Article: Annulment of Anti-dumping/Anti-subsidy Measures Imposed in Threat of Injury Investigations: Impact on Customs Cases in the European Union

Based on anti-dumping (AD) and anti-subsidy (AS) rules within the World Trade Organization (WTO), WTO members are fully entitled to take action unilaterally when ‘unfair’ imports (dumped or subsidized) cause injury to the domestic producers. In the European Union (EU), the imposition of AD and countervailing duties are based on Regulation 2016/1036 and Regulation 2016/1037, respectively, which mirror the WTO standards. The cumulative conditions for the imposition of AD or AS measures under the WTO rules are similar: 1) the existence of dumping or, respectively subsidization; (2) material injury; and (3) the nexus between dumped/subsidized imports and the damage inflicted to the domestic industry. The threat of injury claim forms the basis of a preventive mechanism that prompts the national investigating authorities to preemptively act before actual material injury is inflicted on the domestic industry. While the logic behind is that corrective measures shall be imposed before the damage is inflicted to the domestic industry, such ex-ante injury analysis remains complex and prone to errors. These errors, which are more susceptible to occur in a prospective analysis than in a ‘classic’ actual material injury one, may impact not only the exporting producers in the main AD/AS procedures, but also the rights of importers to subsequently challenge the validity of the protective measures via national courts, if they have locus standi. The author aims at examining the impact that the annulment of AD and AS measures based on a threat of injury claim may have on the national customs cases, in particular as regards the recovery of the duties paid by the EU importers. WTO, anti-dumping investigation, anti-subsidy investigation, countervailing measures, material injury, threat of injury, customs proceedings, recovery of duties, locus standi