Author Jens Munk Senior Director +45 27 29 47 66 jmu@jumbocg.com.com

Just before Christmas of 2021, the European Commission (“Commission”) has imposed a definitive anti-dumping duty on imports of certain utility scale steel wind towers (“SWT”) originating in the People’s Republic of China (“PRC”), that may add further cost to the supply chain of the WTG suppliers for both onshore and offshore wind in Europe.

The more than one-year long investigation by the Commission, was initiated by a claim lodged on 9 September 2020 by the European Wind Tower Association, containing sufficient evidence of dumping and of resulting material injury to the European industry of SWT.

The period of dumping and injury that was investigated by the Commission covered the period from 1st of July 2019 to 30th of June 2020. The Final Disclosure Document contains a thorough description of the Commission’s investigation and holds some interesting commercial information to market operators. The document is available at: https://trade.ec.europa.eu/tdi/case_details.cfm?id=2488

Procedure

An Anti-Dumping investigation usually considers the following key elements during the procedure:

  1. Determine the product concerned and like products,
  2. Price dumping from imports (Normal value, dumping margin)
  3. Injury to European industry (economic macro- and micro indicators)
  4. Causation between price dumping and injury
  5. Level of measures (Injury margin)
  6. European Union interest (Industry, importers, users, suppliers, environmental, other factors)

Based on the CN/TARIC codes used, the only product subject to the anti-dumping measures is the SWTs, and not transition pieces, nor monopiles or other large steel elements of the wind turbines, when installed either onshore or offshore.

As the Commission deemed the domestic PRC market to be significantly distorted, Mexico was chosen as the representative country for the “Normal value”. The comparison between Mexico and PRC still showed, that the price of SWTs from PRC was significantly lower.

Most of the economic indicators, show a significant impact to European Union producers during the investigation period, such as imported SWT from PRC, increased their market share from 25% to almost a third of all SWTs installed in Europe, and 80% of all imported SWTs to Europe. The average price of SWT’s manufactured in PRC, as they are imported to EU is stated at 1.151 EUR/tonne, whilst the average sales price by European Union producers is 1.419 EUR/tonne. The investigation even shows that for European Union producers the average cost of production was higher at 1.439 EUR/tonne, so they were selling at a loss, yet still not competitive with PRC imported SWTs.

The Commission also found that the increased import SWTs from PRC was causing injury to the European Union producers, and other factors such as demand, raw material prices and other factors did not attenuate the causal link between the dumped imports and the material injury, despite arguments primarily presented by WTG suppliers such as GE, Vestas and SGRE.

The injury margins set by the Commission ranges from 7.5% to 19.2% and this translates directly into a duty that shall be added to the net, free-at-European Union-frontier price.

Lastly it should be mentioned that the Commission found the anti-dumping measures to be in the European Union’s interest, despite a potential increase in total costs of developing wind farm projects in Europe in the amount 0,05% annually (estimated by the European Wind Tower Association).

The regulation of the duty entered into force on the 16th of December 2021 and shall be effective for all imports following this date. The European Commission has not set a specific expiry date for the duty, so it may be expected that it will remain effective for the general five-year period, unless an expiry review is conducted prior to this.

Contractual Implications

This newly imposed anti-dumping duty will in the first instance be a contractual issue between the WTG suppliers and their Chinese sub-suppliers of SWTs, however as a Procurement and/or Contract Manager acting on behalf of a wind farm project developer or a WTG supplier affected by the duty imposed, you should also take caution to act on this matter, both pre- and post-contract signing.

In the contract between the WTG supplier importing the SWTs to Europe and its Chinese sub-supplier, focus will most likely be on any Incoterms agreed and clauses such as “Payment of Duties and Taxes”, “Change in Law” or “Contract Price and Payment” provisions, and whether duties and tariffs are excluded or not, as this will determine who will bear the additional cost of the added duty imposed. If the parties have agreed to use Incoterm’s definitions, a reference to Delivered Duty Paid (“DDP”) would place the cost of the duty on the seller, whilst an Ex Works (“EXW”) reference would put the duty on the buyer. This may however be subject to other provisions in the contract to the contrary, making it a matter of interpretation and application of the contract.

An example if the customary “Change in law” provision that is often heavily negotiated pre-contract signing as it may shift significant risks between the Parties, most recently accentuated during the Covid-19 pandemic and the rapid implementation of new regulations between countries (noting that in these cases, force majeure provisions are also in play). By way of example, in some standard construction contracts, e.g. FIDIC Red Book 2017 ed., the change in law clause gives the Contractor the right to an adjustment of the Contract Price due to changes to tax, duties and tariffs after the Base Date, so take due care if any changes have been made during negotiating this clause.

Adapting the sourcing strategy and budget for future wind projects specifically to the new duty is also relevant but may prove tricky, as many different factors make up the price of the WTG contracts, such as the development in steel prices, capacity and demand in the marketplace, that may obscure the impact of the duty itself.

The Final Disclosure Document referred to above contains a lot of commercial information on the cost of the SWTs and the European and internal marketplace, that should be of interest to any Procurement Manager working in the renewables sector, when preparing the procurement strategy.

Based on the price points stated in the Final Disclosure Document as well as the imposed duty of an average of 10%, it is likely that we will see a price increase for PRC supplied SWTs for the European Union in general. Still PRC supplied SWTs may continue to be cheaper than SWTs produced in the European Union, so whether the quantity of PRC supplied SWTs for Europe will decrease and/or sales prices for SWTs from European Union based manufacturers goes up, the future will tell.


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