In this paper, the authors comprehensively analyse the legal implications of the much-dreaded 2018 US steel and aluminium tariffs by President Trump, which finally entered into force against the European Union on June 1, 2018. Ever since the tariffs were put into practice against many other WTO-members on March 23, 2018, the legality of the tariffs under WTO-law has been disputed especially by the European Commission. On the one hand, the US argued that its tariffs would be covered by the national security exception of the GATT, which would grant unfettered discretion to the US and could, in consequence, not be challenged by any contracting party before the dispute settlement body. The European Union, which for a long time supported this legal view in previous cases, recently has been interpreting the national security clause differently, now finds it to be reviewable in parts. At least a manifest abuse of the exception, as in the current case, could be assessed by the WTO dispute settlement body. Furthermore, the EU together with other WTO members has interpreted the 2018 US steel and aluminium tariffs as safeguard measures ‘in disguise’ and has announced to levy ‘compensatory measures’ against them. The paper outlines the relevant state-practice under GATT ’47 and the WTO Agreement in order to discuss the legal issues arising. The paper lays a focus on the legal assessment of the member states’ competence to interpret the invoked national security measures as safeguard measures ‘in disguise’ in general and in the current case and sheds light on its legal conformity under WTO law as well as on remaining legal uncertainties.
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