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

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 follows up on the report (Part I).

The fourth meeting of the EAPIL Working Group on Anti-SLAPP Directive Transpositions continued with a discussion structured around a case study, building on the insights emerging from the Slovenian and French 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, where it has been addressed the notion of SLAPP and the scope of application of the national transposition measures, including their operation in purely domestic situations and their (limited or absent) extension to criminal proceedings. This second part of the report focuses on the discussion concerning protection against third-country proceedings, as well as the operation of the early dismissal mechanism under Article 11 of Directive (EU) 2024/1069 (‘Anti-SLAPP Directive’).

2. On Which Grounds Would the Court Have Jurisdiction?

This question concerns the jurisdiction ground as provided by Article 17(1) of the Anti-SLAPP Directive that allows EU courts to assess the compensation for damages and costs that SLAPP-targets in their respective Member State have sustained in third-country SLAPP proceedings.

Jerca Kramberger-Škerl (University of Ljubljana), Working Group member for Slovenia, explained its transposition in Article 14 of the Slovenian Anti-SLAPP Act that states “‘a person with permanent residence or registered office in the Republic of Slovenia may claim monetary compensation for damages incurred in proceedings in a third country which, under the law of the Republic of Slovenia, would be considered an abuse of legal proceedings against public participation against the beneficiary, before a court of the Republic of Slovenia in the place of their permanent residence or registered office’.” She elaborated on the connecting factor of ‘permanent residence’, which is a specific connecting factor under Slovenian administrative law. The factor of ‘domicile’ under the Brussels I bis Regulation is also interpreted under Slovenian law as permanent residence. While the vast majority of persons living in Slovenia have permanent residence, some persons have temporary residence. Furthermore, it is not a factual concept, but it is a legal concept as it requires registration in the register of population.

While Article 17(1) of the Anti-SLAPP Directive has not been transposed in France, Marco Buzzoni  (University of Luxembourg – Luxembourg Centre of European Law), Working Group member for France, identified the grounds for jurisdiction available under French law. According to Article 14 of the French Civil Code, “a foreign national, even if not residing in France, may be summoned to appear before French courts to enforce obligations entered into in France with a French national; he or she may also be brought before French courts for obligations entered into in a foreign country with French nationals”. On the basis of this provision, French nationals will almost always be able to bring proceedings before the French courts. For persons who are not French nationals but are domiciled in EU Member States, Article 6(2) Brussels I bis Regulation provides that they should benefit from the same protection as afforded by the exorbitant ground of jurisdiction contained in Article 14 of the French Civil Code.

However, Marco Buzzoni raised the following issues. According to settled French case law, Article 14 of the French Civil Code cannot be used to reverse the results of enforcement proceedings. As this is exactly the aim of Article 17(1) of the Anti-SLAPP Directive, he argued that French courts will have to set aside their own case law if cases fall under the scope of the Directive. Furthermore, it is questionable whether, irrespective of Article 14, claims regarding third-country proceedings can also be filed directly in exequatur proceedings. According to the majority of cases and legal doctrine in France, in exequatur proceedings one is generally not allowed to bring actions for damages; however, there are some cases that have gone in the other direction.

According to Birgit van Houtert (Maastricht University), the non-transposition approach in both France and the Netherlands, according to the Dutch draft transposition act, raises doubts as to whether the jurisdictional safeguard envisaged by Article 17(1) of the Anti-SLAPP Directive will be effectively guaranteed in practice. In both countries, the current approach appears to shift the responsibility for ensuring the effectiveness of Article 17(1) from the legislature to the courts.

Birgit van Houtert referred to the Dutch draft transposition act that indicates that the jurisdictional ground in Article 6(e) DCCP already satisfies the requirements of Article 17(1) of the Anti-SLAPP Directive. Article 6(e) DCCP mirrors Article 7(2) of the Brussels I bis Regulation and is interpreted in accordance with the case law developed under that provision. However, as she argued earlier here, Dutch law currently does not provide the safeguard envisaged by Article 17(1) of the Anti-SLAPP Directive, given that, under the CJEU’s interpretation of Article 7(2) Brussels I bis, the victim’s habitual residence alone is insufficient to establish jurisdiction.

Birgit van Houtert pointed out that the recent Greenpeace v. Energy Transfer judgment confirms this concern. In this Anti-SLAPP case, the Amsterdam District Court expressly held that Article 17(1) of the Anti-SLAPP Directive requires implementation into Dutch law and cannot be regarded as already laid down in Dutch law. The court therefore relied on Article 6(e) DCCP and identified additional circumstances connecting the dispute to the Netherlands. The judgment thus provides a strong indication to the Dutch government that Dutch law does not currently offer the specific jurisdictional safeguard envisaged by Article 17(1) of the Anti-SLAPP Directive and that legislative action is therefore required to ensure its proper transposition. A more comprehensive analysis of the Greenpeace v. Energy Transfer judgment can be found here and here.

3. On Which Grounds Could Recognition and Enforcement of the Third-Country Judgment be Refused?

 The discussion on the third question concerning the refusal of recognition and enforcement of third-country judgments, as provided by Article 16 of the Anti-SLAPP Directive, was necessarily more concise, as the previous exchanges on the scope of application of the Anti-SLAPP frameworks and the interaction with criminal proceedings raised a particularly rich debate and took up a significant part of the available time. Therefore, the following summary reflects the points indicated by the contributors in their respective slides.

Jerca Kramberger-Škerl reported that, under Article 13 of the Slovenian Anti-SLAPP Act, recognition or enforcement of a third-country judgment may be refused where, under Slovenian law, the underlying proceedings would be considered abusive legal proceedings against public participation or where the claim would qualify as manifestly unfounded. The provision expressly states that, in proceedings concerning the recognition or enforcement of a decision issued in a third State against a person domiciled or established in Slovenia, the foreign judgment shall not be recognised or enforced if the Slovenian court concludes that the proceedings would fall within one of these categories under Slovenian law.

Marco Buzzoni reported that, in the absence of a transposition of Article 16 of the Anti-SLAPP Directive, the relevant ground under French law would likely be the violation of international public policy. He noted that such assessment would probably be carried out in light of the criteria developed by the CJEU in the Real Madrid case, as also reflected in recent French case law (Cass. Civ. 1, 28 May 2025, Nos 21-13.519 and 21-13.520). He further observed that, while these references provide guidance concerning the proportionality of damages awarded by foreign courts, the Court has not yet clarified the criteria for assessing the abusiveness of the foreign proceedings themselves.

4. How Does the Early Dismissal Mechanism Operate and Who Bears the Burden of Proof?

As regards the early dismissal mechanism under Article 11 of the Anti-SLAPP Directive, Jerca Kramberger-Škerl explained that, where a case falls within the scope of the Slovenian Anti-SLAPP Act, the court first examines whether the claim is manifestly unfounded. If this threshold is met, the court summons the claimant to demonstrate that the claim is not manifestly unfounded. She clarified that, if the court deems the claim manifestly unfounded and the case falls within the scope of the Act, the court may also act ex officio, although in practice the mechanism is likely to be triggered upon the defendant’s request. A preparatory hearing must then be held within three months, during which the issue of manifest unfoundedness is examined as a preliminary matter, usually followed directly by the main hearing. If the claimant fails to discharge this burden, the court dismisses the claim with res judicata effect. Conversely, if the claimant succeeds in showing that the claim is not manifestly unfounded, the proceedings continue under the ordinary civil procedure rules, while the defendant may still rely on additional protective measures provided by the Anti-SLAPP Act, including security deposits, support measures, full cost reimbursement, damages compensation, publication of the judgment and financial penalties.She further emphasised that the preparatory hearing stage is designed to ensure a swift preliminary assessment of abusiveness, with the main proceedings typically continuing immediately thereafter once that stage is concluded.

Marco Buzzoni then presented the French approach. He noted that the defendant in alleged SLAPP proceedings may file an application for early dismissal of a manifestly unfounded claim under Article 499-1 of the French Code of Civil Procedure, which is to be dealt with on a priority basis under Article 499-3 CCP, with the court setting a hearing date while ensuring that the claimant is given sufficient time to respond. Where the case is already before the juge de la mise en état, that judge has exclusive jurisdiction to rule on the request pursuant to proposed Article 789, 1° bis CCP. He added that, unlike the Slovenian model, the French transposition does not impose a specific time limit for the decision, although it does require priority treatment of the request. He further clarified that the early dismissal mechanism does not modify the ordinary rules on the burden of proof, although the SLAPP claimant must demonstrate that the claim is not manifestly unfounded, thereby retaining the burden under general principles of civil procedure. He also noted that, as under Slovenian law, a decision granting early dismissal would have res judicata effect, bringing the proceedings to an end.