Hurdles to Litigating Trade Defence Measures Before the EU Courts

EU institutions often use trade defence measures to shield EU industries from competition. These measures come at the expense of importers and foreign exporting producers. The most feasible avenue for importers and exporting producers to obtain a practicable remedy is by challenging an adverse trade defence measure before the EU Courts. However, the EU Courts have adopted a strict approach to challenges to trade defence measures, which increasingly requires sophisticated litigation strategies to overcome multiple hurdles. First, the standing requirements to have a case admitted are stringent. Second, the burden to prove substantive or procedural errors in trade defence proceedings is high. Third, even if a case is successful, the EU Courts recognize that the EU institutions almost unbridled discretion in implementing judgments. These hurdles to litigating trade defence measures risk curtailing the role of the EU Courts in limiting the Commission’s powers in a way that maintains proper checks and balances. They also put on applicants the task to develop tools and arguments to address and overcome these hurdles.