In a new twist, Trump also decided other partners can ask to negotiate with U.S. Trade Representative Robert E. Lighthizer to be excluded from the tariffs.
Conflict may loom ahead. After Trump’s initial tariff announcement last week, the European Union quickly threatened to hit back. E.U. Trade Commissioner Cecilia Malmstrom even laid out an explicit, three-pronged response to Trump’s tariffs, should U.S. steel and aluminum levies strike the European Union.
Here’s the E.U. plan, explained:
1) The E.U. is the second-largest foreign supplier of steel and aluminum to the United States, behind Canada
In 2017, the European Union exported $6.2 billion of steel and $1.1 billion of aluminum to the United States. But with Canada and Mexico off the hook, the E.U. will see a bigger share of the damage under Trump’s tariffs than initial estimates of more than $2.6 billion per year in lost trade.
Brussels is troubled about being caught up in tariffs imposed under Section 232 of the U.S. Trade Expansion Act of 1962, which allege the specific imports threaten U.S. national security. But most E.U. countries also are part of the North Atlantic Treaty Organization (NATO) — they are U.S. military allies. At the Thursday announcement, Trump hinted he might more favorably exclude those NATO countries from the tariffs that are “paying the bills.”
Second, global overcapacity of aluminum and steel is at the root of the Trump tariffs — and much of this production comes from emerging economies like China. But because the United States has already imposed so many special tariffs on China, only 6 percent of U.S. imports of steel and aluminum come from China. In Europe’s view, its companies also struggle from this excess global production. These companies now face a direct hit from Trump’s tariffs, while Chinese companies will see less impact.
2) The E.U. will take on Trump in the WTO dispute process
Malmstrom’s first step would be to challenge Trump’s “national security” tariffs through a formal World Trade Organization (WTO) dispute. If the E.U. wins and Trump refuses to remove the tariffs, the E.U. could be authorized to retaliate against U.S. exports.
However, even the idea of this dispute is a major headache for the WTO system.
Article XXI in the WTO and its predecessor — the General Agreement on Tariffs and Trade — seemingly permits countries to “self-judge” when and if to impose import restrictions to protect their national security. There have been few cases to predict how such an E.U. confrontation might play out legally.
Yet Trump’s own statements may give the E.U. grounds to challenge the new U.S. tariffs. At Thursday’s announcement, Trump referred to steel and aluminum imports arriving under “a process called dumping,” complaining that U.S. companies must compete with “cheap metal that is subsidized by foreign countries.” Allegations of subsidies and dumping fall under entirely different WTO trade laws — and this would undermine Trump’s own national security defense.
A WTO dispute could be a lose-lose for both sides, though. If the Trump administration wins, it opens a gaping hole in the WTO rule book for any country to impose trade restrictions under the national security justification. If Trump loses, he might react negatively and pull the United States out of the global trade agreement altogether.
3) Would the E.U. retaliate immediately?
Brussels’ second tack is to denounce Trump’s tariffs as a “safeguard measure in disguise.” Under WTO rules for safeguards, Article 8(3), the E.U. would then lay claim to more immediate compensation than it would be able to achieve by going through a lengthy WTO dispute.
In short, this means that if the U.S. imports of the steel or aluminum products weren’t actually increasing in absolute terms during the period that is the subject of Trump’s tariff investigation — then the E.U. doesn’t have to wait. The E.U. reportedly would seek compensation of 2.8 billion euros, or $3.4 billion.
Their argument may be that for some steel products — i.e., $3.4 billion of the $6.2 billion of 2017 E.U. exports — E.U. exports to the U.S. didn’t increase above 2016 levels. Without an increase, Trump’s 25 percent tariff to reduce those exports means Brussels is due compensation — a “rebalancing,” as Malmstrom put it. This would come from a new E.U. 25 percent tariff on the same, $3.4 billion amount of U.S. exports of products like cranberries, Harley Davidson motorcycles, blue jeans and bourbon.
Some legal scholars are skeptical that this E.U. approach would pass WTO muster if challenged. Yet, this is how compensation under the WTO typically works — retaliation is not punitive and there are no fines. Countries simply institute a reciprocal rebalancing of market access through changes to tariffs.
4) The E.U. may impose its own “safeguard” tariffs to address a new import surge
Malmstrom indicated that the third part of the E.U. response would be to initiate safeguard investigations of steel and aluminum that could quickly result in European trade restrictions that copy Trump’s. Her concern is that trade “deflected” out of the U.S. market — because Trump’s tariffs closed it down — surges into the E.U., imposing adjustment costs on European steel and aluminum industries.
This is a repeat of what happened in 2002. Immediately after President George W. Bush imposed a safeguard tariff on imports of steel, the E.U., China and other countries replicated with tariffs to prevent their own import surges. Meredith Crowley and I have documented instances in which trade policy has deflected trade, thus motivating such a policy response.
5) The E.U. had hoped to work with the U.S. on global steel and aluminum issues
Interestingly, Malmstrom, Lighthizer and Japanese trade minister Hiroshige Seko are scheduled to meet this Saturday in Brussels. At the December 2017 WTO ministerial meeting in Buenos Aires, the three issued a joint statement that they “shared the view that severe excess capacity in key sectors … are serious concerns for the proper functioning of international trade” and that “to address this critical concern, [they] agreed to enhance trilateral cooperation.” This was clearly a nod to addressing the common concern of China’s steel production.
Except now the European Union — along with Japan — is being asked to cooperate with Trump’s threat of tariffs hanging over their heads.