Examining the Doctrine of Causation in Anti-Dumping Investigations: An Analysis of the EU Court of Justice Interpretations in Case C-638/11

Abstract

This research paper assesses the interpretations of Article 3(7) of the basic regulation by the General Court and the EU Court of Justice in Case C-638/11. The study highlights that the broad and non-exhaustive nature of Article 3(7) has led to divergent interpretations by the two courts. The General Court’s approach, applying the ‘Mischief Rule’ of interpretation, suggests that institutions should distinguish between the injury caused by dumped imports and that caused by other known factors. The court further posits that the list of factors in Article 3(7) should be considered illustrative rather than definitive, thus necessitating an evaluation of all relevant factors, which can vary with each case. Conversely, the EU Court of Justice rejected the inclusion of legislative amendments, such as the grant of GSP status, as other known factors affecting the Union industry, arguing they should be assessed only in their impact on the dumped imports. The paper challenges this stance by asserting that legislative changes and GSP status should be recognized as significant factors under Article 3(7) because they directly impact the Union market. It is argued that the EU institutions should have conducted a non-attribution analysis considering these factors, given their known effect on trade dynamics. The findings reveal that the vague and broad language of Article 3(7) has led to inconsistent applications and interpretations. The paper concludes with a recommendation for a more detailed and comprehensive list of factors to enhance clarity and consistency in causal link analyses.