521 and 8522. 3) Hard disc only No need to discuss this issue as there are no doubts concerning the classification (heading 8471). Classification of Quads: Chair informed MS on note from OLAF (Mutual assistance), concerning headings 8703 and 9501. MS were reminded to follow recently published CN Explanatory Notes on "quads" (Official Journal C 164, 18/07/2007 p. 0003 – 0004). It was summarised that the search in the EBTI database showed that some BTIs dated after the publication do not take into account the criteria "towing capacity of a non-braked trailer of twice their own weight or more". Already before the meeting, MS had been requested by email to check their BTIs and to make sure that the technical information provided by industry, when applying for the BTI, is correct. Some MS informed the Committee that they face significant difficulties when obtaining technical information (existence of contradictory data-sheets, absence of the tyres at the time of importation that can have impact, etc.) Some MS suggested to reconsider the speed capacity of 25 km/h as referred to in the CN Explanatory Notes for 8701 90 11 to 8701 90 50. The Chair noted the reference in the HS Explanatory Notes to the presence of a power-take off for driving machines such as threshers and circular saws. One MS raised a question if the type of the surface needs to be taken into consideration when examining the "towing capacity of a non-braked trailer". It was stated that neither CNEN nor the ECJ court ruling concerning this type of vehicle specifies this precondition. Classification of All Terrain Vehicles having holes instead of hooks: One MS sent an email to other MS, inviting them to send their comments on the classification of a particular type of vehicle. Responses received from other MS showed that the views are not entirely clear. The main question is how to distinguish between vehicles of CN codes 8701 90 11 – 8701 90 50 (Agricultural and forestry tractors) and CN code 8701 90 90 (Other). See previous point. MS that presented the case was invited to prepare a draft regulation covering both types. Multipurpose vehicles (interpretation of the text of HS Explanatory Notes to headings 8703 and 8703: Chair informed that one MS sent a note concerning the interpretation of French versus English text of the HS Explanatory Notes. The issue is to be dealt with by the WCO Sector. Classification of "Floor standing tidy": One MS informed that there are divergent views on how to classify a so-called "floor standing tidy" made of wood and textile (using GIR 3 b) or GIR 3 c). The question is which material confers the essential character. The issue is linked to recently published CN Explanatory Notes on tables (can they be used by analogy?). MS concerned will consider an official submission of the case. Another MS reminded the Committee that a similar case concerning beds made of metal and textile has already been discussed by the Committee. Vehicles for disabled persons: MS concerned informed that this issue had been resolved and classification in heading 8713 will be followed by the other MS. Electro-scooters: Court case pending in one MS. Another MS, which has already expressed an interest in having an autonomous duty suspension, will submit a formal request to DG TAXUD for such a measure. Plywood (anti-dumping): One MS sent an email to other MS inviting them to comment on the classification of plywood (covered by antidumping measure or not?). In the meantime, DG TRADE confirmed that the product should be covered by the antidumping measure. However, taking into consideration divergent interpretations, it was suggested to clarify the text at 10 digit level in TARIC. Set top boxes: Some MS raised the issue of publication of the CN Explanatory Notes explaining the difficulties they encounter in practice. Chair informed that the publication of the CN Explanatory Notes was planned to be accompanied by the introduction of the autonomous duty suspension on these products. However, DG TAXUD was aware of the opposition by a number of MS to an autonomous duty suspension. Chair reminded MS not to issue any contradictory BTIs and to follow the text that had been agreed upon and had been made public in the Annex to the report of the respective meeting. One MS raised the question of the absence/presence of software (linked to camcorder issue, ECJ court rulings C-208/06 and C-209/06 - Medion/Canon). Chair concluded that the question of the absence/presence of software in this case needs further examination. MCPs (multichips): Chair informed that European industry had sent a note requesting an expansion of the current definition of multi-chips for HS 2012. DG TAXUD informed European industry of the timing issue and of the technical concerns expressed by both MS and within DG TAXUD on the proposed expansion of heading 8542. Photomasks: One MS presented this case as there are divergent BTI among MS for this type of product. Two MS issued BTIs in Chapter 37. Another MS had issued BTIs in heading 9010 and replaced that BTI, due to the change of the structure of the HS, with one in heading 8486. The latter MS does not consider these products to be finished ones and, therefore, classification in Chapter 37 is excluded. This issue was also discussed at the meeting of AGRI/CHEM sector with the conclusion that, before 2007, these products should have been classified in Chapter 37 and, after 2007, in heading 8486. However, the question as to the legal reasoning for this conclusion is still open as there were no relevant changes in the nomenclature for Chapter 37. The issue will be further co-ordinated between the sectors. If necessary, a measure for vote will be drafted.
MS concerned will continue in bilateral contacts. They will inform the COM if further discussion in the Committee is needed. Hand-held devices (iPod): One MS has expressed concerns with regard to a ruling in another MS. At the meeting, it requested that this issue be solved by the December meeting. COM is currently examining the impact of the decision issued by the Appeals Commissioners in one MS. One option is to prepare a draft decision invalidating the BTI that was issued following this decision. This issue is linked to general "hand-held devices classification issue" (divergent BTI existing). The Chair also stated that, based on the description in a BTI, it is very often difficult to identify a product. CN Explanatory Notes versus National Court Rulings: One MS informed on problems in applying CN Explanatory Notes if a contradictory national court ruling exists. Official note will be submitted. Blind rivets nuts: EUROSTAT was asked to create a statistical line, nevertheless a search in the EBTI database showed divergent classification in MS (7318 16 x 7318 19). One MS mentioned that CN code 8308 20 00 could also merit consideration. Samples were circulated among MS and MS were asked to consider the situation and inform the COM accordingly.
MS asked about the status of some antidumping classification related issues. The chair explained the procedures that have to be followed (review, notice, investigation, publication of Council regulation) and provided MS with the following information for concrete cases: Ring-binder mechanism: Discussion between DG TRADE and Legal Service resulted in a decision to deal with the issue as a circumvention review. (To make a review in order to change product scope was refused for legal reasons.). The notice should be published in next weeks. An investigation will follow, results will not be available before spring/summer 2008. One MS informed about the problem with these products which is linked to an antidumping measure (Regulation 976/2002 of 4 June 2002). Divergent opinion exists at 10 digit level - 8305 10 00 19 x 8305 10 00 90 . They asked to solve the issue as soon as possible. Hand pallet trucks: Review was published in OJ C 184 on 7 August 2007. Result possibly in spring 2008 with possible retroactive effect. Castings (malleable/non-malleable): A scope review is likely to be made (still to be started). Will be followed by an investigation, with possible results in spring/summer 2008. Report from Working group of AGRI/CHEM Sector: COM reported on the results of the discussion on some overlapping files in the working group of the AGRI/CHEM sector. Impregnated papers: Two samples were circulated. Chapters that merit consideration are Chapters 39 and 48. Note 2g) to Chapter 48 and WCO classification opinion for subheading 3921 90 where the term "fracture" is used (Sheets, consisting of paper heavily impregnated with melamine resin, which fracture on folding due to their brittle nature and which have lost the essential character of paper, used in the manufacture of laminates.) were referred to during the discussion. MS would tend to classify the samples provided in Chapter 39. However, samples will be sent to a laboratory in order to have more complete information. The question related to potential WCO/WTO disputes. Rolls and sheets of polarising material: Even if being imported in the form of rolls, classification in Chapter 90 (also as plates or sheets) is not excluded. ACF tape: Headings that merit consideration are headings 3920 and 8536. Majority of MS stated that this product should be classified in heading 3920. MS concerned (had requested a measure in case of classification in heading 8536) stated that if majority agrees with classification in heading 3920, they can follow the majority and they do not need a measure. Issue can be closed by a statement at the next meeting. Electronic cigarette: see point 4.1. Gas pipes: One MS approached the COM with a question concerning the classification of gas pipes - welded pipes (difference between 7306 10 11 and 7306 30 51- 7306 30 59). Other MS were consulted on this issue and the information will be passed to MS concerned. MS will continue in bilateral contacts and will inform the COM if further examination needed. Planning 2008: Meetings: Chair informed that meetings (of 2-3 days at the end of the week, preceded by 2-3 days of working group) are envisaged for weeks starting on: - 18 February - 14 April - 30 June - 22 September - 8 December. The need for sufficient warning before the meeting was acknowledged. Project groups: Chair informed that budget from Customs 2007 for 2 further project group meetings is still available. Depending on the outcome from the previous meetings, they could take place before March 2008. Apart from that, organisation of a new project group (dealing with hand-held devices and other items from the list of pending cases) is foreseen. MS were asked to indicate who is interested in hosting and participating in the project group. Access to documents: Chair reminded the Committee about Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. Access to TAXUD documents has always to be requested via COM. ANNEX I
ANNEX II
Draft classification regulation: Excavator rotary head slewing crown
ANNEX III Draft CN Explanatory Notes: Optical fibre cables Explanatory Notes to the Combined Nomenclature of the European Communities (2007/C …../..) Pursuant to Article 9(1)(a), second indent, of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff(1), the Explanatory Notes to the Combined Nomenclature of the European Communities(2) are amended as follows: On page 349, the following text is inserted:
3 4   
1. Optical Fibre Core (Glass Fibre Core) 2. Optical Fibre Cladding (Glass) 3. Inner Sheath of Soft Acrylate Coating 4. Colour Coding (ColourLock) Identification 5. Outer Sheath of Hard Acrylate Coating" ANNEX IV
Draft classification regulation: Trikes
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