Challenges in the Anti-SLAPP Directive Transpositions at the 7 May 2026 Deadline

This post was written by Birgit van Houtert (Assistant Professor, Maastricht University) and Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), co-Chairs of the EAPIL Working Group on Anti-SLAPP Directive Transpositions, based on the materials provided for by Working Group members.

The EAPIL Working Group  on Anti-SLAPP Directive Transpositions was established one year ago with the aim of supporting and critically monitoring the transpositions of Directive (EU) 2024/1069 (‘Anti-SLAPP Directive’) across the European Union, with a particular focus on its private international law dimensions and related procedural safeguards. Co-chaired by Birgit van Houtert and Marco Pasqua, the Working Group brings together around forty members from different EU Member States and has carried out comparative research on both draft and final national transposition measures through questionnaires, discussions and a series of online meetings (see First Meeting, Second Meeting – Part I – Part II; Third Meeting – Part I and Part II).

As mentioned in the previous blog post, the transposition of the Anti-SLAPP Directive in the Member States is proceeding quite slowly, although the process appears to have accelerated in recent months. Only a limited number of Member States have so far adopted final transposition acts, while several others are still in the drafting phase or have not yet introduced public proposals. In this blog post, we provide an overview of some of the main challenges emerging from the transposition of private international law and related aspects of the Anti-SLAPP Directive.

Scope

One of the first areas in which significant divergences among Member States emerge concerns the scope of application of the Anti-SLAPP Directive. Although it formally applies only to cross-border civil and commercial matters, the analysis of both final and draft transposition acts reveals different legislative strategies regarding its material scope.

Subject Matter

Article 1 of the Anti-SLAPP Directive states that the Directive “provides safeguards against manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications”, while Article 2 specifies that it “shall apply to matters of a civil or commercial nature”, “shall not extend […] to […] administrative matters”  and “shall not apply to criminal matters or arbitration and shall be without prejudice to criminal procedural law”.

Most, if not all, current transpositions follow closely the limitation set out in Article 2 of the Anti-SLAPP Directive, maintaining a strict confinement to civil and commercial matters and excluding criminal and administrative proceedings, as well as arbitration. This reflects a general tendency to preserve the traditional separation between civil procedural safeguards and other branches of law, rather than extending Anti-SLAPP mechanisms beyond their intended procedural domain.

A first tendency is the express exclusion of non-civil matters, where transposition acts explicitly state that criminal and administrative proceedings fall outside the scope of application of the anti-SLAPP regimes. A second, more implicit approach can be seen in those systems where the exclusion is not always spelled out in detail but follows from the overall civil procedural framing of the reform, which nonetheless leads to a functionally equivalent limitation.

The exclusion of criminal proceedings nevertheless remains one of the most problematic aspects of the current transposition process in this area. In many Member States, defamation and offences against honour or reputation continue to exist as criminal offences. As a result, abusive strategies aimed at silencing journalists, academics, NGOs or activists may simply shift from civil to criminal proceedings. The practical consequence is that the objectives pursued by the Anti-SLAPP Directive risk being only partially achieved: even where robust safeguards exist in civil proceedings, claimants may continue to exert pressure through criminal complaints, which often produce equally significant chilling effects. The issue is particularly sensitive because criminal proceedings frequently entail reputational consequences, investigative powers and procedural burdens capable of discouraging public participation as effectively as civil SLAPPs.

SLAPP Notion and Indicators

Article 4(3) of the Anti-SLAPP Directive defines “abusive court proceedings against public participation” as proceedings “not brought to genuinely assert or exercise a right, but [having] as their main purpose the prevention, restriction or penalisation of public participation”, and identifies several indicators of SLAPP, including disproportionate claims, multiple proceedings, intimidation tactics and abusive forum shopping.

Transposition approaches to this definition vary considerably and rarely reproduce it in full. A first tendency is that of selective codification, where only the general notion of “manifestly unfounded” or “abusive” proceedings is retained, often accompanied by procedural tools such as early dismissal mechanisms, without systematically incorporating the full list of indicators contained in Article 4(3). A second tendency relies instead on functional incorporation, whereby existing doctrines on abuse of procedural rights, bad faith litigation, or judicial sanctions for manifestly unfounded claims are used as substitutes for a detailed statutory definition. A more limited number of approaches move towards the textual alignment even if partial, referring to key concepts such as abuse or manifest unfoundedness but without developing a structured catalogue of indicia.

Parallelly, the notion of “manifestly unfounded claims” remains undefined at EU level and is left to national procedural law to determine its contours. A noteworthy example is provided by the Irish transposition of the Anti-SLAPP Directive through the Strategic Lawsuits Against Public Participation Act 2026, which expressly clarifies the meaning of the concept. Under the Act, a claim may be regarded as “manifestly unfounded” where: (a) the endorsement or pleading is unnecessary, constitutes an abuse of the court’s process, or, in the case of an interim or interlocutory application, may unreasonably prejudice or delay the fair trial of the action; (b) the claim itself discloses no reasonable cause of action, amounts to an abuse of process, is bound to fail, or has no reasonable chance of succeeding.

This diversity of approaches highlights a structural difficulty in the transposition of the Anti-SLAPP Directive. The concept of SLAPPs is inherently functional and context-dependent, which makes it resistant to rigid codification. While some systems attempt to translate it into enumerated indicators of abuse, others rely on flexible, pre-existing procedural doctrines. This inevitably increases the risk of fragmentation in practice, particularly regarding the threshold for qualifying a claim as abusive and the evidentiary burden required to activate protective mechanisms, with divergences likely to become more pronounced in cross-border litigation contexts.

Cross-Border Dimension

Article 5 of the Anti-SLAPP Directive provides that “a matter is considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised and all other elements relevant to the situation concerned are located only in that Member State” and “Domicile shall be determined in accordance with Regulation (EU) No 1215/2012”.

Transposition approaches reveal two main tendencies. A first one is the strict alignment with the minimum threshold, whereby the scope of application is confined to genuinely cross-border situations as defined by Article 5, preserving a clear distinction between domestic and transnational disputes (as, for example, in the Swedish final transposition act and in the current German and Finnish draft frameworks). A second tendency is instead the scope expansion, where the protective regime is extended beyond the Anti-SLAPP Directive’s minimum requirements to also cover purely domestic proceedings, in line with the permissive logic of Article 3 (as, for example, in the final Lithuanian and Slovenian transposition acts and in several ongoing draft reforms in Belgium, Croatia and Spain). This broader approach also appears consistent with the position adopted from both the European Commission, in Recitals 21 and paragraph 4 of Recommendation (EU) 2022/758, and the Council of Europe, in point 6 of Recommendation CM/Rec(2024)2, encouraging the extension of Anti-SLAPP safeguards to domestic, as well as criminal and administrative, proceedings.

The implementation of Article 5 reveals a certain lack of full engagement with the potentially broad and autonomous scope of the “cross-border implications” concept as defined by the Anti-SLAPP Directive, since several national debates appear to have treated the notion in a rather abstract or policy-driven manner rather than anchoring it to the functional criteria set out in Article 5, thereby overlooking that the Anti-SLAPP Directive itself constructs a presumption of cross-borderity that goes well beyond traditional domestic/international dichotomies.

Article 16 – Grounds for Refusal of Recognition and Enforcement of a Third-Country Judgment

Article 16 of the Anti-SLAPP Directive requires 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”. The provision constitutes one of the most significant private international law innovations introduced by the Anti-SLAPP Directive, as it directly concerns the circulation of foreign judgments in cases potentially affecting freedom of expression within the European legal space vis-à-vis third countries.

Transposition approaches reveal two main tendencies. A first one is based on the reliance on existing private international law tools, where Article 16 is considered already sufficiently covered by general mechanisms such as public policy clauses, reciprocity requirements or procedural fairness safeguards, without introducing specific Anti-SLAPP provisions. A second tendency is instead related to the explicit codification of refusal grounds, where the abusive or manifestly unfounded nature of the foreign proceedings is expressly incorporated as an autonomous criterion for refusal of recognition and enforcement in SLAPP-related contexts.

These diverging approaches reflect different underlying understandings of the role of Article 16. In some systems, the preference for general ordre public mechanisms signals continuity with traditional private international law techniques and a reluctance to introduce SLAPP-specific filtering devices for foreign judgments. In others, the adoption of express refusal grounds increases the normative visibility of Anti-SLAPP protection and strengthens its operational effectiveness at the enforcement stage.

At the same time, this duality raises broader systemic implications. Reliance on general public policy exceptions may preserve flexibility but risks maintaining a high and uncertain threshold for refusal, given their traditionally restrictive interpretation. Conversely, explicit Anti-SLAPP grounds may enhance legal certainty and predictability, but they also introduce a greater potential for divergence in how national courts assess “abusive” or “manifestly unfounded” proceedings originating in third countries. The implementation of Article 16 thus illustrates the broader structural tension between harmonisation and the persistence of deeply embedded private international law traditions.

Article 17 – Jurisdiction for Damages and Costs Related to Third-Country Proceedings

Article 17 of the Anti-SLAPP Directive requires that “Member States shall ensure that, where abusive court proceedings against public participation have been brought by a claimant domiciled outside the Union in a court or tribunal of a third-country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where that person is domiciled, compensation for the damage and the costs incurred in connection with the proceedings before the court or tribunal of the third-country”. As stated in Recital 44, this provision “creates a new special ground of jurisdiction” to provide EU domiciled SLAPP targets an effective remedy against abusive third-country proceedings initiated by claimants domiciled outside the EU.

Transposition approaches concerning Article 17(1) reveal two main tendencies. The first is reliance on existing jurisdictional grounds in national private international law, without transposing the special jurisdictional ground of Article 17(1) into their law. A second tendency constitutes the explicit codification of the special jurisdictional ground of Article 17(1) into national private international law. In some draft transposition acts, such as those of Germany and Poland, this is accompanied by an express designation of the courts of the place of the SLAPP target’s domicile as the relevant territorial forum.

The lack of transposition of the special ground of jurisdiction of Article 17(1) (as, for example, in the current Dutch and Romanian draft frameworks) creates legal uncertainty and undermines effective protection for SLAPP targets. In order to establish jurisdiction in accordance with Article 17(1), courts in those Member States may have to engage in the complex localisation of purely economic loss or harmful consequences, or search for a proper jurisdictional basis. Furthermore, the non-transposition undermines the Directive’s objective, set out in Recital 44, to act as a deterrent against SLAPPs brought in third countries.

However, the draft and final acts that transpose the jurisdiction ground of Article 17(1) reveal discrepancies that may result in diverging protection of SLAPP-targets across Member States. The first difference concerns the criterion of “abusive court proceedings against public participation” in Article 17(1). In this context, transposition approaches reveal two main tendencies. A first one refers to national law to assess this criterion (as, for example, the Slovenian final transposition act and the Spanish draft transposition act). The second approach does not refer to national law, thereby suggesting that the interpretation of “abusive court proceedings against public participation” in Article 4(3) of the Directive should be followed. Remarkably, the Swedish final transposition act relies solely on the criterion that the claim before the foreign court relates to a party’s participation in public debate.

The second difference among the transpositions of the special jurisdiction ground of Article 17(1) concerns the scope of compensation. Transposition approaches show two prevailing tendencies. The first tendency follows Article 17(1) by allowing for the compensation of both damages and costs. The second tendency limits compensation either to damages only (as, for instance, the Polish and Bulgarian draft acts and the Slovenian final act) or to legal costs only (as, for example, the Finnish draft act). The divergence in the scope of compensation leads to differing levels of protection for SLAPP targets across Member States.

The third difference among the transpositions of the special jurisdiction ground of Article 17(1) concerns the condition that the SLAPP claimant is domiciled outside the EU, as required in Article 17(1). In this context, transposition approaches reveal two distinct tendencies. The first tendency transposes the condition that SLAPP claimants are domiciled outside the EU. Remarkably, the German draft transposition act explicitly excludes actions against defendants domiciled or resident in a EU Member State or in a Contracting State to the Lugano Convention of 2007. The second tendency does not explicitly transpose this condition and therefore appears to extend the scope of application to situations involving claimants domiciled within the EU  (as, for instance, the Belgian and Polish draft approaches, and the Slovenian final transposition act). This second approach appears to be problematic as it adds a forum actoris ground to Articles 4 and 7(2) of the Brussels I bis Regulation, which runs counter to the scheme and underlying spirit of Brussels I bis Regulation and appears to exceed the limits of the competence on which the Anti-SLAPP Directive is based.

Article 17(2) – Stay of Proceedings

According to Article 17(2), “Member States may limit the exercise of jurisdiction under paragraph 1 while proceedings are still pending in the third-country”. Transposition approaches show two distinct tendencies. A first one refrains from the possibility to limit the jurisdiction under Article 17(1). A second tendency prohibits courts from exercising their jurisdiction while third-country proceedings are pending (see, for instance, the Belgian and Maltese approach). According to the strictest approach, as stated in the Lithuanian final transposition act (as noted on this blog), the courts may exercise jurisdiction only once a final decision in the non-EU country has become effective (enforceable). However, limiting the jurisdiction under Article 17(1) undermines timely and effective protection of SLAPP-victims, particularly as SLAPP proceedings are often lengthy,

Article 11 – Early Dismissal

Article 11 requires “Member States shall ensure that courts and tribunals may dismiss, after appropriate examination, claims against public participation as manifestly unfounded, at the earliest possible stage in the proceedings, in accordance with national law”. According to Article 7(1), courts should also treat an application for an early dismissal “in an accelerated manner in accordance with national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial”. The early dismissal mechanism is particularly relevant from a private international law perspective. Pending a recast of the Brussels I bis Regulation, a swift and effective early dismissal procedure may act as a key safeguard against forum shopping and may reduce the chilling effect of SLAPPs.

Two main tendencies can be identified in transposition approaches concerning Article 11. The first one relies on existing national procedural rules to early dismiss manifestly unfounded claims (as, for instance, the Romanian and Dutch draft transposition acts). The second main tendency relies on adopting in their national law an early dismissal mechanism specifically for SLAPP-targets in accordance with Article 11 (as, for example, the Belgian and Spanish draft approach and the Slovenian final transposition).

Although codifying the early dismissal mechanism as provided in Article 11 enhances legal certainty and deterrent effect, the effectiveness of this safeguard under both main tendencies remains to be seen. As noted by members of the WG, its practical effectiveness is particularly uncertain given the high threshold applied by courts to establish that a claim is manifestly unfounded.

Furthermore, the absence of a uniform definition of “manifestly unfounded claims”may facilitate forum shopping. Other factors contributing to forumshopping include divergence in transposition approaches regarding time limits for hearing and judicial decisions on early dismissal requests. Notably, the Swedish legal system allows courts to decide immediately without a hearing, raising concerns in terms of the right to a fair trial and equality of arms.

Article 12 – Burden of Proof and Substantiation of Claims

Article 12(1) provides that “the burden of proving that the claim is well founded rests on the claimant who brings the action”. In addition, Article 12(2) stipulates that “Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is not manifestly unfounded.” These rules should ensure that the burden of proof and substantiation rests with the SLAPP claimant, particularly where the SLAPP target seeks early dismissal.

Two main tendencies can be identified in transposition approaches on the burden of proof concerning the merits of the SLAPP claim and substantiation of these claims. The first one relies on the national procedural rules concerned. The second tendency can be identified in approaches that transpose the early dismissal mechanism of Article 11 and explicitly include into this mechanism the rule that the burden to prove that the claim is well founded rests on the SLAPP claimant (as, for example, the transposition approaches of Croatia, Slovenia, and Spain). This explicit codification enhances legal certainty and strengthens the deterrent effect against abusive litigation.

Final Remarks

In conclusion, the current transposition landscape confirms that the Anti-SLAPP Directive is likely to generate a fragmented and evolving procedural framework across the Union. However, in particular, where transposition is absent, delayed or incomplete, national courts may still be required to ensure certain protections through judicial interpretation, especially in proceedings involving State entities or bodies attributable to the State, given that directives may produce vertical direct effects under CJEU case law where their provisions are sufficiently clear, precise and unconditional.Yet, while this may be more feasible for substantive rights provisions, it remains far more delicate in relation to procedural safeguards, where courts cannot simply replace the role of the legislators. While in horizontal relationships between private parties, national courts are required to interpret national law, in so far as possible, in conformity with the Anti-SLAPP Directive in cases concerning facts arising after the expiry of the transposition period (while Member States were already, during that period, required to refrain from adopting measures liable seriously to compromise the result prescribed by the Anti-SLAPP Directive).

The result may therefore be an increasingly important – and potentially divergent – role for national courts in shaping Anti-SLAPP protection across Member States.