TRA must recommend a trade remedy even if economic test fails

Where the conditions for imposing a trade remedy are met, the Trade Remedies Authority (TRA) must recommend a definitive measure irrespective of whether the Economic Interest Test (EIT) is met.

The default should ordinarily be a four-year ad valorem duty for a safeguard measure or a five-year ad valorem duty for an anti-dumping or countervailing measure, unless the TRA considers another form of measure more appropriate to address the injury to United Kingdom industry.

The EIT still has to be done and explained.GOV In a new dumping or subsidy investigation where the TRA intends to recommend a definitive measure, it must assess the proposed measure and any alternative options against the EIT and set out its rationale in the Statement of Essential Facts (SEF). Its final recommendation must advise whether and why the recommended amount, and each alternative option, would meet the EIT. The recommendation itself is not conditional on the test being met.GOV

The same advisory structure applies at the provisional stage. Before recommending a provisional anti-dumping or countervailing amount, the TRA conducts the EIT and advises whether and why the measure during its period in force would meet the test. The Secretary of State must have regard to those conclusions but may impose a provisional measure irrespective of them. No alternative options are offered for provisional measures.

The TRA may offer alternative options in the SEF, the final recommendation and any reassessed recommendation, across definitive measures, early reviews, transition reviews, interim-review variations, expiry-review extensions and variations following an international dispute decision. It may do so for market volatility, on a reasoned submission that a different measure is more appropriate, for a shorter duration, or for any other relevant reason, weighing duty type, amount and duration. Interested parties and contributors may propose options with supporting information, which the TRA should consider and explain how it used. Options may change between the SEF and the final determination on later evidence, with reasons given and an opportunity to comment.

The Secretary of State keeps the final decision and may apply the preferred or an alternative option where in the public interest to do so, or take a different decision outside the recommendation, for example for national security or public health reasons. The Secretary of State may instead ask the TRA to reassess, including re-running the EIT, where relevant information was missed, there is an error, or exceptional circumstances apply, after consulting the TRA.

For importers, United Kingdom producers and advisers acting for interested parties, the practical point is that a weak EIT no longer points to no measureGOV, so SEF evidence should address duty form, amount and duration as well as economic interest.

The legal basis is the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 and the Taxation (Cross-border Trade) Act 2018, as amended including by Schedule 19 to the Finance (No. 2) Act 2023 and the Trade Remedies (Dumping and Subsidisation) (EU Exit) (Amendment) Regulations 2024.