Developments in PIL EU Legislation Normative texts

Political Agreement Reached at Council Level on the SLAPPs Directive

The Council of the European Union adopted on 9 June 2023 a political agreement on the proposal for a directive on the protection of persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as strategic lawsuits against public participation (SLAPPs).

Based on this common position, the Council will now start discussions with the European Parliament with a view to settling on the final text of the directive.

The text resulting from the Council’s general approach departs from the initial proposal (analysed by Marta Requejo in a previous post on this blog), in various respects. The suggested changes have been presented as underlying a concern for  more balanced solutions, and for increased discretion left to national courts, but have been criticised by some stakeholders as involving a watered-down compromise.

The most significant innovations include the following.

The Council, while agreeing that the future directive should apply only to matters with cross-border implications,  advocates the suppression of the provision in the Commission’s proposal that defined what matters should be considered to have such implications.

According to Article 4 of the proposal, a matter ought to be considered to have cross-border implications “unless both parties are domiciled in the same Member State as the court seised”. The proposal added that, where both parties are domiciled in the same Member State, the matter would still be deemed to have cross-border implications if (a) the act of public participation targeted by the SLAPP “is relevant to more than one Member State”, or (b) the claimant have initiated concurrent or previous proceedings against the same defendants in another Member State.

The rule providing early dismissal of manifestly unfounded claims should, according to the Council, be rephrased as follows: 

Member States shall ensure that courts may dismiss, after appropriate examination, claims against public participation as manifestly unfounded at the earliest possible stage, in accordance with national law.

The proposed rewording includes language that was not in the initial proposal (“after appropriate examination”, “at the earliest possible stage, in accordance with national law”). Conversely, the Council’s text fails to retain the paragraph in the initial proposal according to which “Member States may establish time limits for the exercise of the right to file an application for early dismissal”, provided that such time limits are “proportionate and not render such exercise impossible or excessively difficult”.

The Council further suggests the deletion of the provision in the proposal which asked Member States to “ensure that if the defendant applies for early dismissal, the main proceedings are stayed until a final decision on that application is taken”.

According to the Council, the provision on compensation in the Commission’s proposal should likewise be suppressed (arguably, because it was considered to be unnecessary, in light of the existing law). It read as follows:

Member States shall take the necessary measures to ensure thata natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm.

The Council also seeks to modify the wording of the provision in the initial proposal whereby Member States should deny recognition to judgments given in a third State in the framework of a SLAPP brought against natural or legal person domiciled in the Union. The amended version of the provision no longer refers to violation of public policy as the reason for non-recognition.

As regards jurisdiction, the text agreed by the Council retains the rule whereby those targeted by a SLAPP brought in a third State should be able to seek compensation in the Member State of the courts of their domicile, for the damages and the costs incurred in connection with the proceedings in the third country, but adds that Member States “may limit the exercise of the jurisdiction while proceedings are still pending in the third country”.

Finally, according to the Council’s general approach, the Member States should be given three years, instead of two as initially contemplated, to implement the directive in their legal systems.

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