Avoiding Anti-Dumping Duties: How to Challenge EU Implementing Regulations

Importing goods from China or other third countries has always carried regulatory risk. But few developments hit as hard – or as fast – as a new EU anti-dumping regulation. One implementing regulation comes into force, and overnight, duties of 60, 70, or even more percent land on every shipment, stacked on top of standard customs rates.

Recent months have seen a wave of such measures from the European Commission. One recent example: headless screws from China, now subject to a final anti-dumping duty of up to 72.3%. Even where proceedings were formally announced in the EU Official Journal, many businesses find themselves caught off guard by the commercial reality when the regulation actually bites.

The key thing to understand is that an EU anti-dumping regulation is not the final word. It can be challenged before the General Court of the European Union in Luxembourg – and for companies prepared to pursue that route, the options are more concrete than many realize: suspending the duty during live proceedings, recovering amounts already paid, and attacking the regulation itself on its legal merits.

Challenging Anti-Dumping Duties: The Preliminary Reference Procedure Under Article 267 TFEU

October 2024 brought a significant structural change to EU judicial proceedings. The Court of Justice of the European Union (CJEU) had been carrying an unsustainable caseload for years, with corresponding waiting times. In response, certain jurisdictions were formally transferred to the General Court of the European Union — including, expressly, questions relating to the Union Customs Code and the tariff classification of goods. Depending on the substance of a reference, it now goes to the General Court rather than the CJEU, with identical legal guarantees for all parties.

This matters because of one instrument in particular: the preliminary reference procedure. For importers looking to challenge an EU anti-dumping regulation on its merits and halt its enforcement, this is the most powerful tool available.

How the Preliminary Reference Procedure Works in Practice

The process, in broad terms, works like this. An importer contests a customs assessment before a German fiscal court. The court concludes that the outcome turns on whether the underlying EU regulation is actually lawful – a question no national court has the authority to resolve. The case is referred to Luxembourg, and the European court decides whether the regulation holds or falls.

A case currently pending before the CJEU shows exactly how this plays out. A company was importing two-part steel connectors from China – a nipple and sleeve assembly – designed to join flexible pump hoses to a pump or to other hoses. The customs authority assessed anti-dumping duty on the goods, classifying them under a tariff heading covered by EU Anti-Dumping Regulation (EC) No 803/2009. That regulation traces back to a 1994 investigation, in which the product under scrutiny was explicitly defined as fittings intended for the permanent joining of steel pipes.

The problem is clear. These connectors are structurally incapable of joining steel pipes. Their groove design is built for flexible hoses – applied to rigid pipes, it would cause leaks. The Hamburg Fiscal Court found that the imported goods had never been the subject of the original anti-dumping investigation, and that the duty had therefore never legally arisen. The customs authority appealed. In November 2025, the Federal Fiscal Court (Bundesfinanzhof) stayed the proceedings and referred two questions to the CJEU: whether the goods fall under the relevant tariff heading at all, and if so, whether anti-dumping duty under the 2009 regulation actually applies to them.

For importers of comparable goods, this case matters directly. It demonstrates that anti-dumping duties are sometimes applied to products that were never within the scope of the original investigation — and that challenging that application can succeed.

Grounds for Challenge: Where EU Anti-Dumping Regulations Are Most Vulnerable

EU anti-dumping regulations are shaped by political and economic pressure, and the Commission’s investigation procedures are genuinely complex. That complexity creates real vulnerabilities.

Errors in the injury assessment are among the most frequently litigated issues. The Commission is required to establish a causal link between dumped imports and the injury suffered by the EU industry. Where that causal link can be credibly challenged – for instance, because other market factors account for the price decline — the entire foundation of the duty comes into question.

Product definition is another consistent weak point. The CJEU has long held that anti-dumping measures can only apply to goods that were actually investigated and for which a dumping finding was made. Where new product variants or technically distinct versions are swept under an older regulation without clear support in the original notice of initiation, there is significant scope for challenge. This is precisely the issue the Federal Fiscal Court has put to the CJEU in its current reference.

Procedural errors round out the picture: inadequate involvement of interested parties during the investigation, deficiencies in access to the Commission’s file, or misapplication of the lesser duty rule.

Suspension of Enforcement and Repayment: The Strategic Advantages of Acting Early

The case for an active litigation strategy is not just about the end result. Some of the most valuable outcomes are available before proceedings even conclude.

While a case is pending before the General Court or the CJEU, it is possible to apply to the national fiscal court for suspension of enforcement. In practical terms, this means the customs assessment need not be paid in full while the legal question remains open. For businesses facing duty rates of 60 or 70 percent, that can make the difference between weathering the dispute and a serious liquidity crisis.

Ongoing preliminary reference proceedings may also create repayment potential. If the CJEU strikes down a regulation, duties already collected on that basis may be recoverable under national customs rules. Whether a repayment claim is ultimately enforceable depends on the specifics, including whether the Commission reopens proceedings and imposes new duties with retroactive effect. There is no automatic right to repayment. That is precisely why this question needs to be assessed early and built into the overall litigation strategy from the outset.

There is also a less obvious but real reputational and commercial dimension. An importer who is visibly willing to litigate at the highest European level occupies a meaningfully different position — in dealings with customs authorities and in commercial negotiations – than one who accepts assessments without challenge. Since October 2024, pleadings have been publicly accessible once proceedings close, adding further external weight to a well-run case.

Customs Law Advice from Schlun & Elseven

Schlun & Elseven advises and represents businesses at every stage of German customs law proceedings: assessing whether a regulation is open to challenge in a specific case, contesting customs assessments before German fiscal courts and the Federal Fiscal Court, and handling preliminary reference proceedings under Article 267 TFEU before the General Court of the European Union.

We have successfully represented clients in proceedings against EU anti-dumping regulations – from securing suspension of enforcement to recovering duty payments. If your business is facing anti-dumping duties, we will give you a clear assessment of whether a challenge is viable and which route offers the best prospects.