When considering the entry of goods into the European Union from third countries – and even more so when they come from large production centres such as China, which has become the most important competitor of the Member States of the European Union in recent years – it is essential to bear in mind that an apparently normal import can become a complex customs contingency. Anti-dumping duties and countervailing duties are two of those tools provided for in European law to prevent infringement of the arm’s length principle. Its objective is legitimate – to protect European industry against imports operating at artificially low prices or with state subsidies – but its practical application can generate significant risks for the importer who would not have foreseen them.
The basic regulations governing anti-dumping and countervailing duties are found in European Regulations 384/96 and 2026/97. In order for them to be applied, through the so-called Implementing Regulations, a prior formal investigation by the European Commission is necessary, through which the unfair practice applied by companies from the third country in question is confirmed.
From our professional experience, we have accompanied numerous European import companies that faced trade defence measures, especially in operations with China.
The anti-dumping duty, in essence, arises when it is shown that a product exported to the EU is sold at a price below the “normal price” in its country of origin. This is considered unfair competition with European producers. Similarly, the countervailing duty arises when the product benefits from government aid or subsidies that distort its price. Both mechanisms are independent of the ordinary tariff and usually have an initial planned period of five years, provided that they have been imposed on a final and not provisional basis.
What is the difference between provisional and final measures?
During the investigation, the European Commission may issue a provisional anti-dumping regulation which may have a maximum duration of 9 months. At that time, the importer does not pay the duty, but is required to provide a customs guarantee (e.g. a guarantee or deposit) equivalent to the estimated amount of the tariff. Only when the investigation concludes with a definitive regulation is the exact duty fixed: if the definitive duty is equal to the provisional duty, the security is enforced; if it is lower, the remainder is released; If nothing is finally imposed, the warranty is cancelled. In other words, the provisional measure is not charged, but it blocks the importer from a potential obligation that requires vigilance. This phase is key to correctly planning the strategy as it is also key to apply the correct TARIC because in many cases, according to our experience, customs agents apply incorrect tariff codes which directly impacts the application or not of the anti-dumping measure in question.
It is also important to highlight the need to issue commercial invoices with the specific indications given by the Regulations on the Implementation of Anti-Dumping Measures in order to apply the lowest anti-dumping rate established in those Regulations when the selling company has been characterized as a collaborator in the investigation carried out by the European Commission. If the invoice format required by the Implementing Regulation is not used, European customs will apply the general anti-dumping which is usually much higher.
Special cases in which the anti-dumping measure may not apply
As a general rule, the country of export coincides with the country of origin of the product. However, if a company claims that the goods originate from a country other than the country subject to anti-dumping measures, it may be exempted from the obligation to pay the corresponding amount, but it will be necessary to provide a certificate of origin to prove this.
There is also the so-called individual anti-dumping duty that applies only to certain manufacturers or exporters, set according to the actual margin of dumping that has been detected in the specific case. In this case, as we have also explained above, the general rate of dumping does not apply, but a much lower rate if the importer can demonstrate that the product was manufactured by one of the manufacturers to which the lower rate applies.
Finally, there is the possibility for the importer not to pay the anti-dumping measure if he can prove that the products only enter the EU, in our case, in Spain to be processed and then re-exported to a third country to be sold there. In this case, it is necessary to carry out prior customs procedures subject to authorisation by the customs of the importing country, for example through the application of the inward processing regime, as we will explain below through a real case that we have defended.
A practical example
We recently advised a company that imported high-pressure seamless steel cylinders from China, following the entry into force of Regulation (EU) 2025/1711 with rates above 118%. The critical issue was to establish the relevant moment for the application of the duty: it was determined that what matters is the date of acceptance of the import declaration, not the date of the order or the contract. In the same way, the inward processing regime was analyzed, which allowed the company to introduce the subject goods, transform them in Spain and re-export them without accruing the duty, given that the final destination of the products for the sale of the products was not Spain but another third country. This solution – an unusual option in many companies – made it possible to avoid a serious economic impact.
In sum, legal defence against an anti-dumping measure requires a combination of specialist knowledge (standard, TARIC, customs regimes) and practical action covering the entire import chain, customs codes, invoices and certificates of origin. At Navas & Cusí, as lawyers specialised in EU and Community law, we have advised textile, industrial, and technology importers affected by measures on China, achieving results ranging from administrative appeals to the structuring of operations under suspensive customs regimes.
For businesses operating in such a dynamic environment, having advice that combines the European legal perspective and customs operations is essential. Only in this way can trade interests be protected and the risks that the EU’s trade defence may entail minimised.
