First Meeting and Questionnaire of the EAPIL Working Group on Anti-SLAPP Directive Transpositions – Report
The authors of this post are Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions. The post is the result of the collective work of the members of the Working Group.
On 27 June 2025, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held its first online meeting, co-chaired by Birgit van Houtert and Marco Pasqua. The meeting brought together a wide array of participants, all sharing a strong commitment to the objectives of the Group.
The Working Group currently comprises 40 members from across the European Union, and this broad, EU-wide composition was emphasized as a key strength. It allows the Working Group to benefit from a rich diversity of legal cultures and procedural systems – an essential asset in addressing the challenges posed by the domestic transpositions of Directive (EU) 2024/1069, particularly its provisions on private international law and other procedural ones with private international law relevance.
After a warm welcome and brief round of self-introductions, which provided everyone with a better sense of the community being built, the co-Chairs offered an overview of the Working Group’s planned activities and timeline. Over the next months, the Group will engage in comparative research, discussion and outreach, with several milestones already outlined. Participants offered thoughtful input, which has already helped refine the direction of the Group’s work.
A central point on the agenda was the presentation of the draft questionnaire, result of a collective work which will serve as the main tool for assessing (draft and final) national transposition acts, including official accompanying materials, and for conducting comparative analysis.
The discussion highlighted a number of legal and practical issues that must be carefully monitored in the transposition phase of Directive (EU) 2024/1069. The exchange made it clear that several elements of the Directive raise complex interpretative questions. The questionnaire has also been supplemented by contributions from members received via mails.
The distinctive feature of this Working Group lies in its focus on private international law and, more broadly, on how private international law intersects with the safeguards introduced by the Directive.
A first area of focus concerns the scope of the Directive. It is important to verify whether Member States transpose the indicators of SLAPPs and the definition of “cross-border implications”. Some raise concerns about the risk of a fragmented approach, particularly where national legislatures choose to extend – or conversely to restrict – the application of the Directive beyond civil and commercial matters. While the Directive is limited to cross-border civil and commercial matters, both the European Commission, in Recitals 20 and 21 of Recommendation (EU) 2022/758, and the Council of Europe, in point 6 of Recommendation CM/Rec(2024)2, advocate that SLAPP safeguards should also apply in national, criminal and administrative procedures. In this regard, it is essential to observe whether Member States will voluntarily apply the safeguards of the Directive, or its principles, to purely domestic cases, or even to criminal and administrative proceedings. Such decisions significantly affect the coherence and reach of anti-SLAPP protection within the EU.
The core of the analysis is then devoted to the provisions of the Directive that specifically address private international law issues concerning recognition and enforcement, as well as jurisdiction.
A critical point of discussion is Article 16 of the Directive, which introduces grounds for refusing recognition and enforcement of third-country judgments when these link to manifestly unfounded or abusive proceedings. This provision plays a central role in bridging EU private international law with fundamental rights protection, and its national transposition requires particular attention. The Working Group will examine the need for specific provisions to give effect to this safeguard and the consistency of national definitions of “judgment”, as well as of “manifestly unfounded” claims and “abusive” proceedings. It is noted that Member States may adopt diverging thresholds and legal interpretations, potentially affecting legal certainty and mutual trust.
Article 17 is equally debated. This provision grants a special jurisdictional ground allowing SLAPP victims to seek damages before the courts of their Member State of domicile, where they suffer harm due to third-country proceedings initiated by claimants domiciled outside the EU. Members will report whether national legal systems require explicit legislative measures to activate this jurisdictional basis, or whether existing provisions suffice. Particular attention has to be paid to the law applicable to this compensation claim, the types of damage (financial, reputational, emotional) that should be compensable, the evidence and burden of proof on third-country proceedings, and how the rules on limitation periods and procedural suspension align with the Directive’s objectives.
In both areas – recognition and enforcement and jurisdiction – members of the Working Group will assess the degree of compatibility with existing national frameworks. They will consider whether ordinary national mechanisms can be adapted in light of the duty of uniform interpretation and the need to ensure the effet utile of EU law.
The conversation also touched upon a crucial gap in the Directive: the question of applicable law. Although the Directive does not directly address this issue, it has far-reaching practical consequences. For instance, Article 12 – which governs burden of proof and substantiation of claims – may be applied differently depending on whether the lex fori or the lex causae is used under national private international law rules. Without clear guidance, Member States adopt divergent approaches, leading to inconsistencies in how the Directive’s safeguards operate across the EU. This reveals a deeper tension between harmonized procedural rights and conflict-of-laws traditions.
Moreover, the issue of applicable law extends well beyond procedural matters, as it is also highly relevant to substantive aspects. The absence of EU-wide harmonization concerning conflict-of-law rules – for instance, on the law applicable to defamation claims – poses a serious threat to the effet utile of the Directive. In this regulatory gap, strategic choices regarding applicable law may be used to weaken or even delay the protective framework that the Directive seeks to establish. A key concern in this regard is whether claimants in SLAPP cases (potentially covering both contractual or non-contractual matters) might deliberately choose a law applicable which is difficult to ascertain, including for the purpose of the early dismissal assessment, thereby increasing the procedural and financial burden on the defendant. Without coordinated rules on applicable law, SLAPP claimants may engage in forum shopping not only for jurisdiction but also to benefit from more favorable substantive laws, thereby undermining the safeguards designed to protect public participation and freedom of expression. This highlights the urgent need to address the applicable law alongside the Directive’s procedural innovations. In this respect, the work carried out within the Working Group aligns closely with the objectives of the ongoing fifth project of the EAPIL Young Research Network. The latter initiative aims to shed light on the fragmentation of conflict-of-law rules in areas that remain outside the scope of the Rome II Regulation, such as defamation and other violations of personality rights. This synergy reflects a broader associative effort to promote coherent and comprehensive solutions to private international law challenges, fostering dialogue between the Group and the Network.
The analysis is further enriched by an examination of additional procedural aspects introduced by the Directive, which could be affected in cross-border contexts and raise important private international law considerations.
Particular attention is devoted to the legal nature and cross-border circulation of decisions on early dismissal under Article 11 of the Directive, specifically if decisions issued in other Member States have a preclusive effect under national law. Under Brussels I bis Regulation, a judgment does not need to be final to be recognized in another Member State. Nonetheless, if a party seeks to rely on the decision as having preclusive effect – e.g., to prevent the filing of subsequent claims concerning the same cause of action – the res judicata status must be assessed under the law of the Member State of origin. While not a requirement for recognition, res judicata may be crucial to avoiding fragmented parallel litigation, thus rendering it an important element in the analysis.
Additionally, the Working Group considers the extent to which national law allows foreign associations, organisations, trade unions and other entities to support the defendant in court proceedings, as provided for in Article 9 and Recital 35. The focus here is on whether the procedural and substantive conditions imposed by national legal systems enable such support on equal footing with domestic entities, or whether they create additional burdens – especially in cross-border cases – that risk undermining the Directive’s protective aims.
Finally, some additional aspects of the Directive deserve careful consideration and critical reflection.
Among these, the interaction with other legal instruments, as governed by Article 18, raises important questions about the consistency and clarity of national transposition measures. It remains unclear whether all Member States will expressly incorporate the safeguard clause into their domestic legal systems, and in several cases, doubts persist as to how its temporal scope – particularly the relevance of the cut-off date of 6 May 2024 – will be addressed in practice. The lack of explicit coordination with national private international law clauses may further complicate the practical application of this safeguard, especially in cross-border disputes.
Political and societal resistance has also emerged in certain contexts, often rooted in concerns about the potential chilling effect on legitimate claims, or fears that the Directive could unduly shift the balance in favour of defendants. These reactions highlight the delicate political economy of anti-SLAPP regulation, where freedom of expression, access to justice and legal certainty must be carefully reconciled.
Equally important is the awareness and preparedness of the judiciary. While Recital 49 of the Directive explicitly calls for training initiatives, the development of such programs should not be uneven across Member States.
Lastly, the monitoring and publication of judgments, mandated by Article 19, is a crucial tool for transparency and comparative analysis. However, it is not always clear whether mechanisms are in place to ensure timely and accessible publication of relevant decisions. In some countries, the obligation to publish judgments electronically may require additional legislative or administrative action, suggesting a potential disconnect between the Directive’s objectives and existing national infrastructures.
The timing and relevance of the Working Group go hand in hand. The meeting showed that the state of transposition across EU Member States is highly diverse: in some countries, a transposition act is already being drafted or discussed; in others, no draft act is available yet.
The meeting concluded with a brief preview of the upcoming activities, such as a webinar which will provide a further opportunity for dialogue with multiple stakeholders.