Lithuanian Court of Appeal Rules on Anti-SLAPP Procedures Related to Lawyers’ Professional Activities
This post has been written by Artur Doržinkevič, a PhD candidate and a lecturer at Mykolas Romeris University.
On 21 November 2024, the Lithuanian Court of Appeal issued a ruling in civil case No. e2-651-912/2024, which provided further clarification regarding anti-SLAPP procedures as they pertain to lawyers.
Although the case concerned domestic anti-SLAPP procedure, the courts also relied on the interpretation of the Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (the “SLAPPs Directive”), as an authoritative instrument for the interpretation of SLAPP procedures. Certain aspects of the case may be of value for further discussion on SLAPP procedures.
Background
Lithuanian anti-SLAPP rules were introduced before the adoption of SLAPPs Directive. The Lithuanian Code of Civil Procedure (CPC) was amended on 22 December 2022, with the amendments coming into force on 31 December 2022, introducing an anti-SLAPP procedure. Article 95(1) of the CPC, newly added by these amendments, provides that if a defendant considers that the claimant has brought an unfounded claim with the intent to impair the defendant’s activities related to the public interest, the defendant has the right to request dismissal of the action before it is heard on the merits.
Facts of the Case
In this case, UAB “ICOR” (the “Claimant”) filed a lawsuit seeking € 7.3 million in damages against a former Chancellor of the Ministry of Energy of Lithuania and three lawyers (the “Defendants”). Some of the Defendants previously represented, and some currently represent the Republic of Lithuania in proceedings before the International Centre for the Settlement of Investment Disputes (ICSID) and in another case pending before a Lithuanian court. These cases involve a € 240.7 million tort claim brought by the State against the Claimant and other companies, alleging that these companies received financial benefits at the expense of Lithuanian consumers.
The Claimant alleged that it was unjustifiably involved in this dispute and argued that the Defendants’ actions amounted to purposeful and deliberate conduct against the Claimant, exceeding the powers conferred upon them as representatives. According to the Claimant, it suffered reputational harm and financial losses after various commercial actors became aware that it had been sued by the State. As a result, these companies declined to enter into contracts with the Claimant, causing a loss of income.
The Defendants argued that the Claimant’s lawsuit constitutes a SLAPP and requested its dismissal under Article 95(1) of the CPC. They asserted that the lawsuit was intended to disrupt their work representing the Republic of Lithuania in other cases and to retaliate against them for performing their professional duties as lawyers or public officials.
It is important to note that the case did not involve cross-border implications as outlined in Article 5 of the SLAPPs Directive. Nevertheless, the parties and the courts relied heavily on the Directive, seeing no reason to differentiate the treatment of a SLAPP based on the presence or absence of cross-border implications.
Decision of the Vilnius Regional Court
The Vilnius Regional Court, acting as the court of first instance, held that there were no grounds to apply the anti-SLAPP procedure under domestic law. The court determined that the Defendants—lawyers and a civil servant acting on behalf of the State—could not be classified as proper targets of a SLAPP claim. Furthermore, the court concluded that the Defendants could not be considered the weaker party, as no imbalance of power existed between the parties.
The Defendants subsequently appealed the Vilnius Regional Court’s decision.
Assessment by the Lithuanian Court of Appeal
The Lithuanian Court of Appeal began by noting that the SLAPPs Directive was not yet directly applicable to the case (the transposition deadline is 7 May 2026), however, the Directive’s provisions were still deemed relevant and were taken into account when interpreting Article 95(1) of the CPC (para. 26).
The Court observed that both the domestic anti-SLAPP procedure and the SLAPPs Directive share the same objective. It concluded that the safeguards outlined in the Directive apply to natural or legal persons engaged in public participation activities, irrespective of their profession. Consequently, the fact that the Defendants are lawyers and a civil servant does not exempt them from being potential subjects of a SLAPP claim (paras. 27-31).
Although the Court stated that an “imbalance of power” is not a mandatory element for a SLAPP claim, it decided to assess this question in the present case. The Court explained that determining an imbalance requires considering not only the parties’ economic power but also their ability to defend themselves against the claim. Here, the claim brought by the Claimant did not prevent the Defendants from adequately defending themselves (paras. 31-33).
Another key issue raised was whether the acta iure imperii exception could be applied, given that the Defendants acted on behalf of the State in other proceedings. The Court rejected these arguments and, with minimal elaboration, stated that the present case did not fall within the scope of acta iure imperii (para. 34).
Finally, the Court stressed that the Defendants failed to prove that the Claimant’s action had disrupted their ability to participate in activities related to the public interest. The evidence showed that the lawyers continued to represent the State in other cases, indicating that the Claimant’s action did not impose a substantial burden on their professional activities. Consequently, the Court concluded that the claim could not be classified as a SLAPP action (paras. 31, 37, 43).
Discussion
As noted earlier, the Court relied on the provisions of the SLAPPs Directive, despite the case lacking cross-border implications. Nonetheless, the case under examination highlights several key aspects in interpreting the SLAPPs Directive.
The first issue pertains to the personal scope of the SLAPPs Directive. A major point of contention in this case was whether lawyers representing the State in actions seeking damages in tort could be targeted by a SLAPP claim. Notably, the Defendants were not human rights defenders per se. However, Article 4(2) of the SLAPPs Directive provides for a broad interpretation of public interest. Consequently, the lawyers’ conduct could be considered to fall within the Directive’s scope, even though the public interest was not rooted in traditional human rights activism (such as public health, the environment, consumer and labour rights, or similar fields).
The second issue concerns the acta iure imperii exception, which was largely unexamined in this case. Although there is little doubt that, in this situation, the original State’s lawsuit against the Claimant and other companies for tort damages is not directly related to the exercise of state authority, the case highlights a potential avenue to bypass this exception. Specifically, instead of suing the direct participant in the legal relationship—in this case, the State—the Claimant chose to sue the State’s lawyers, alleging that they were personally liable for causing the unlawful acts through purposeful conduct against the Claimant. This raises the question, whether the acta iure imperii exception could potentially be circumvented by attributing liability to the lawyers’ personal actions rather than to the actions of the State.
The third point addresses the absence of a chilling effect and an imbalance of power, both decisive factors in the decision to refuse applying the anti-SLAPP procedure. Firstly, regarding the chilling effect, while the lawyers’ activities were linked to public interest, the Court concluded that no such effect existed, since they were still representing the State in various proceedings. Secondly, concerning the imbalance of power, the Court determined that, given the lawyers’ legal expertise and their ability to defend themselves, no such imbalance was present. In the author’s view, the Court’s position on these issues is open to criticism. The Court could have further elaborated on the unique aspects of the legal profession in relation to the chilling effect and power imbalance. It is plausible that lawyers, due to their specialized knowledge, possess a “thicker skin,” making them less likely to withdraw representation in response to substantial claims against them. Additionally, the Court did not fully address other potential negative consequences of SLAPPs, such as financial and mental burdens, or the time and energy required to deal with such claims.
Lastly, to the Court’s credit, it is important to note that domestic anti-SLAPP procedure allows for only one specific remedy, i. e. the early dismissal of proceedings. If misapplied, this could lead to significant negative consequences. Therefore, the Court opted for caution, given that the application of anti-SLAPP procedure remains an exception rather than a general rule.
This case also highlights that, despite the existence of national and EU legislation addressing SLAPPs, courts remain conservative in applying these procedures. Consequently, their practical implementation continues to pose challenges.