Dutch Court Establishes Jurisdiction in the Greenpeace Anti-SLAPP Case – Part I

This post was prepared by Birgit van Houtert (Assistant Professor, Maastricht University), co-chair of the EAPIL Working Group on Anti-SLAPP Directive Transpositions and member for The Netherlands, and Marco Pasqua (Examiner, Catholic University of the Sacred Heart, Milan), co-chair of the EAPIL Working Group on Anti-SLAPP Directive Transpositions. Marco Pasqua is the author of paragraphs 1 and 2, while Birgit van Houtert is the author of paragraphs 3, 4 and 5. This post continues with Part II, which will be published this afternoon.   

On 3 June 2026, the District Court of Amsterdam issued a judgment in the interlocutory proceedings of the case of Greenpeace International, headquartered in Amsterdam, the Netherlands (hereinafter, ‘GPI’) against Energy Transfer LP, Energy Transfer Operating, L.P. and Dakota Access LLC (collectively, ‘ET’), Delaware entities with principal offices in Texas, United States. The Court’s reasoning provides an opportunity to examine a number of broader issues, namely: (1) the temporal application of Directive (EU) 2024/1069 (hereinafter, ‘Anti-SLAPP Directive’); (2) the question of consistent interpretation and direct effects of the Anti-SLAPP Directive; (3) the fact that Dutch law currently lacks the special jurisdictional ground of Article 17(1) of the Anti-SLAPP Directive; (4) the role of Article 6(e) DCCP and the localisation of Greenpeace International’s centre of interests in the Netherlands; and (5) the refusal to stay the Dutch proceedings notwithstanding the pending U.S. litigation.

Background to the Dispute

The litigation forms part of the long-running controversy surrounding the Dakota Access Pipeline, a crude-oil pipeline project in the United States that triggered widespread environmental protests, particularly in connection with concerns raised by the Standing Rock Sioux Tribe. ET, the cooperation behind the project, subsequently initiated a series of legal proceedings against environmental organisations and activists. Although GPI was not involved in organising the protests, it had publicly supported advocacy efforts relating to the project by signing an open letter urging the banks financing the pipeline to suspend their financial support pending further review. Against this background, ET brought two major actions in the U.S. against GPI, including the U.S. Greenpeace entities, referred to in this post as the “Federal Lawsuit” and the “State Lawsuit”. The “Federal Lawsuit” refers to the action brought by Energy Transfer in federal court in 2017 under the Racketeer Influenced and Corrupt Organizations Act (RICO), which was ultimately dismissed. The “State Lawsuit” refers to the subsequent proceedings initiated before the North Dakota state courts in 2019 and based on largely similar allegations concerning Greenpeace’s alleged role in the anti-pipeline campaign. Relevant materials from both GPI and ET are available on their respective websites, here and here.

Facts of the Case

On 11 February 2025, GPI summoned ET before the District Court of Amsterdam, the Netherlands. GPI argues that ET is liable for the damage it has suffered by ET’s two strategic lawsuits against public participation (SLAPPs) in the United States of America against GPI in response to its participation in matters of public interest. GPI based its claims on Dutch tort law (Article 6:162 of the Dutch Civil Code (DCC)) and the prohibition of abuse of rights (Articles 3:13–3:15 DCC), read in conjunction with Articles 8 and 10 of the European Convention of Human Rights, Article 11 of the EU Charter of Fundamental Rights, the EU Anti-SLAPP Directive, and the Council of Europe Recommendation CM/Rec(2024)2 on countering the use of SLAPPs. According to GPI, the alleged damage consists of financial, reputational and organisational harm, including interference with the pursuit of its environmental objectives..

ET, however, brought an interlocutory application arguing that  the Dutch court lacks jurisdiction because the alleged damage occurred in the United States rather than in the Netherlands. ET further requested that the Dutch proceedings be stayed until a final judgment has been rendered in the U.S. State Lawsuit. .

GPI relied on Article 6(e) of the Dutch Code of Civil Procedure (DCCP), which confers jurisdiction in matters relating to tort where “the harmful event occurred in the Netherlands or may occur in the Netherlands”. Under established Dutch case law, that provision is interpreted consistently with Article 7(2) of the Brussels I bis Regulation and therefore encompasses both the place of the causal event (Handlungsort) and the place where the damage occurred or may occur (Erfolgsort).

With respect to ET’s alleged liability for SLAPPs, GPI further argued that Article 6(e) DCCP should be interpreted in light of Article 17(1) of the Anti-SLAPP Directive. In this regard, GPI relied on the Explanatory Memorandum accompanying the Dutch draft transposition act(hereinafter EM), according to which no specific implementation of Article 17(1) was considered necessary because Article 6(e) DCCP already provides an equivalent jurisdictional safeguard for persons domiciled in the Netherlands seeking compensation for damage resulting from abusive proceedings brought in a third country.

1. The Temporal Application of the Anti-SLAPP Directive

The District Court held that the Anti-SLAPP Directive is not applicable to the present dispute. It recalled that the Anti-SLAPP Directive entered into force on 6 May 2024 pursuant to Article 23 and must be transposed by 7 May 2026 under Article 22, while the Dutch implementing legislation is still pending before Parliament (§ 4.4). It further emphasised that the claims are rooted in two U.S. proceedings initiated in 2017 and 2019, and appears to treat this circumstance as decisive for excluding any relevance of the Anti-SLAPP Directive. The underlying assumption is that, because the alleged SLAPP conduct predates both the entry into force of the Anti-SLAPP Directive and the expiry of the transposition period, the instrument is, as a matter of principle, temporally inapplicable to the dispute since it does not have retroactive effect (§ 4.8).

This reasoning is open to question in so far as it treats the chronological order of the U.S. proceedings as determinative for the applicability of the Anti-SLAPP Directive without further qualification.

Article 23 of the Anti-SLAPP Directive merely establishes the date of entry into force (6 May 2024), while Article 22 sets a transposition deadline for Member States (7 May 2026); neither provision contains any express limitation excluding its relevance to disputes concerning conduct that occurred before 2024. The decisive temporal link in the Court’s reasoning is therefore not derived from the text of the Anti-SLAPP Directive itself, but inferred from the fact that the underlying foreign proceedings were initiated in 2017 and 2019. Yet such an inference risks conflating the temporal origin of the alleged abusive litigation with the temporal scope of the EU instrument governing procedural responses to such litigation. In particular, it remains unclear why proceedings instituted prior to 2024 should, as such, be categorically excluded from the Anti-SLAPP Directive’s normative framework, especially in the absence of an explicit transitional clause comparable to that found in other EU procedural instruments (cf. Article 22(1) of Directive (EU) 2020/1828 on representative actions, which expressly limits application to representative actions brought after a specified date). The ruling therefore appears to rely on an implicit presumption of temporal non-applicability tied to the date of initiation of the U.S. proceedings, rather than on an express limitation contained in the Anti-SLAPP Directive itself.

Such an approach risks undermining the effectiveness (effet utile) of the Anti-SLAPP Directive. If temporal relevance were systematically anchored to the historical initiation of third-country proceedings, rather than to the moment in which protection is sought before EU courts, the Anti-SLAPP Directive’s safeguards could be deprived of practical relevance in a significant category of cases precisely those in which abusive litigation is long-lasting or strategically prolonged across countries. This would create a structural vulnerability whereby defendants could be denied protection solely because the underlying proceedings were initiated before the Anti-SLAPP Directive’s entry into force, even though their effects persist within the EU legal space. In functional terms, this would allow a form of temporal “freezing” of SLAPP-related disputes, enabling strategic litigants to shield themselves from enhanced procedural scrutiny by relying on the historical dating of the originating proceedings. Such an outcome would sit uneasily with the Anti-SLAPP Directive’s protective purpose and risks weakening its capacity to counteract the chilling effect inherent in abusive litigation strategies, which by definition operate through sustained pressure over time rather than through isolated procedural acts.

More fundamentally, a restrictive reading of this kind would also raise issues of internal consistency within the Anti-SLAPP Directive itself. If the decisive temporal criterion were indeed to be located in the initiation date of the third-country proceedings, the same logic would arguably have to inform the interpretation of Article 16 on the grounds for refusal of recognition and enforcement of third-country judgments. Such an approach would narrow the scope of judicial control over foreign judgments in a manner not clearly supported by its text.

This concern is further reinforced when considering Article 17 of the Anti-SLAPP Directive, which combines a jurisdictional rule with a remedial dimension by allowing the claimant to seek compensation for damage and costs incurred in connection with third-country SLAPP proceedings. In this sense, Article 17 is not purely procedural in nature, but reflects a hybrid structure in which jurisdiction is functionally linked to the substantive consequences of abusive litigation. At the same time, however, the provision raises a more complex conceptual question as to its normative necessity: it is not entirely clear whether the recognition of a claim for damages and costs must necessarily be anchored in Article 17 itself, or whether similar relief could in principle be grounded in pre-existing national causes of action, whether general or specific, independently of the Anti-SLAPP Directive’s transposition. If this is the case, the Anti-SLAPP Directive may operate less as a constitutive source of the remedy and more as a structuring framework for its exercise. This in turn complicates the temporal analysis, since the availability of relief would not depend exclusively on the Anti-SLAPP Directive’s temporal applicability, but on the persistence and adaptability of domestic remedial bases capable of capturing the effects of abusive litigation.

Against this background, the Court’s temporal reasoning appears to warrant reconsideration, as it risks introducing an implicit limitation on the Anti-SLAPP Directive’s scope which is neither textually grounded nor systemically coherent with its overall design.

2. Direct Effect and Consistent Interpretation of the Anti-SLAPP Directive

The District Court adopts a relatively orthodox approach when addressing the legal effects of the Anti-SLAPP Directive. It states in general terms that a directive has no direct effect, adding that reliance may be placed only on national legislation adopted on the basis of the directive, and noting that the Anti-SLAPP Directive has not yet been transposed into Dutch law (§ 4.7). Read in context, this formulation reflects a general understanding of the absence of invocability of an unimplemented directive in domestic proceedings, rather than a detailed engagement with the distinctions developed in the case law of the CJEU concerning the conditions under which untransposed, or timely or partially untransposed, directives may, in principle, produce effects in certain types of disputes (i.e. vertical situations).

The Court then correctly recalls that, following the expiry of the transposition period, national courts are required to interpret domestic law, so far as possible, in conformity with the directive, even where transposition has not yet occurred. As already noted by Geert Van Calster, the combined effect of, among others, Marleasing and Inter-Environnement Wallonie reflects a strong duty of EU-conforming interpretation: while Marleasing requires national courts to interpret domestic law, as far as possible, in light of directives, Inter-Environnement clarifies that directives may already exert interpretative influence during the transposition period, before full implementation into national law. However, the Court immediately concludes that consistent interpretation is not possible in the present case because of the non-retroactivity (§ 4.8).

As already addressed in the first paragraph of this post, this reasoning is grounded in the idea that the interpretative obligation of national courts operates within the temporal scope of the directive as defined by its entry into force, and that it cannot be used to reassess legal situations entirely situated in the past. At the same time, however, the CJEU has consistently framed consistent interpretation as a forward-looking obligation, focusing on the time of adjudication and the current interpretative framework of national law, provided that such interpretation remains within the limits of legal certainty and does not lead to contra legem results. In this sense, the relationship between temporal applicability and interpretative reach is not purely mechanical, particularly in relation to procedural rules, which typically operate within ongoing judicial assessments rather than being confined to the historical moment in which the underlying dispute originated.