Second Meeting of the EAPIL Working Group on Anti-SLAPP Directive Transpositions – Report (Part II)
This post was written by Birgit van Houtert and Marco Pasqua, co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions, as report of the Working Group’s second meeting. This post follows up on the report (Part I).
The second meeting of the Working Group provided an overview of a selection of national transposition acts (both final and drafts) revealing convergences and divergences in the transposition of Articles 16 and 17 of Directive (EU) 2024/1069 (‘Anti-SLAPP Directive’) – the report of this first part is available here.
The meeting then continued with the open discussion, which moved from these findings, aiming to identify cross-cutting challenges and potential common solutions across Member States, mainly concerning the issues emerging from – and intertwined with – the transpositions of Article 16 of the Anti-SLAPP Directive. The discussion was moderated by the co-Chairs Birgit van Houtert and Marco Pasqua.
Open Discussion
The co-Chair and Working Group member for Italy Marco Pasqua (PhD, Catholic University of the Sacred Heart of Milan) highlighted two main divergent approaches in relation to the transpositions of Article 16. On the one hand, some Member States opted for the introduction of a specific provision; in these cases, the central issue lies in defining the respective scope of that positive transposition provision in comparison to the general public-policy ground for refusing recognition and enforcement. On the other hand, in those Member States that considered an express provision unnecessary, attention shifted to assessing whether – and to what extent – the general public-policy exception alone may sufficiently cover this area.
By contrast, regarding the transpositions of Article 17, a clearer convergence among Member States emerged: despite certain differences, most appear inclined to adopt an express provision, although with diverse solutions. The divergences also concern the discretion left by Article 17(2), particularly as to whether Member States choose to limit the exercise of jurisdiction under paragraph 1 while proceedings are still pending in the third-country.
This trend was further corroborated by the perspectives of the other Member States where a draft national transposition act is already in place and currently under development.
Birgit van Houtert (Maastricht University), co-Chair and Working Group member for the Netherlands, confirmed that the Netherlands follows the same approach as Germany and Poland with regard to the non-transposition of Article 16. She raised the concern about the interpretation of abusive proceedings as ground for refusal under Article 16, which has to be assessed on the basis of national law. According to Dutch case law, the threshold for establishing abusive proceedings is high. The Dutch legislator does not intend to codify the indicators for abusive proceedings as set out in Article 4 of the Directive. In contrast to the (draft) transpositions of the Member States that are already available, the Dutch draft act states that Article 17 does not require transposition, which leads to uncertainty, as argued in her previous post on the EAPIL blog.
The same applies to Sweden: although its Working Group member, Marie Linton (Uppsala University), was unable to attend the meeting, the questionnaire answers she provided indicate that the Swedish draft transposition act likewise does not include an explicit provision for Article 16, while it does for Article 17.
By contrast, Romania appears to follow the same path as Malta, as its draft transposition act provides two explicit provisions – one for transposing Article 16 and one for transposing Article 17.
Accordingly, Ioannis Revolidis (University of Malta), Working Group member for Malta, was invited to provide a deeper analysis of Malta’s approach – in particular, why Malta, the country where the Daphne Caruana Galizia story and case had such a formative impact on the push for the Anti-SLAPP Directive, chose to introduce an explicit transposition provision for Article 16. He was asked to explore the legislative rationale behind adopting a standalone and tailor-made refusal ground (rather than relying solely on the general public-policy clause), and to discuss the factual and policy considerations that may have driven the Maltese legislator to opt for a positive, express rule in this area.
A concern that emerged during the discussion was that, in Member States choosing not to introduce an explicit transposition provision for Article 16 and instead relying on the general public-policy clause, courts may lack guiding reference points, particularly in case law, to steer their decisions in such matters. Maciej De Abgaro Zachariasiewicz (Kozminski University Law School), Working Group member for Poland, intervened to illustrate this issue, noting that the most significant – and often the only – examples of case law dealing with the recognition and enforcement of third-country judgments typically link refusal to the legal remedy granted by the court (for instance, punitive damages), rather than to the underlying intent of the proceeding. In SLAPP contexts, however, the relevant criterion should be whether the proceeding is manifestly unfounded or abusive against public participation, highlighting a potential gap in judicial guidance where explicit Article 16 transposing provisions are absent.
Marco Buzzoni (University of Luxembourg – Luxembourg Centre of European Law), Working Group member for France, further emphasized that the discussion should not focus exclusively on the public-policy clause. He pointed out that, in practice, Member States differ in the grounds they have for refusing the recognition and enforcement of third-country judgments. France, for instance, provides additional grounds such as fraud, which can be equally relevant for the purposes of Article 16. Marco Buzzoni emphasized that, while the public-policy exception remains highly relevant, concentrating too narrowly on it could obscure the full range of legal mechanisms available across Member States, many of which may also play a crucial role in protecting individuals against abusive proceedings targeting their participation in public debate.
Susanne Lilian Gössl (University of Bonn), Working Group member for Germany, stressed that relying solely on the public-policy clause may not always suffice; an explicit provision for transposing Article 16 provides a more reliable mechanism to guarantee the objectives set out in Article 16 are fulfilled.
Edyta Figura-Góralczyk (Cracow University of Economics), Working Group member for Poland, reinforced this point, highlighting that in the specific context of grounds for recognition and enforcement of third-country judgments – an area not harmonized at the EU level – an explicit transposition is particularly important to aim for a consistent approach across Member States.
In this regard, it is worth recalling that such grounds for recognition and enforcement of third-country judgments are precisely the focus of the 4th Project of the EAPIL Young Research Network, whose outcome is about to be published. Through a country-report methodology, the project examines the rules of 21 EU Member States in a structured way. The emerging points of convergence and divergence form the basis of a comparative report, offering an overview of the current legal framework on the recognition and enforcement of non-EU judgments across the European Union.
Maciej De Abgaro Zachariasiewicz then intervened, noting that Article 16 of the Anti-SLAPP Directive addresses both the grounds for refusal of recognition and enforcement of third-country judgments that are abusive and those that are manifestly unfounded. Under Article 16, the law of the Member State in which recognition or enforcement is sought determines the abusiveness or manifest unfoundedness of the proceedings concerned. However, while Article 4(1) of the Anti-SLAPP Directive harmonises the notion of abusive court proceedings against public participation, the notion of manifestly unfounded proceedings remains outside the Directive’s harmonisation scope. Consequently, even where Member States adopt explicit provisions transposing Article 16, uniformity across Member States may still be compromised due to these differences in the scope of the notions of proceedings concerned, which directly impact the operability of Article 16 itself.
In response, Susanne Lilian Gössl agreed, but noted that precisely because of this “dual layer of uncertainty” – both regarding the interpretation of the public policy exception in SLAPP cases and the interpretation of ‘manifestly unfounded and abusive proceedings’ – clarity becomes even more crucial. Double uncertainty does not make things better; it simply makes the legal landscape less predictable for everyone involved. While it is always possible to draft broader or more flexible provisions, the key objective should be to reduce uncertainty as much as possible. A clear (and positive transposed) provision, she argued, also has a preventive effect: if potential litigants are aware that a specific rule exists and can be easily invoked, abusive proceedings may be discouraged at the outset. Of course, some interpretative work will remain necessary – notably in defining what constitutes “abusive” conduct – but this task is still more manageable than leaving courts with no explicit provision at all and forcing them to rely on public policy clause and general principles of domestic legal systems. In this sense, explicit transposition of Article 16 may not solve every difficulty, but it provides a concrete point of reference and contributes to a more structured and foreseeable legal framework.
In the same vein, the discussion was further complemented by Jachin Van Doninck (Vrije Universiteit Brussel), Working Group member for Belgium. who provided the current perspective in Belgium, and by Artur Doržinkevič (Mykolas Romeris University), Working Group member for Lithuania, who shared insights on the Lithuanian draft transpositions of Articles 16 and 17 of the Anti-SLAPP Directive.
Madeleine Petersen Weiner (Higher Regional Court of Berlin), Working Group member for Germany, recalled that the historical roots of protections against SLAPP can be traced back to the US Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), which was primarily designed to secure safeguards in the context of defamation judgments making foreign libel judgments unenforceable in US courts. These protections were culturally sensitive and focused on reputational harm, rather than addressing abusive litigation per se. In contrast, Article 16 of the Anti-SLAPP Directive targets the abusive nature of proceedings specifically. She emphasized that if this provision is transposed in more general terms – for example, relying solely on a public-policy exception – the distinctive SLAPP-focused dimension may be lost, potentially exposing the measure to similar critiques historically associated with the US SPEECH Act.
The co-Chairs then concluded the meeting by thanking all speakers and participants for the lively and comprehensive debate, as well as for the thoughtful questions raised and thoroughly discussed throughout the session.
The co-Chairs invited Working Group members to keep monitoring developments in their respective Member States. The Working Group looks forward to continuing this important joint work.