Explanatory Memorandum to COM(2022)177 - Protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)177 - Protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic ... |
|---|---|
| source | COM(2022)177  |
| date | 27-04-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Manifestly unfounded or abusive court proceedings against public participation (commonly referred to also as strategic lawsuits against public participation or ‘SLAPPs’) are a recent but increasingly prevalent phenomenon in the European Union. They are a particularly harmful form of harassment and intimidation used against those involved in protecting the public interest. They are groundless or exaggerated court proceedings typically initiated by powerful individuals, lobby groups, corporations and state organs against parties who express criticism or communicate messages that are uncomfortable to the claimants, on a matter of public interest. Their purpose is to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Unlike regular proceedings, SLAPPs are not initiated with a view to exercising the right of access to justice and the purpose of winning the legal proceedings, or obtaining redress. Instead, they are initiated to intimidate the defendants and to drain their resources. The ultimate goal is to achieve a chilling effect, silence the defendants and deter them from pursuing their work.
Typical targets of SLAPPs are journalists and human rights defenders. This extends beyond individual persons to media and publishing houses and civil society organisations, such as those involved in environmental activism. Other persons engaged in public participation such as researchers and academics may also be targeted.
A healthy and thriving democracy requires that citizens are able to participate actively in public debate without undue interference by public authorities or other powerful interests. In order to secure meaningful participation, citizens must be able to access reliable information, which enables them to form their own opinions and exercise their own judgement in a public space in which different views can be expressed freely.
Journalists have an essential role in facilitating public debate and in imparting information, opinions and ideas. They need to be able to conduct their activities effectively to ensure that citizens have access to a plurality of views in European democracies. Investigative journalists play a key role in combating organised crime, corruption and extremism. A robust system of safeguards is needed to enable them to fulfil their crucial role as watchdogs on matters of legitimate public interest. Their work carries particularly high risks and they are experiencing a growing number of attacks and harassment. Human rights defenders have a critical role to play in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. They should be able to participate actively in public life and make their voice heard on policy matters and in decision-making processes without fear of intimidation.
Imbalance of power between the parties with the claimant having a more powerful position than the defendant - for example financially or politically - is often a characteristic of SLAPPs. While it is not always the case, where present such an imbalance of power contributes significantly to the potential of SLAPPs to produce harmful consequences for the targets, with chilling effects for public debate as a result. SLAPPs can have a deterrent effect also on other potential targets, who may decide not to assert their right to investigate and report on issues of public interest. This risks leading to self-censorship.
SLAPPs constitute an abuse of court proceedings and put unnecessary burdens on courts. SLAPP-initiating entities and individuals can base their claims on various grounds. The allegations often relate to defamation, but they also relate to breaches of other rules or rights (e.g. data protection or privacy laws). These are often combined with damages/tort claims or at times injunctions (prohibiting or at least delaying publication).
Contents
- The prevalence of SLAPPs has been identified as a matter of serious concern in some Member States in the context of the 2020 and 2021 Rule of Law Reports
- Objective of the proposal
- European Democracy Action Plan
- Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union
- Rule of Law Reports
- Whistleblower Protection Directive
- EU Action Plan on Human Rights and Democracy 2020-2024
- EU Human Rights Guidelines on Freedom of Expression online and offline
- The Aarhus Convention
- Communication on Combating Environmental Crime
- Detailed explanation of the specific provisions of the proposal
- A non-exhaustive list indicates the most common indicators of abuse, such as
- b) an early dismissal of manifestly unfounded court proceedings in accordance with Chapter III;
The prevalence of SLAPPs has been identified as a matter of serious concern in some Member States in the context of the 2020 and 2021 Rule of Law Reports
The Council of Europe’s Platform to Promote the Protection of Journalism and Safety of Journalists 1 also reports an increasing number of alerts of serious threats to the safety of journalists and media freedom in Europe, including multiple cases of judicial intimidation. The 2021 annual Report of the partner associations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists underlines the notable increase of SLAPP-related alerts reported in 2020 over the previous year, both in numbers of alerts and jurisdictions of Council of Europe member states concerned 2 . More broadly, information collected on the European Media Pluralism Monitor 3 also shows a deterioration in journalists’ working conditions. In 2021, the Media Freedom Rapid Response (MFRR) documented 439 alerts (with 778 persons or entities related to media being attacked) in 24 EU Member States in 12 months, including SLAPPs. 4
While more data is available on threats of SLAPPs against journalists and human rights defenders, other actors engaged in public participation, such as trade union activists and academics, are facing similar problems. This was signalled in a number of civil society contributions received in the open public consultation.
Many SLAPPs occur in domestic context and do not have cross-border implications. However, SLAPPs often have a cross‑border nature and where cross-border implications exist, they add an extra layer of complexity and costs, with even more adverse consequences for defendants. The fact that online media content is accessible across jurisdictions may open the way for forum shopping and hamper effective access to justice and judicial cooperation. Defendants may face multiple court proceedings at the same time and in different jurisdictions. The phenomenon of forum shopping (or libel tourism) is a factor amplifying the problem and some jurisdictions are perceived as more claimant-friendly. The effect is even stronger when SLAPPs are launched outside the European Union.
This proposal is one of the actions under the European Democracy Action Plan that aim to strengthen media pluralism and media freedom in the European Union. The initiative encompasses also human rights defenders, who play a key role in our democracies and who are also increasingly vulnerable to such abusive forms of harassment.
The proposal aims to protect targets of SLAPPs and prevent the phenomenon from further expanding in the EU. Currently, none of the Member States has specific safeguards against such proceedings and only a few are currently considering the introduction of specific safeguards. There are also no EU-wide rules that address SLAPPs. By developing a common EU understanding on what constitutes a SLAPP and by introducing procedural safeguards, the proposal aims to provide courts with effective means to deal with SLAPPs and targets with the means to defend themselves.
The proposed procedural safeguards apply in cases with cross-border implications. As underlined above, a cross-border dimension of SLAPP cases adds to the complexity and challenges faced by defendants. Protecting EU citizens and civil society from SLAPPs initiated in third countries is another goal of the proposal.
Commission Recommendation protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)
This proposal for a Directive and the Commission recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) 5 , adopted at the same time, are complementary and fully consistent.
The Recommendation invites Member States to review their national situation to ensure that their applicable legal frameworks provide for the necessary safeguards to address SLAPPs in full respect of fundamental rights, including the right to freedom of expression, the right to access to justice and the right to the protection of personal data and democratic values. Member States are also encouraged to include in their national laws similar safeguards for domestic cases as those included in Union instruments that seek to address manifestly unfounded or abusive cases for civil matters with cross-border implications. Member States are recommended, inter alia, to abolish prison sentences for defamation cases, and favour the use of administrative or civil law rather than that of the criminal law to deal with such cases, provided that the relevant provisions have a less punitive effect and that the administrative rules exclude any form of detention.
The Recommendation also covers aspects related to the training of legal professionals and potential targets to improve their knowledge and skills to effectively deal with SLAPPs, awareness raising in particular aimed at enabling journalists and human rights defenders to recognize when they are facing a SLAPP, support to targets of SLAPPs (e.g. financial or legal assistance) and a more systematic monitoring and data collection.
• Consistency with other Union policies
On 3 December 2020, the Commission issued a European Democracy Action Plan, 6 which announced a set of measures to strengthen media freedom and media pluralism, including the SLAPP initiative and a recommendation on the safety of journalists referred to below. That Action Plan is the umbrella-initiative aimed to empower citizens and build more resilient democracies across the EU.
Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union
As highlighted in the European Democracy Action Plan, SLAPPs are often used in combination with threats to the physical safety of journalists. On 16 September 2021, the Commission adopted a Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union. 7
That Recommendation aims to ensure safer working conditions for all media professionals, free from fear and intimidation, whether online or offline. It lays down actions for Member States to improve the safety of journalists. It also calls for the creation of independent national support services, including helplines, legal advice, psychological support and shelters for journalists and media professionals facing threats. It also calls for an increased protection of journalists during demonstrations, greater online safety and particular support to female journalists.
Strategy to strengthen the application of the Charter of Fundamental Rights of the European Union (“Charter”)
This proposal complements and is fully in line with the Strategy to strengthen the application of the Charter of Fundamental Rights of the EU 8 , adopted on 2 December 2020. This Strategy recognises that civil society organisations and human rights defenders are vital for a healthy democracy and a society where people can enjoy their fundamental rights. Therefore, it sets out actions to, inter alia, support and protect civil society organisations and human rights defenders. In particular, the Strategy recognises that those actors are facing challenges in some Member States, which include smear campaigns, physical and verbal attacks, intimidation and harassment including via SLAPPs.
In the Strategy, the Commission invited Member States to promote a supportive and safe environment to civil society organisations and human rights defenders in their country, including at local level.
The present proposal creates one more building block to strengthen fundamental rights in the European Union and supports one of the objectives of the Strategy.
The Commission’s 2020 9 and 2021 10 Rule of Law Reports provide evidence on the emergence of SLAPPs in the European Union. The reports underline that in a number of Member States, journalists and human rights defenders increasingly face threats and attacks, both physical and online, in relation to their publications and their work, in various forms including the deployment of SLAPPs.
This proposal does not affect the protection already provided by Directive on the protection of persons who report breaches of Union law 11 and is fully consistent with it. The effective protection of whistleblowers against retaliation is essential for defending the public interest, and also for safeguarding the watchdog role of media in democratic societies, as whistleblowers are often an important source for investigative journalism. Directive 2019/1937 provides robust protection to persons reporting information on breaches of Union law against any form of retaliation, both within and outside the work-related context, including retaliation through proceedings such as related to defamation, breach of confidentiality and personal data protection. In situations falling within the scope of both this proposal and of Directive 2019/1937, the protection offered by both acts should apply.
The Action Plan 12 contributes to the safety and protection of journalists and media workers around the world, including by working on an enabling environment for freedom of expression and by condemning attacks and other forms of harassment and intimidation both online and offline. It addresses specific threats faced by women journalists, ensures that those harassed, intimidated or threatened receive assistance via the EU human rights defenders protection mechanisms and supports media initiatives. It appeals to state authorities to prevent and condemn such violence and to take effective measures to end impunity.
Protection of journalists and human rights defenders is at the core of the EU's external human rights and democracy action, in line with the Action Plan. This proposal is in synergy with the strong efforts led by the EU around the world in this regard and will provide additional impetus for further targeted support to human rights defenders and journalists facing SLAPPs.
The guidelines 13 specify that the EU will work against arbitrary attacks, indiscriminate abuse of criminal and civil proceedings, defamation campaigns and excessive restrictions on journalists, media actors, NGOs and social media personalities launched with the aim of preventing these associations and individuals from freely exercising their right to freedom of expression.
The Union and its Member States are Parties to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’) 14 each with its own as well as shared responsibilities and obligations under that Convention. Article 3(8) of this Convention requires each Party to ensure that persons exercising their rights in conformity with the provisions of the Convention should not be penalized, persecuted or harassed in any way for their involvement. The inclusion of environmental defenders in the scope of this proposal contributes to the implementation of this international obligation undertaken by the Union.
In its Communication adopted on 15 December 2021, the Commission has committed that a proposal for legislation against abusive litigation targeting journalists and rights defenders will include environmental defenders. 15
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for this proposal is Article 81(2) of the Treaty on the Functioning of the European Union (TFEU), which is the regular legal basis for judicial cooperation in civil matters having cross-border implications. More specifically, the legal basis is Article 81(2)(f) TFEU, which empowers the European Parliament and the Council to adopt measures aimed at ensuring “the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules of civil procedure applicable in the Member States”. Since SLAPPs constitute an obstacle to the proper functioning of civil proceedings, the Union is competent to legislate on that basis in civil matters having cross-border implications. SLAPPs are an abuse of civil proceedings because their aim is not access to justice but harassment and silencing of defendants. At the same time, long proceedings create additional burdens to national court systems.
The rules concerning third country judgments in Chapter V are also based on Article 81(2)(f) since they are incidental to the main purpose of this proposal. They ensure the effectiveness of the rules of this proposal against manifestly unfounded or abusive court proceedings on account of public participation by preventing that such cases are brought before the courts of third countries.
• Subsidiarity (for non-exclusive competence)
SLAPPs are emerging in many Member States and becoming an EU-wide problem. At the same time, none of the Member States currently provides for specific safeguards against SLAPPs. 16 While, depending on national law, some existing general safeguards may be used against SLAPPs, such general safeguards substantially vary across Member States and their effectiveness to address SLAPPs is limited. Furthermore, the existing divergences in national procedural laws risk increasing forum shopping and multiple court proceedings being initiated in different EU jurisdictions. Evidence shows that national civil procedural law is not always well equipped to deal with the additional complications arising out of the cross-border proceedings. 17 The divergences in national laws also make it highly unlikely that the Member States acting individually would successfully tackle the phenomenon or be able to ensure overall coherence of such rules across Member States to ensure an equally high standard of protection across the Union.
To tackle these risks and to avoid burdening national courts with multiple and lengthy abusive court proceedings, it appears necessary to set minimum standards and ensure compatibility of the rules of civil procedure applicable in the Member States against SLAPPs. Action at EU level helps to combat the emergence and growth of SLAPPs throughout the EU in a consistent manner and ensure convergence in Member States’ approaches to the phenomenon. 18
EU action would add value also by providing safeguards to tackle SLAPPs from third countries in an effective way. Joint action from the Member States is needed also to fight against SLAPPs from third countries because otherwise claimants may seek to benefit from divergence of systems between Member States and seek the recognition and enforcement of third-country SLAPP judgments where it can be most easily obtained.
The proposal respects the principle of subsidiarity by proposing only targeted safeguards and limiting the legislative action to what is strictly necessary to achieve what Member States cannot achieve by acting alone.
• Proportionality
Action at EU-level should be targeted and limited to what is necessary to ensure consistency in approach in the Member States in relation to cross-border situations. The proposal is designed to respect the principle of proportionality. This is the reason for proposing only well-targeted procedural safeguards. These are designed to provide only what is necessary in order to ensure a better functioning of cross-border civil procedures in case of SLAPPs, which form a serious threat to European democracy and rule of law.
Proportionality is also illustrated by the fact that many of the elements aimed to tackle SLAPPs will be provided as non-legislative measures in a recommendation and not by legislative action.
• Choice of the instrument
The selected legislative instrument is a directive, which will provide for binding and consistent procedural safeguards in the Member States. This will prevent existing divergences in safeguards between Member States, which risk leading to forum shopping across the borders. At the same time, the choice of a directive will allow the Member States to fit the specific procedural safeguards to their national civil and procedural law, which still vary considerably between Member States.
The directive will be complemented by a non-legislative instrument (a recommendation). This provides an efficient combination of legislative and non-legislative action.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
In the stakeholder consultations, input and comments were received from a wide range of key stakeholders representing EU and non-EU citizens, national authorities, legal professionals such as judges, academics, research institutions, NGOs and other relevant interest groups.
The consultations involved an exploratory technical focus group discussion in March 2021 with a selected number of participants that included four targets of SLAPPs, who agreed to share their personal experience, provided useful insights on SLAPPs and helped in the preparatory phase.
An open public consultation 19 collected from 4 October 2021 to 10 January 2022 views of citizens, journalists, Member States, NGOs, civil society, judges, legal professionals and other stakeholders on SLAPPs and what action should be taken to tackle them in the EU.
A targeted consultation of national judges from 12 November 2021 to 10 January 2022 20 via the European Judicial Network in civil and commercial matters sought more detailed feedback on identification of SLAPPs, potential procedural shortcomings, already existing (albeit non-SLAPP specific) national remedies, awareness of judges on SLAPPs and judges’ training needs.
A technical meeting with Member States experts in October 2021 gathered insights on Member States’ views (including from Member States’ independent bodies and authorities) on whether and what type of EU-level action could be needed against SLAPPs, what judicial remedies (if any and general or specific) and what kind of support is currently available at national level to targets of SLAPPs.
A workshop with selected stakeholders in November 2021 provided a forum for discussion on the dimension of SLAPPs, collecting information, discussing and testing possible solutions.
The Commission’s preparatory work took into account the evidence gathered by the European Parliament during the preparation of its own-initiative report on the matter adopted at the end of 2021.
The feedback from the stakeholders, in particular in the open public consultation and in the stakeholder meeting showed strong support for EU-wide action against SLAPPs, both legislative and non-legislative. The EU-wide organisations reported that SLAPPs are on the rise in the EU, including cross-border cases. The opinions expressed in the public consultation also stressed the importance of training and awareness raising on SLAPPs, the benefits of collecting data and need of proper monitoring of SLAPPs.
Feedback from the public consultation and stakeholder meeting also provided important evidence on the phenomenon in the EU, which was taken on board in the Staff Working Document 21 accompanying this proposal.
Most Member States signalled support for EU action against SLAPPs, flagging the need to protect freedom of expression and information and media freedom, while preserving the balance between protective anti-SLAPP measures and access to justice. Some Member States pointed to a lack of evidence of SLAPP cases, in particular with a cross-border dimension, as a phenomenon of concern in their country.
The targeted consultation of national judges revealed that there is no legal definition of a SLAPP or SLAPP-specific system of safeguards in the Member State of respondents although some of the existing national general safeguards can in principle be used in SLAPP-cases.
The European Parliament adopted an own-initiative report on SLAPPs on 11 November 2021 22 calling upon the Commission to present a comprehensive package of measures against SLAPPs, including legislation.
The Commission has also commissioned studies in order to develop a better understanding of the phenomenon in the EU and a first mapping of the situation in the Member States. This first mapping provided insights on SLAPPs and their drivers. 23 The second study was a more in-depth comparative study assessing in detail the current state of play in the Member States. 24
• Collection and use of expertise
To prepare the SLAPP initiative the Commission set up an Expert Group 25 in 2021. The group comprised of academics, legal professionals and representatives of media and civil society. The group’s mandate was to provide legal expertise on SLAPPs, act as a platform at EU level to exchange best practices and knowledge and, where possible, assist targets of SLAPPs. A specific legislative sub-group within the expert group was created in autumn 2021 to assist the Commission in the preparation of the legislative proposal.
• Staff Working Document
This proposal is accompanied by a Staff Working Document 26 , which presents the rationale, analysis and evidence available to underpin the proposal. There is no Impact Assessment accompanying the proposal, as this proposal will provide targeted procedural safeguards and will not generate significant quantifiable costs. In contrast, it will provide national courts with more adapted means to stop attempts to misuse judicial procedures and avoid the related costs that such misuse can cause to the judicial system. Moreover, as SLAPPs endanger fundamental rights of freedom of expression and freedom of information, it is of crucial importance to take strong and swift action to prevent that this harmful phenomenon, which has emerged relatively recently but is increasingly present, expands further in the EU.
• Fundamental rights
The proposal promotes the protection of fundamental rights in the European Union. Journalists, human rights defenders and other target groups benefiting from the proposed procedural safeguards play an important role in European democracies, especially in upholding public debate, fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. At the same time, procedural law plays a key role in guaranteeing the effectiveness of fundamental rights in accordance with the Charter.
The right to freedom of expression and information as set forth in Article 11 of the Charter includes the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. While it is not an absolute right, any limitations thereto must be provided for by law, respect the essence of such right and be enacted only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others (Article 52(1) of the Charter).
At the same time, the proposal ensures the balance of access to justice as guaranteed in Article 47 of the Charter and personality/privacy rights under Articles 7 and 8 of the Charter with the protection of freedom of expression and information. The procedural safeguards are carefully targeted and leave the court sufficient discretion in individual cases to maintain the delicate balance between speedy dismissal of manifestly unfounded claims and effective access to justice.
4. BUDGETARY IMPLICATIONS
This proposal will not have implications for the budget of the European Union.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The implementation of the Directive in the Member States shall be facilitated by the Commission providing transposition assistance to ensure a smooth implementation in the Member States, organising at least one transposition workshop and organising bilateral meetings including on demand by Member States. Member States will also be invited to notify their national transposition measures.
The operation of the Directive shall be reviewed 5 years after its entry into application.
• Explanatory documents (for directives)
This proposal does not require specific explanatory documents.
The Directive consists of four distinct main parts: common rules on procedural safeguards (Chapter II), early dismissal of manifestly unfounded court proceedings (Chapter III), remedies against abusive court proceedings (Chapter IV) and protection against third-country judgements (Chapter V). The provisions contained in Chapter I and VI are horizontal in scope.
Chapter I General provisions: this chapter contains provisions on the subject matter and scope of the instrument, some definitions and a provision about when a matter is considered to have cross-border implication for the purpose of the Directive.
Article 1 indicates the subject matter, clarifying that the specific safeguards provided by the Directive are meant to address manifestly unfounded or abusive court proceedings in civil matters with cross-border implications brought against both natural and legal persons on account of their engagement in public participation, in particular journalists and human rights defenders.
Article 2 defines the material scope of the Directive, which applies to matters of a civil or commercial nature with cross-border implications, whatever the nature of the court or tribunal. This includes civil claims brought in criminal proceedings but also interim and precautionary measures, counteractions or other particular type of remedies available under other instruments. As in other civil and commercial EU instruments, revenue, customs, administrative matters or the liability of the State for acts and omissions in the exercise of State authority are excluded from the scope. The notion of acta iure imperii includes claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders. Public authorities should therefore not be considered to be targets of SLAPP.
Article 3 provides the definition of public participation, matter of public interest and abusive court proceedings against public participation.
Public participation is broadly defined meaning any statement or activity expressed or carried out in:
1) the exercise of the right to freedom of expression and information, such as the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, commentary or satirical communications, publications or works, and preparatory, supporting or assisting action directly linked thereto;
2) the exercise of the right to freedom of association and peaceful assembly, such as the organisation of or participation to lobbying activities, demonstrations and protests or activities resulting from the exercise of the right to good administration and the right to an effective remedy, such as the filing of complaints, petitions or administrative and judicial claims and participation in public hearings, as well as preparatory, supporting or assisting action directly linked thereto.
In addition, it covers other activities meant to inform or influence public opinion or to further action by the public, including activities by any private or public entity in relation to an issue of public interest, such as the organisation of or participation to research, surveys, campaigns or any other collective actions, and preparatory, supporting or assisting action directly linked thereto. Preparatory actions are, for example, interviews made by an investigative journalist or an academic to prepare a statement, or information collected by an environmental defender. Supporting and assisting actions should be covered because claimants can bring court proceedings also against actors providing necessary supporting or assisting services such as internet connection or printing services with the objective to indirectly restrain the freedom of expression of the actual SLAPP target. Such preparatory, supporting and assisting actions need to have a direct and inherent link to the statement or activity in question.
On the other hand, public participation should normally not cover commercial advertisement and marketing activity (commercial speech).
Matter of public interest is also defined broadly, with reference to any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as, for example, public health, safety, the environment, climate, or enjoyment of fundamental rights.
The definition of abusive court proceedings against public participation refers to court proceedings, brought in relation to public participation that are either fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation.
the disproportionate, excessive or unreasonable nature of the claim or part thereof, the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters or intimidation, harassment or threats on the part of the claimant or his or her representatives.
Abusive court proceedings often involve litigation tactics used in bad faith such as delaying proceedings, causing disproportionate costs to the defendant in the proceedings or forum shopping. These tactics, which are used by the claimant for other purposes than gaining access to justice, are often, although not always, combined with various forms of intimidation, harassment or threats before or during proceedings, for the purpose of hindering public participation.
Article 4 specifies when a matter is considered to have cross-border implications.
For the purpose of this Directive, a matter is considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seized, which indicates that the matter is assumed to be purely domestic.
However, even where both parties to the proceedings are domiciled in the same Member State as the court seized, the matter shall be considered to have cross-border implications in two other types of situations.
1) The first situation is where the specific act of public participation concerning a matter of public interest at stake is relevant to more than one Member State. That includes for instance public participation in events organised by Union institutions, such as appearances in public hearings, or statements or activities on matters that are of specific relevance to more than one Member State, such as cross-border pollution or allegations of money laundering with potential cross-border involvement.
2) The second situation where a matter should be considered to have cross-border implications is when the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.
3) These two types of situations take into consideration the specific context of SLAPPs.
Chapter II Common rules on procedural safeguards: This Chapter contains horizontal provisions on the application for procedural safeguards, its content and other procedural features.
Under Article 5, an application can be filed for different types of procedural safeguards:
a) a security in accordance with Article 8;
c) remedies against abusive court proceedings in accordance with Chapter IV.
While the description of the nature of the statement or activity as an act of public participation should be an admissibility requirement, a description of supporting evidence should be considered appropriate, if no evidence has already been provided by the main claimant or is not otherwise available to the court. Member States may provide that the same measures can be taken by the court or tribunal seised of the matter ex officio at any stage of the proceedings.
Article 6 deals with subsequent amendments to claim or pleadings by claimants who deliberately withdraw or amend claims or pleadings to avoid awarding costs to the successful party. This legal strategy may deprive the court of the power to acknowledge the abusive nature of the court proceedings, leaving the defendant with no opportunity to be reimbursed for procedural costs. The provision ensures that any subsequent amendments to the claims or the pleadings made by the claimant, including the discontinuation of proceedings, do not affect the possibility for the court or tribunal seised of the matter to consider the court proceedings as abusive and grant award of costs, compensation of damages or penalties.
Article 7 provides that a court or tribunal seised in the matter may accept that non-governmental organisations safeguarding or promoting the rights of persons engaging in public participation may take part in proceedings, either in support of the defendant or to provide information. Member States should regulate the procedural requirements of intervention, possibly including time limits, in accordance with the procedural rules applicable to the court or tribunal seized of the matter.
Article 8 introduces the power for the court or tribunal to require the claimant to provide a security for procedural costs or for procedural costs and damages, when the court considers that even if the claim is not manifestly unfounded, there are elements indicating an abuse of procedure and the prospects for success in the main proceedings are low.
Chapter III Early dismissal of manifestly unfounded court proceedings: This Chapter deals with requirements and procedural safeguards to grant an early dismissal in court proceedings that are manifestly unfounded.
Article 9 states that early dismissal is granted when the claim brought against the defendant is, in full or in part, manifestly unfounded. If the main claim is dismissed later on in the ordinary proceeding, the defendant may still benefit from other remedies against abusive court proceedings, if elements of abuse are then recognised.
Article 10 provides that if the defendant applied for early dismissal, the main proceedings are stayed until a final decision on that application is taken. A stay of the proceedings initiated by the claimant ensures that procedural activity is suspended, hence reducing the procedural costs of the defendant. To avoid any impact on the effective access to justice, the stay should be temporary and kept only until a final decision on the application, which is no longer subject to judicial review, is taken.
Article 11 requires that an application for early dismissal is treated in an accelerated procedure, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial. To ensure high expediency in the accelerated procedure, Member States may set time limits for the holding of hearings or for the court to take a decision. They may as well adopt schemes akin to procedures in relation to provisional measures.
Article 12 introduces a special rule on the burden of proof: if a defendant has applied for early dismissal showing that the statement or activity constitutes an act of public participation, it shall be for the claimant to prove that the claim is not manifestly unfounded. This does not represent a limitation of access to justice, taking into account that the claimant carries the burden of proof in relation to that claim and only needs to meet the much lower threshold of showing that the claim is not manifestly unfounded in order to avoid an early dismissal.
Article 13 provides that a decision granting or refusing early dismissal should be subject to appeal.
Chapter IV Remedies against abusive court proceedings: This Chapter contains provisions on award of costs, compensation of damages and penalties.
Article 14 provides that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive
Article 15 ensures that any natural or legal person who has suffered harm as a result of abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm. This covers both material and immaterial damage. Material damage includes for example lawyer fees, when they are not reimbursable as costs, travel expenses and medical costs (for example for psychological assistance) if they are causally linked to the court proceedings. Pre-trial costs should be considered material damages, if they are not included in costs according to national laws. Immaterial damage covers different forms of physical and/or psychological harm. It includes, for example, pain and suffering or emotional distress related to the court proceedings, impairment of life or of relationship, reputational damage and in general, any types of intangible damage.
Article 16 provides for the possibility to impose effective, proportionate and dissuasive penalties on the party who brought abusive court proceedings against public participation. The main objective of this provision is to deter potential claimants from engaging in abusive court proceedings against public participation. Penalties will be paid to Member States.
Chapter V Protection against third-country judgements: This Chapter contains remedies to protect the defendant against abusive court proceedings brought in third countries’ courts.
Article 17 requires Member States to ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts of the Member State where recognition or enforcement is sought and those courts would have applied their own law.
Article 18 provides, as additional remedy against a third-country judgment, that where abusive court proceedings against public participationhave been brought against a natural or legal person domiciled in a Member State in a court or tribunal of a third country, that person can seek compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country. This provision creates a new special ground of jurisdiction in order to ensure that targets of abusive court proceedings who are domiciled in the European Union have an efficient remedy available in the Union against abusive court proceedings brought in a court or tribunal of a third country.
Chapter VI Final provisions: This Chapter contains rules on the relationship of the Directive with the 2007 Lugano Convention, on the review of the application of the Directive, on the transposition into national law, on entry into force and on Member States as addressees.