Fourth Meeting of the EAPIL Working Group on Anti-SLAPP Directive Transpositions – Report (Part I)

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 as report of the Working Group’s fourth meeting. This post continues with the report (Part II).

On 4 June 2026, the EAPIL Working Group on Anti-SLAPP Directive Transpositions held its fourth meeting, chaired by Birgit van Houtert and Marco Pasqua. The Co-Chairs opened the session by welcoming the participants and briefly recalling the work carried out since the establishment of the Working Group. As previously reported on this blog, the first meeting focused on the preparation of the questionnaire for the comparative analysis of national transposition measures; the second meeting (Part I – Part II) examined in detail the implementation of Articles 16 and 17 of Directive (EU) 2024/1069 (‘Anti-SLAPP Directive’), concerning protection against proceedings and judgments originating from third countries; and the third meeting (Part I – Part II) built on this discussion by further analysing Articles 16 and 17 while also addressing the early dismissal mechanism under Article 11, with particular attention to procedural tools designed to ensure swift judicial response to manifestly unfounded claims.

The fourth meeting took place after the expiry of the transposition deadline of 7 May 2026 (noted here and here) and was therefore an important occasion to take stock of the developments at national level and to discuss the implementation choices adopted by Member States. The meeting included contributions from members from Slovenia and France on their national transposition approaches around a case study, and the discussion was then opened to all members, who engaged in a broader debate on the implications of the transposition process and its practical effectiveness.

Against this background, an overview of the transposition deadline showed that several Member States have already adopted final implementing measures (including Belgium, Cyprus, Finland, France, Ireland (partially), Latvia, Lithuania, Malta, Slovenia, Sweden and partially Romania), while others have not yet presented draft texts (notably Austria, Hungary, Italy and Portugal), with the remaining Member States currently in the drafting phase.

The Case Study

The case study concerned a scenario involving an investigative journalist domiciled in an EU Member State who brought proceedings before the courts of that State against a multinational technology company headquartered in a third country (the People’s Republic of China). The company had previously initiated litigation in its home country against the journalist and a local media outlet, based on allegedly defamatory investigative reporting concerning allegedly anti-competitive practices and data protection issues. The foreign proceedings, characterised by the journalist as SLAPP, resulted in significant costs and damages, which the journalist sought to recover through the action brought before the Member State court.

Against this background, participants were invited to (1) consider how the (draft or final) national transposition of the Anti-SLAPP Directive would address such a situation, in particular with regard to the criteria for identifying SLAPP and the scope of application of the implementing measures, including in purely domestic situations and, where relevant, in proceedings brought within criminal proceedings frameworks. The discussion further explored (2) the jurisdictional basis for bringing the claim before the courts of the Member State of domicile (3) as well as the possible grounds on which recognition and enforcement of the third-country judgment rendered by the courts of the People’s Republic of China against the journalist could be refused. Finally, attention was given to (4) the functioning of the early dismissal mechanism under Article 11 of the Anti-SLAPP Directive, including the allocation of the burden of proof.

1. How Are SLAPPs Identified and Does the Scope of the Transposition Act Extend to Domestic and Criminal SLAPP Cases?

Jerca Kramberger-Škerl (University of Ljubljana), Working Group member for Slovenia, presented the Slovenian perspective (already noted on this blog).

As regards the criteria for identifying a SLAPP, she explained that Article 4(4) of the Slovenian Anti-SLAPP Act defines an abusive legal proceeding as one that is not genuinely aimed at enforcing a right to judicial protection, but rather at preventing, restricting or punishing public participation, where unfounded claims are asserted. The provision further sets out a non-exhaustive list of indicators, including an imbalance of power between the parties, the disproportionate or excessive nature of the claim (including its value), the existence of multiple related proceedings, instances of intimidation or harassment and the use of bad faith procedural tactics such as delay, forum shopping or strategic withdrawal. It was further clarified that these criteria are also relevant when assessing SLAPP-related damages claims brought in the Member State of domicile following proceedings initiated in a third State, thereby confirming the dual function of the provision both in incoming and “counter-action” scenarios. She also stressed that the definition presupposes both a qualified beneficiary engaged in “public participation” and conduct falling within broadly defined matters of public interest, including freedom of expression, science and arts, matters under official proceedings, allegations of corruption, and protection of Article 2 TEU values.

On the territorial scope of application, she noted that the Slovenian Act also applies to purely internal situations where all relevant elements are confined within the same Member State. This extension to purely domestic situations reflects a deliberate legislative choice, despite earlier debates in the drafting phase in favour of limiting the regime to cross-border SLAPPs.

With regard to proceedings brought within criminal proceedings, she clarified that the Slovenian Act is limited to civil proceedings. However, Article 20 introduces a limited opening for SLAPP-related concerns in criminal matters, allowing courts in private prosecution cases concerning offences against honour and reputation to impose a security deposit for costs, applying the civil provisions on security deposits mutatis mutandis. This solution reflects a broader structural debate in Slovenia, where SLAPP cases have frequently arisen in criminal proceedings and where discussions are ongoing both on extending anti-SLAPP safeguards and on the possible decriminalisation of defamation-related offences.

Marco Buzzoni (University of Luxembourg – Luxembourg Centre of European Law), Working Group member for France, then presented the French perspective.

He explained that the French transposition (Decree No 2026-337 of 30 April 2026) relies directly on the Anti-SLAPP Directive for defining SLAPPs. New Article 499-1 of the French Code of Civil Procedure applies in proceedings brought against natural or legal persons on the grounds of their participation in public debate within the meaning of Article 4(1) of the Anti-SLAPP Directive, while Article 499-2 applies to abusive proceedings as defined in Article 4(3) of the Anti-SLAPP Directive.

As to the scope of application, he observed that the French transposition does not distinguish between domestic and cross-border situations, thereby extending also to purely internal cases.

He further noted that it remains uncertain whether a claim for compensation of damages and costs incurred in foreign proceedings would fall under Article 499-2 of the Code of Civil Procedure or instead be governed solely by Article 1240 of the French Civil Code. He emphasised that the current transposition framework is primarily designed for proceedings brought before French courts, and does not expressly regulate foreign or third-country proceedings, leaving the cross-border dimension to be addressed, if at all, through analogical reasoning.

Finally, he indicated that the French framework applies only to civil and commercial matters, excluding defamation and slander proceedings, although the journalist’s claim in the present scenario would arguably qualify as a standalone civil liability action and thus fall within the scope of Article 499-2 CCP. It was further clarified that, in practice, many SLAPP-related disputes in France arise in defamation contexts governed by criminal law, which fall outside the scope of the transposition, although parallel civil claims for damages may still be conceivable depending on recognition of foreign judgments and the applicable liability framework.

The discussion was opened by Marco Pasqua (Examiner, Catholic University of the Sacred Heart of Milan), Working Group co-Chair and member for Italy, who referred to the European Parliament resolution of 29 April 2026, according to which the Parliament urged Member States to go beyond the minimum standards of the Anti-SLAPP Directive and invited the Commission to consider additional instruments addressing SLAPP not covered by the current EU framework, including possible amendments extending the scope beyond cross-border situations. Against this background, he highlighted the coexistence of different national sensitivities in the transposition process and recalled the ongoing debate on the scope of the Anti-SLAPP Directive, including its cross-border dimension and the presumption-based approach. He further noted that, in several Member States, defamation remains a criminal offence, despite Council of Europe recommendations advocating decriminalisation, while also pointing to the limits set by Recital 19 of the Anti-SLAPP Directive in the criminal procedural law context.

Jerca Kramberger-Škerl reacted by engaging with the criminal law dimension of the Slovenian framework, noting that the Slovenian Anti-SLAPP Act appears to limit its compensatory mechanism to civil SLAPP proceedings as defined under domestic law. She suggested that this may create a potential gap where SLAPP-like proceedings are brought in criminal form in third States, raising questions as to whether analogical reasoning could be used to extend protection, or whether procedural law constraints would preclude such an approach. She further distinguished between criminal proceedings as such and the possibility of civil claims for damages brought within criminal proceedings, observing that the latter retain a civil character and may therefore fall within the scope of anti-SLAPP protection.

Marco Buzzoni responded by underlining the complexity of the civil-criminal interplay in cross-border scenarios, referring in particular to the hypothesis of a third-country judgment (including from China) imposing both criminal penalties and civil or exemplary damages. He suggested that, in such cases, a party resisting recognition or enforcement in France might seek a declaration of non-enforceability with respect to the civil components of the judgment, relying on existing case law on recognition control, and subsequently argue that sums paid under enforcement in the third State should be characterised as undue and thus subject to restitution under domestic private law. However, Marco Buzzoni emphasised that extending protection beyond restitution of sums already paid would be significantly more difficult in the absence of explicit transposition, particularly with regard to damages for costs or broader losses arising from foreign proceedings.

Jerca Kramberger-Škerl concluded by stressing the jurisdictional dimension of the issue, noting that in cases involving criminal proceedings abroad, the special jurisdictional basis provided by anti-SLAPP legislation would not be available under Slovenian law. She indicated that claimants would therefore need to rely on alternative heads of jurisdiction under general private international law rules, such as the place of damage, while still potentially pursuing claims for unjust enrichment or undue payment under the applicable law.

During the meeting, the discussion on the interaction between SLAPP proceedings and criminal law dimensions was reopened by Jachin Van Doninck (Vrije Universiteit Brussel), Working Group member for Belgium, who asked whether the exclusion of criminal proceedings from the scope of national transpositions should be further reconsidered. He observed that several national systems, including Belgium, have opted not to extend anti-SLAPP mechanisms to criminal cases, and raised the issue of third-country proceedings framed as criminal actions. In particular, he questioned whether, notwithstanding the criminal label, such proceedings could still be substantively characterised as civil disputes for the purposes of triggering the protection of national transposition measures and related jurisdictional rules, especially where victims of SLAPPs seek to bring compensation claims in their home Member State.

Marco Buzzoni responded by distinguishing between the proceedings brought in the Member State of domicile and those initiated in third States. As regards the former, he confirmed that actions for damages suffered as a result of foreign SLAPP proceedings are clearly civil in nature and therefore fall within the scope of private international law rules without difficulty. He added that the classification of the foreign proceedings themselves (whether criminal or civil) does not alter the civil character of the domestic action for compensation.

Turning to the more complex issue of the qualification of third-country proceedings, Jachin Van Doninck addressed the hypothesis of an autonomous qualification of such proceedings for the purposes of applying anti-SLAPP protection. In relation to this point, Marco Pasqua noted that while such an approach could in theory allow the protective regime to apply irrespective of the formal classification adopted in the third State, it raises difficulties of coherence both at EU law level, since such an autonomous notion would arguably need to be consistently extended across other relevant EU instruments dealing with civil and criminal matters, in order to preserve systemic consistency within EU private international law, and at national level, given that several Member States themselves maintain criminal defamation regimes, making it problematic to systematically reclassify foreign criminal proceedings as civil for the purposes of protection. An alternative approach, where possible, could consist in extending jurisdictional and protective mechanisms explicitly to cover victims of criminal SLAPP-type proceedings abroad, rather than relying on recharacterisation.

Marco Pasqua further emphasised that, under the current state of the Anti-SLAPP Directive and its transpositions, protection appears to remain primarily limited to civil proceedings, as also reflected in the restrictions under Recital 19, although he acknowledged that the issue remains open for further legislative development.

Jerca Kramberger-Škerl intervened by agreeing that the domestic compensation action is clearly of a civil nature, but stressed that the key difficulty lies in jurisdiction over claims arising from criminal SLAPP proceedings abroad. She noted that, under Slovenian law, the special jurisdictional basis created by the Anti-SLAPP Act would not extend to such situations, meaning that claimants would need to rely on general private international law bases, such as the place of damage. She further underlined that this may lead to a gap in protection, as victims of criminal SLAPP proceedings in third States would not benefit from the tailored jurisdictional rules introduced by the Anti-SLAPP framework.

Marco Buzzoni finally added that, from the perspective of French law, even where third-country proceedings are formally criminal in nature, the decisive issue lies in the treatment of the civil components of the foreign judgment. He explained that French courts may refuse recognition of criminal judgments as such, while still separately assessing whether civil damages components can be recognised or enforced, potentially subject to public policy limits. He further suggested that, where compensation has already been paid abroad, restitution may be sought under domestic principles of unjust enrichment, although this remains subject to restrictive case law on the use of jurisdictional provisions to reverse the effects of foreign enforcement.

The report continues with Part II.