There is a lot of incorrect information and unsubstantiated rumours going around in and outside Europe about the anti-dumping proceedings against electric bicycles imported from China. With this article, LEVA-EU establishes the facts based on dumping legislation. LEVA-EU hopes that this will put a stop to the gossip factory and will help companies to make a well-informed decision on their plans for the next few months and years. If, after reading this article, you are still left with questions and doubts, get in touch with us: leva-eu@telenet.be, tel. +32 9 233 60 05.

The only thing we know for sure at this moment in time is the following. So far, the Commission has not used the right to impose provisional duties. The imports are not being registered, which for now rules out retroactive collection of definitive duties. As for how this case concludes: all options are still open, i.e. definitive measures, withdrawal of the complaint or termination without measures.

First and foremost, there are no dumping duties for electric bicycles from China in place yet, no provisional duties, no definitive duties. Electric bikes imported from China are currently only subject to the normal import duty of 6%.

Provisional duties

The European Commission has the right to impose provisional duties. This right came into effect on 20^th December 2017 and may be used until 20^th July 2018. The Commission may do so on condition that they have determined that there is dumping going on, that this dumping causes injury to the Union Industry and that the Union interest calls for measures to prevent injury. But once again, to date the Commission has not introduced any provisional duties at all.

Should provisional duties be imposed, then these will not have to be paid immediately. It will suffice to secure the duties by a guarantee. Provisional duties may be imposed for 6 months and extended for another 3 months or they may immediately be imposed for one period of 9 months. Should provisional duties be imposed, then the Commission must initiate the procedure for determining definitive measures no later than 1 month before the expiry of the provisional duties.

Retroactivity

If definitive duties are imposed, they may be levied for no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation. However, 4 conditions need to be fulfilled:

• The imports must be registered, which is not the case for now. Registration can only happen following a request from the Union industry, which must contain sufficient evidence to justify the registration.
• The importers must be given an opportunity to comment on that request.
• There should be a history of dumping for the product concerned over an extended period or the importers should be or should have been aware of that dumping
• In addition to the level of import, which caused injury during the investigation period, there should be a further substantial rise in imports, which is likely to undermine the remedial effect of the definitive measures.

If this retroactivity is not applied, the provisional duties may still be collected from the date of their application. It is then up to the Commission to decide, irrespective of the imposition of definitive duties, which proportion of the provisional duty is to be collected.

If the definitive duties are higher than the provisional duties, the difference will not be collected. If it is lower, the duty shall be recalculated.

Duration

Definitive measures shall remain in force as long as it is necessary to counteract dumping, which is causing injury. Definitive measures expire 5 years after their imposition unless the Union industry lodges a request for an expiry review. They must do this no later than 3 months before the end of the 5-year period.

During these five years the Commission at their own initiative or at the request of a member state may review the measures. A request for an interim review may also be lodged at least one year after the imposition of the measures by exporters (Chinese manufacturers) or by importers or by the Union producers if they believe that the measures are insufficient to remedy the dumping and injury.

Anti-circumvention

An anti-circumvention investigation can only be initiated if definitive duties have been imposed. This may happen at the initiative of the Commission or at the request of a Member State or any interested party. Nevertheless, there must be enough time between the imposition of definitive duties and such a complaint to be able to establish that circumvention is going on. A period of at least 9 months to 1 year seems necessary. If anti-circumvention measures were to be imposed, it is unlikely for this to happen before June 2020.

Should anti-circumvention measures be imposed then assemblers in Europe will be able to apply for an exemption of these measures for the import of relevant parts on condition that the parts constitute no more than 59% of the total value of the parts of the assembled product. The remaining 41% may be imported from any country inside and outside Europe not included in the anti-circumvention measures.

The end?

As explained, the proceeding may end with the imposition of definitive measures or not. The Commission should normally conclude the proceeding no later than 20^th October 2018 and in no case later than 20^th January 2029. There are two ways of terminating the case without any measures. Either the complainant withdraws the complaint, or the Commission terminates the case without imposing any measures. If the complainant withdraws the complaint, then they may resend it to the Commission whenever they want. If the case is terminated by the Commission, then the complainant must wait 1 year before reintroducing the complaint.
Annick Roetynck