Foreign imports that
are dumped or subsidized are considered ‘unfair’ when they cause injury to the
domestic producers. Under the World Trade Organization specific rules, members
are fully entitled to take unilateral action in the form of anti-dumping (AD)
or anti-subsidy (AS) measures, which may result in additional import duties on
targeted imports. The threat of injury determination enables earlier
intervention to protect the domestic industry. This article begins by examining
historical trends, noting that the growing use of threat-based injury
determinations reflects a policy shift toward a more anticipatory approach. The
AS case on Chinese electric vehicles (EVs) is a high-profile example of
increasing reliance on the ‘threat of injury’ standard, which emphasizes the
complexities of the ex-ante analysis. Our analysis focuses on the European
Commission’s (EC’s) main findings, both procedural (initiation, granting of
anonymity, use of post-investigation period data, sampling, use of facts
available) and substantive (subsidy calculation, lesser duty rule (LDR), threat
of injury, Union interest). Prior European case-law reminds us that whilst the
EC traditionally benefits from a broad discretion in complex economic matters,
further reinforced by the 2018 trade defence reform, it remains bound by
substantive and procedural requirements. Investigations in strategic industrial
sectors increasingly raise environmental considerations that the current AS
framework is ill-equipped to address. A more evolutionary application of the
Union interest test could better balance environmental objectives with
subsidization concerns – an approach which, if mirrored by other major
economies through the recognition of legitimate climate-oriented public
support, could ease geopolitical tensions.