The Collective welcomes the approval by the European Council of the new anti-dumping legislation but sincerely regrets that these new rules, aimed at amending the EU breach of WTO rules, have come too late. It has not prevented EBMA from filing a complaint against imports of electric bikes from China based on the old unlawful rules. What worse, it has not prevented the European Commission from accepting the complaint and initiating a proceeding, which is just as well based on these unlawful rules.
The new legislation no longer allows the use of an analogue country, eliminates the distinction between market and non-market economies and reverses the burden of proof. The Commission will have to prove the existence of market distortions allowing for the application of the alternative method, i.e. the use of a constructed value.
Similar economic development
In other words, it will be up to the Commission to prove the existence of a "significant market distortion" between a product's sale price and its production cost. On that basis, it will be allowed to set a price for the product by referring for example to the price of the good in a country with a similar level of economic development or to relevant undistorted international costs and prices.
Completely contrary to all the above, the Commission has provisionally chosen, in accord with EBMA, Switzerland as the most suitable analogue country. To the Collective, this comparison appears neither appropriate, nor convincing to prove China is dumping electric bicycles in Europe through undercutting and underselling.
In their submission to the European Commission, the Collective had already argued that the importers found it unacceptable that this complaint had been accepted and was being treated, not only in accordance with European legislation in breach of WTO rules, but also along lines which go diametrically against the spirit and the objectives of the new rules aimed at amending this breach of WTO-rules.
Using Switzerland as an analogue country, is no less than comparing apples and oranges. Average monthly wages in China in 2016 were 730, in Switzerland 5,730. EBMA states explicitly that the case focusses mainly on EPACs, but chooses an analogue country with the relatively highest sales of speed EPACs in the world. In 2016, 22% of all electric bicycles sold in Switzerland were speed EPACs.
The much more stringent technical rules for these vehicles than for EPACs are only one element in much higher price levels than for 25 km/h EPACs. But supplying the lower end of the market does not automatically mean dumping. EBMA ignores this world of difference between Chinese and Swiss EPAC production, which allows for the calculation of triple digit dumping margins (from 193% to 430%) based on normal values of in between 1,782 and 2,544. This is totally unrealistic.
The new Regulation will apply to all decisions on the initiation of proceedings, and to all proceedings, including original investigations and review investigations, initiated on or after the date on which this Regulation enters into force. The Regulation will enter into force the day after its publication in the Official Journal. That date is announced to be the 20th December, precisely two months after publication of the initiation of the proceeding.