Regulation (EEC) No 2658/87 established a nomenclature of goods (hereinafter referred to as the ‘Combined Nomenclature’), which is set out in Annex I to that Regulation.

Dairy produce of Chapter 4 includes dairy permeates, which are milk products characterised by a high content of lactose and obtained by removing milk fats and milk proteins from milk, whey, cream and/or sweet buttermilk, and/or from similar raw material by ultrafiltration or other processing techniques.

Divergent views exist as regards the classification of whey and milk permeates under the subheadings of heading 0404. In the interest of legal certainty, it is therefore necessary to clarify the scope of subheadings 0404 10 and 0404 90 relating to such products.

The distinction between ‘whey permeate’ and ‘milk permeate’ can be made by the detection or non-detection of substances that are associated with whey production. That criterion should therefore be used, along with an organoleptic criterion, for the purposes of distinguishing between whey and milk permeates.

Subheading 0404 10 should include ‘whey permeate’ which is a product with generally a slightly sour smell, obtained though ultrafiltration of whey or mixtures of natural whey constituents. Classification of dairy permeates under that subheading should be conditional on the presence of substances associated with whey production (e.g. lactic acid, lactates and glycomacropeptides) in that product.

Subheading 0404 90 should include ‘milk permeate’ which is a product obtained though ultrafiltration of milk, with generally a milky smell. Classification of dairy permeates under that subheading should be conditional on the quantitatively limited level or the absence of substances associated with whey production in that product.

The reference method for the detection of lactic acid and lactates (ISO 8069:2005 method) is provided for in Part A of Annex I to Commission Regulation (EC) No 273/2008

Commission Regulation (EC) No 273/2008 of 5 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards methods for the analysis and quality evaluation of milk and milk products (OJ L 88, 29.3.2008, p. 1).

In order to ensure correct classification of the products concerned, new Additional notes should therefore be added to Chapter 4 of Part Two of the Combined Nomenclature to ensure its uniform interpretation throughout the Union.

Regulation (EEC) No 2658/87 should therefore be amended accordingly.

The Customs Code Committee has not issued an opinion within the time limit set by its Chair,