Source: YI CAI

I. Case Overview: "Another Instance" After Nine Years of Silence

On July 14, 2025, the European Commission published the final determination in the anti-dumping investigation concerning Multilayer Wood Flooring (MWF) originating in China. Pursuant to Article 10.4 of the Basic Anti-dumping Regulation, it decided to retroactively impose definitive anti-dumping duties on products that were released for free circulation between the date of initiation of the registration of imports (October 25, 2024) and the date of publication of the provisional regulation (January 15, 2025).

Following the decision on August 4, 2016, to retroactively impose duties on certain cold-rolled steel products from China, the Commission has utilized the "registration of imports" mechanism in several cases in recent years. However, the actual imposition of retroactive duties resumed with the Erythritol case in January 2025. The ruling in this wooden flooring case signals that the Commission's future enforcement approach may be tightening progressively, warranting heightened vigilance from all enterprises exporting to the EU.

II. Key Aspects of the System: Registration of Imports and Retroactive Imposition

According to Article 10.4 of the EU's Basic Anti-dumping Regulation, definitive anti-dumping duties may be levied on products imported for consumption up to 90 days prior to the date of application of provisional measures, but not earlier than the initiation of the investigation. This is known as "retroactive imposition." To trigger such retroactive imposition, the following four conditions must be met simultaneously:

(a) The imports have been registered in accordance with the Regulation;

(b) Importers have been given an opportunity to comment;

(c) There is a history of dumping over an extended period, or the importer was aware or should have been aware of the dumping and injury; 

(d) In addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports, which, in terms of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive duty. [1]

Registration of imports is stipulated in Article 14.5 of the Basic Regulation. The Commission may direct customs authorities to take appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration. The registration period for imports shall not exceed nine months. [2]

In summary, if the above four conditions are met, the Commission can decide to retroactively impose duties on the product concerned that was released for free circulation during the period following the registration date and falling within the 90 days prior to the imposition of provisional measures.

III. The Multilayer Wood Flooring Case: How the Commission Assessed the Four Conditions

In the Multilayer Wood Flooring case, the European Commission analyzed the four conditions for retroactive imposition.

Firstly, the Commission considered that the product concerned had been registered pursuant to Article 14.5 of the Basic Regulation, satisfying condition (a). The Commission also considered that, with the publication of the provisional regulation, importers had been given the opportunity to comment, satisfying condition (b). [3]

Regarding conditions (c) and (d), the Commission provided more detailed reasoning in response to comments from interested parties.

• Concerning the history of dumping or importer awareness

The Commission argued that the notice of initiation and the non-confidential version of the complaint contained and provided evidence of dumping margins and injury. Therefore, the Commission concluded that importers and users knew or should have known of the alleged dumping, its extent, and the injury. Accordingly, this condition for retroactive imposition was met.

However, several interested parties argued that the Commission should consider the lead time of several months between order and delivery, and that importers could not have known about the dumping when placing orders. The Commission cited the General Court of the European Union, stating that "Article 10.4(d) requires a 'further substantial rise in imports' beyond the investigation period, which must be assessed considering timing, volume, and other circumstances. The provision refers to 'imports' and not 'orders'. The Court indicated that lower-priced imports entering during and before the registration period could collectively contribute to stocks, undermining the remedial effect of the definitive measures." [4]

Furthermore, the Commission reiterated that importers should have been aware of the possibility of retroactive duties from the date of publication of the initiation notice; the purpose of the provision is not punitive but to prevent the remedial effect from being seriously undermined. Therefore, the focus should be on the overall effect of imports, not the subjective intent of individual importers. The Commission did not deny the existence of a time lag between order and delivery but argued that importers could still seek alternative solutions (such as reselling outside the EU or renegotiating). Consequently, the objections raised by interested parties were rejected.

• Concerning the further substantial rise in imports likely to seriously undermine the remedial effect of the definitive duty

Referring to Eurostat data, the Commission noted that from the first month after the initiation to the last month before the provisional measures (June to December 2024), the average monthly import volume increased by 56% compared to the investigation period average and by 66% compared to the same period in 2023. Examining the period from the first month after initiation to the last month before registration (June to September 2024), the average monthly import volume increased by 53% compared to the investigation period average and by 52% compared to the same period in 2023. Both analyses indicated a significant increase in imports after the initiation. During the same period, EU consumption decreased by 5%. In the absence of other explanations, the Commission concluded that this surge indicated stockpiling behavior.

Additionally, the average import unit price from June to September 2024 was 4.1% lower than the investigation period average; from June to December 2024, it was 3% lower. This showed that the import surge coincided with lower prices. The Commission considered that such a substantial volume of lower-priced imports entering the EU before provisional measures took effect would likely undermine the remedial effect of those measures.

In light of the above, the Commission concluded that the conditions set out in Article 10(4) of the Basic Regulation for the retroactive imposition of definitive duties were met. Definitive duties should therefore be imposed on the products registered pursuant to the Implementing Regulation.

IV. Enterprise Response: Minimizing Risks

So, how should enterprises respond to the potential risk of retroactive duties? We briefly summarize as follows:

1.Precise Production Planning and Shipment

Immediately initiate a "90-day countdown" from the date of initiation. Coordinate production planning, logistics, and sales departments to avoid concentrated shipments within the 90 days prior to the entry into force of provisional measures. Consider splitting long-term orders, postponing deliveries, or diverting them to non-EU markets.

2.Effective Communication with Customers

Maintain close communication with customers, fully informing them about the investigation initiation, the 90-day retroactive imposition "red line," and the potential additional duty burden. Based on this, jointly assess feasible options such as delayed delivery, phased shipments, or transshipment via other markets. Clarify through supplementary contractual clauses which party bears the cost and how it will be shared if retroactive duties are triggered, to avoid subsequent disputes.

3.Prepare Data and Defenses

Prepare relevant data such as shipping lead times, order dates, and inventory evidence in advance. This provides essential ammunition for subsequent industry-wide and company-specific defense efforts concerning arguments against retroactive imposition.

4.Alternative Supply Chain Layout

Assess the feasibility of establishing an overseas supply chain. However, it is crucial to engage professional consultancy and legal firms for analysis, evaluation, and validation, ensuring scientifically sound and prudent decision-making. Implement institutional arrangements to prevent and control anti-circumvention and rules of origin risks.

V. Conclusion: The Alarm Has Sounded, Prepare for Rain

The Multilayer Wood Flooring case demonstrates that the EU may transform "import registration + retroactive imposition" from an "exceptional tool" into a "conventional weapon" in the future. All enterprises exporting to the EU must henceforth incorporate the potential "risk of retroactive duties" into their considerations. Only through proactive and effective planning can they stabilize their market share in the EU amidst an increasingly stringent trade defense environment.

Notes:

[1] See Article 10.4 of the EU Basic Anti-dumping Regulation.

[2] See Article 14.5 of the EU Basic Anti-dumping Regulation.

[3] See COMMISSION IMPLEMENTING REGULATION (EU) 2025/1342, the final determination in the EU anti-dumping investigation concerning multilayer wood flooring from China, recitals 343, 344.

[4] Ibid., recital 355.

Author Bio:

Ms. Tong Jingjing holds an LL.B. from China University of Political Science and Law, and LL.M. degrees from Shanghai University of International Business and Economics and the University of Texas at Austin. She is a member of the Beijing Lawyers Association's Foreign-related Talent Pool. Her practice focuses on international trade remedies, WTO dispute settlement, supply chain compliance, and international investment, with over a decade of experience. She has represented Chinese enterprises in more than 100 trade remedy cases across over 20 countries and regions, including the EU, the US, Canada, and Australia, covering industries such as steel, chemicals, tires, and food products, frequently achieving zero or minimal duty rates for her clients. She has been deeply involved in responding to emerging trade barriers like the EU Foreign Subsidies Regulation, the EU Deforestation Regulation, and the Uyghur Forced Labor Prevention Act (UFLPA), providing precise compliance solutions for companies. Additionally, she has long provided legal counsel to China's Ministry of Commerce, the China Council for the Promotion of International Trade (CCPIT), industry associations, and enterprises, contributing to aligning China's trade law practices with international standards.