Third 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 third meeting. This post follows up on the report (Part I).

The third meeting of the Working Group continued with an in-depth discussion structured around a case study, building on the insights emerging from the Swedish and Belgian contributions and from the overview of national transposition acts (both final and draft) of EU Member States – the report of this first part is available here.

The exchange, moderated by the co-Chairs Birgit van Houtert and Marco Pasqua, examined the protection against proceedings and judgments originating from third countries and addressed the safeguards provided through the early dismissal of manifestly unfounded claims.

The discussion was framed around a case in which an international non-governmental organisation brought proceedings before the court of a EU Member State against a U.S. company, which had previously initiated litigation in the United States against the organisation and its U.S. affiliate, alleging their involvement in protests against a major infrastructure project and seeking substantial damages.

3. On Which Grounds Could a Member State Court Refuse the Recognition and Enforcement of the Judgment Rendered by U.S. Courts Against the International Organization?

Question three requires examining the circumstances under which national courts may refuse recognition and enforcement of the judgments rendered by U.S. courts against the international organization. In particular, Article 16 of the Anti-SLAPP Directive establishes that Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings against public participation by a natural or legal person domiciled in a Member State is refused, if those proceedings are considered manifestly unfounded or abusive under the law of the Member State in which such recognition or enforcement is sought.

Marie Linton (Uppsala University), Working Group member for Sweden, explained that American judgments do not produce any legal effects in Sweden, meaning they do not have res judicata effect. Under Chapter 3, Section 2 of the Swedish Enforcement Code, which sets out special provisions for the enforcement of foreign judgments under EU law and international conventions, no specific provisions cover U.S. judgments. Consequently, the U.S. company would need to initiate a special review procedure before a Swedish district court, which examines the American judgment and proceedings as if acting in an appellate capacity relative to the U.S. court. In this procedure, the American judgment serve as evidence, but the Swedish court may issue a new, independent judgment for enforcement purposes. However, in SLAPP cases, the Swedish court would typically dismiss the claim if the foreign judgment is deemed manifestly unfounded or otherwise defective, rather than issuing a new judgment.

The Belgian perspective was then provided by Jachin Van Doninck (Vrije Universiteit Brussel), who presented materials prepared jointly with Cédric Vanleenhove (Ghent University), both Working Group members. Under the Belgian Code of Private International Law (CPIL), recognition and enforcement of U.S. judgments require an exequatur (Article 22, §1, first sentence CPIL) and are subject to verification of the refusal grounds set out in Article 25, §1 CPIL. A new provision, Article 25, §1, 10° CPIL, would introduce a specific refusal ground: recognition and enforcement must be denied when the judgment relates to an act of public participation under Article 1385/1, 1° and 2° of the Judicial Code (‘JC’) and the underlying claim is considered manifestly unfounded or unlawful under Belgian law. Notably, this framework allows for a de novo review of the foreign judgment’s merits, as opposed to the classic public policy exception, while Article 25, §2 CPIL clarifies that under no circumstances will the foreign judgment be reviewed on its merits.

The discussion, moderated by Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), Working Group co-Chair and member for Italy, further explored the implications of the national approaches presented.

As regards the Belgian perspective, Jachin Van Doninck emphasised that the relevant standard for assessing the refusal of recognition and enforcement should be read in parallel with the ruling provided by the Court of Justice of the European Union in the Real Madrid Club de Fútbol v. Société éditrice Le Monde case (C-633/22), as also noted on this blog. In that judgment, the Court clarified key aspects concerning the limits of review in cross-border situations and the role of fundamental rights in assessing the compatibility of foreign judgments, thereby offering interpretative guidance that may also inform the application of Article 16 of the Anti-SLAPP Directive. This suggests that, even in the absence of full harmonisation, EU law may provide a common interpretative framework capable of influencing national courts when assessing whether third-country proceedings are manifestly unfounded or abusive.

From the Swedish perspective, as highlighted by Marie Linton, the discussion underscored that the recognition and enforcement of non-EU judgments remain, to a large extent, unharmonised at EU level. The Swedish approach thus reflects a specific national procedural framework, which, while not unique, illustrates the diversity of solutions across Member States. This, in turn, points to the significance of the EU legislator’s choice to adopt a directive – rather than a regulation – in the field of anti-SLAPP protection at the EU level, thereby allowing for a degree of national procedural autonomy.

In concluding the discussion, Marco Pasqua observed that such a “surgical” approach to harmonisation is not unfamiliar within the EU legal order: where considered necessary, the Union does not refrain from intervening even in such areas governed by national law with a “targeted” intervention. A recent example, in a different context, is Council Regulation (EU) 2025/395, amending Council Regulation (EU) No 833/2014, which introduces, in Article 11c, a specific rule excluding the recognition, effect or enforcement in EU Member States of judgements or other court decision pursuant to or derived from Article 248.1 or Article 248.2 of the Arbitration Procedure Code of the Russian Federation or equivalent Russian legislation. However, such intervention may prove less straightforward in legal systems characterised by automatic recognition of foreign judgments, as it may entail, de facto, a form of review on the merits, albeit limited but not insignificant. Against this overall background, it remains to be seen whether, and to what extent, the EU legislator may in the future decide to general harmonise the recognition and enforcement of third-country judgments, where it has the competence and the will to do so.

4. On the Basis of the Transposition of Article 11 of the Anti-SLAPP Directive, How Would the Procedure for Early Dismissal Operate in Your Legal System?

The early dismissal mechanism in Article 11 of the Anti-SLAPP Directive requires Member States to ensure that courts can dismiss manifestly unfounded claims related to public participation at a very early stage, following an appropriate examination and in accordance with national law. This mechanism is particularly important from a private international law perspective. Since the recast of the Brussels I bis Regulation will take time, an effective and genuinely expedited early dismissal procedure serves as a crucial safeguard against forum shopping pending potential reforms in this area, and may mitigate the chilling effect inherent in SLAPP litigation.

The fourth question concerns a scenario in which the U.S.-based company initiates proceedings against the organisation before a court in a Member State. It is assumed that jurisdiction is established, while the organisation argues that the claim is manifestly unfounded.

With respect to Sweden, Marie Linton explained that no legislative amendments were deemed necessary to comply with Article 11 of the Anti-SLAPP Directive, as Swedish procedural law already provides various mechanisms to deal swiftly with manifestly unfounded claims. Where a claim is clearly unfounded, Swedish courts may immediately ex officio render a judgment without issuing a summons, according to Chapter 42, Section 5, of Swedish Code of Judicial Procedure. Courts are expected to act “without undue delay”, which means within a few days, but there are no specific sanctions if this time frame is not met. Even where a summons has already been issued, the Swedish Code of Judicial Procedure provides several procedural avenues for expeditious adjudication of manifestly unfounded claims (for example Chapter 42 Section 11, Chapter 42 Section 18 first paragraph indent 5 and Chapter 42 Section 20 second paragraph of the Swedish Code of Judicial Procedure).

Finally, Marie argued that the threshold is very high before a claim is deemed to be unfounded. She therefore questions whether Swedish law fulfills the intention of the Anti-SLAPP Directive and is a viable solution for SLAPP cases.

According to the presentation, as prepared by Jachin Van Doninck and Cedric Vanleenhove, the Belgian government intends to insert a specific provision on early dismissal in Article 1385/3 JC. There are two scenario’s: either the SLAPP target request, orally or through reasoned petition, for early dismissal at the stage of the preliminary hearing, or the court can ex officio dismiss the claim at any stage of the proceedings. With respect to this request, there is a reversal of burden of proof; in accordance with Article 12 of the Anti-SLAPP Directive, the claimant has to prove that the claim is not unfounded.

During the preliminary hearing, Belgian courts will first examine the possibility of an amicable settlement. If no settlement is reached, short-debate proceedings will follow, after which the court must deliver its judgment within 30 days of the hearing. Jachin Van Doninck expressed concerns as to whether Belgian courts will, in practice, be able to allow for such short-debate proceedings, given that they are often understaffed and overburdened. Furthermore, no sanction is attached to the requirement that the court must issue its judgment within 30 days. In addition, Jachin Van Doninck raised the unresolved issue about what happens when claims are modified and/or added that would qualify as manifestly unfounded claims against public participation.

Jachin Van Doninck also pointed out an imbalance between decisions granting early dismissal, which are open to appeal, and decisions rejecting a request for early dismissal, which are not open to appeal. This difference in treatment may not be justified under Article 10 of the Belgian Constitution.

Moderated by Birgit van Houtert (Maastricht University), Working Group co-Chair and member for the Netherlands, the discussion turned to a closer consideration of the early dismissal mechanism of national approaches of Member States.

Artur Doržinkevič (Mykolas Romeris University), Working Group member for Lithuania, noted that the Lithuanian approach is closer to the Belgian model, as it involves adversarial proceedings on the merits. As already noted on this blog, a decision on early dismissal is typically rendered within approximately two months and is subject to appeal. Artur  Doržinkevič also expressed his concern that, if SLAPP claimants lodge an appeal, the proceedings may still take a long time.

To conclude, Birgit van Houtert underscored the differences in time limits governing early dismissal procedures across Member States, as illustrated by the comparison between Belgium and Sweden. With regard to a change in the Polish draft transposition act, Zuzanna Nowicka (Jagiellonian University), Working Group member for Poland, noted that the timeframe has been reduced from six to three months. On this point, Marco Pasqua emphasised that time is a crucial factor in SLAPP cases, and noted that in many legal systems a three-month timeframe is not feasible, although it may already be too lengthy to provide effective protection. According to Jerca Kramberger-Škerl (University of Ljubljana), Working Group member for Slovenia, a three-month timeframe, as provided for in Article 8 of the Slovenian Anti-SLAPP Act (already noted on this blog), which is in force (as of 25 February 2026), appears realistic for Slovenian courts. This assessment is grounded in the significant judicial reforms undertaken in Slovenia over the past two decades to reduce backlogs and accelerate proceedings, notably following the ECtHR’s pilot judgment in Lukenda v Slovenia.

As presented by Marie Linton, in Sweden the procedure is significantly swifter: courts may decide without issuing a summons and can render a decision within a matter of days. Birgit van Houtert argued that the absence of a hearing may, however, raise concerns in light of the right to a fair trial.

In their closing remarks, the co-Chairs warmly thanked the speakers and all members for the rich and engaging discussion. The Working Group will continue its activities and will have the opportunity to report on the state of transpositions at the upcoming international conference SLAPP, Activism and Human Rights: Legal and Social Challenges in the Defense of the Environment, which will be held in Tarragona on 30 June 2026 at the Faculty of Legal Sciences of the Universitat Rovira i Virgili. Further information on the conference will be announced in due course on the EAPIL blog.