The Italian Draft Transposition of the Anti-SLAPP Directive: When Transposition Can Make the Difference

This post was prepared as part of the activities of the EAPIL Working Group on Anti-SLAPP Directive Transpositions.

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Directive (EU) 2024/1069 on the protection of persons engaging in public participation from manifestly unfounded claims and abusive court proceedings (hereinafter, ‘Directive’) was adopted on 11 April 2024 and had to be transposed by 7 May 2026. In Italy, Article 6 of Law No 36 of 17 March 2026, the 2025 European Delegation Law, delegated the Government to adopt the necessary implementing legislation. On 2 July 2026, the Council of Ministers approved a draft legislative decree at first reading, which was subsequently transmitted to Parliament (Chamber of Deputies and Senate of the Republic). The competent parliamentary committees subsequently delivered their opinions on the draft, some of which were favourable subject to observations. On 2 October 2026, the Council of Ministers approved the legislative decree in its final form. According to the Government’s press release, the final text takes into account the opinions expressed by the competent parliamentary committees. The decree will now be submitted to the President of the Republic for enactment. The analysis below concerns the draft as examined in the parliamentary phase and therefore does not assess any changes that may have been introduced in the final text.

The Italian experience offers a useful opportunity to look beyond the question of whether the Directive is being formally implemented and to ask a more practical question: what difference can the way in which a Directive is transposed make to the effectiveness of the protection it seeks to provide? This question is particularly relevant in the Anti-SLAPP context, where relatively small differences in procedural rules or definitions may determine whether a defendant can actually invoke the safeguards provided by the Directive.

What would the Italian draft introduce?

The draft would introduce a dedicated and comprehensive procedural framework for Anti-SLAPP litigation, conceived as a specific set of safeguards rather than an adaptation of the general rules of the Italian Code of Civil Procedure.

Its central mechanism would be an accelerated procedure for the early dismissal of manifestly unfounded claims. After entering an appearance, the defendant could request early dismissal within the prescribed procedural time-limit. The claimant would then be required to substantiate the claim, while the defendant would explain why it should be considered manifestly unfounded. The opposing party would have 30 days to respond, followed by a hearing within the following 30 days. The court would carry out the procedural and evidentiary steps considered indispensable and would then rule on the early-dismissal application by judgment, subject to ordinary appeal.

The draft would also regulate abusive court proceedings, focusing on the purpose and function of the proceedings rather than solely on the merits of the claim. Courts could take into account, among other circumstances, the disproportionate, excessive or unreasonable nature of the claim, the bringing of multiple proceedings, intimidation, threats or harassment, and analogous conduct in similar or connected cases. Where abuse is established, the consequences could include an order concerning costs, compensation for judicial and extra-judicial legal costs and publication of the judgment.

The draft also transposes Article 17 of the Directive by introducing, in Article 14, a specific action for damages available to a natural or legal person resident, domiciled or established in Italy against a person domiciled outside the European Union who has brought abusive court proceedings against them before a court or other judicial authority of a third country. The provision covers both pecuniary and non-pecuniary damage and confers jurisdiction to the court of the claimant’s place of residence or domicile.

More generally, the draft would thus establish a dedicated procedural framework for Anti-SLAPP litigation, rather than merely relying on or adapting the general rules of the Italian Code of Civil Procedure.

Critical Issues

The draft raises a number of questions concerning the effectiveness of the protection it is intended to provide. they indicate points at which the precise choices made in transposition may affect the practical reach of the protection. For a more detailed legal analysis, the full report is available here.

1. Scope of application

The first issue concerns the circumstances in which the Italian safeguards would apply. This point concerns the definition of a “matter of public interest” and the indicators of abusive proceedings.

The draft departs from the Directive in several respects. First, it refers to activities of a “figure of public relevance”, rather than a public figure in the public or private sector, potentially giving rise to a narrower interpretation. Secondly, it omits the Directive’s express reference to activities aimed at protecting the values enshrined in Article 2 TEU. Thirdly, whereas the Directive refers to the nature of a claim, or part thereof, being disproportionate, excessive or unreasonable, the draft refers only to its amount. Fourthly, the Directive considers multiple proceedings concerning similar matters, while the draft refers to pending proceedings concerning the same or analogous claims based on the same title. Finally, the Directive refers to intimidation, harassment or threats in similar or parallel cases, whereas the draft refers to connected cases.

Taken together, these differences may narrow the scope of the Anti-SLAPP safeguards compared with the Directive. In particular, they may make the assessment more dependent on narrower national procedural categories, rather than preserving the broader and autonomous concepts used by EU law.

2. The notion of “cross-border implications”

The most delicate issue concerns the definition of “cross-border implications”. It is also the point at which three different dimensions of the transposition question come together: compliance with EU law, possible constitutional concerns and alignment with broader European standards.

Article 5(1) of the 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.

Article 3(3) of the Italian draft provides that proceedings brought before an Italian judicial authority do not present cross-border implications where both the claimant and the defendant are domiciled in Italy.

The difference is therefore not merely one of wording, but of legal structure. Under the Directive, the starting point is that the matter is presumed to have cross-border implications, unless two cumulative negative conditions are met. Under the Italian draft, by contrast, proceedings are presumed not to have cross-border implications as soon as one positive condition is met, namely that both parties are domiciled in Italy.

This difference may matter in practice. For example: (i) an Italian journalist and an Italian company litigate in Italy, but the conduct also has an impact (even minimal) on France; (ii) both parties are Italian, but the dispute concerns activities or effects in another Member State; (iii) an online publication concerns an Italian activity but has effects in several countries. Under the Directive, these situations may have cross-border implications; under the draft, they would not.

This is particularly important because “cross-border implications” should not simply be equated with the existence of a traditional private international law dispute. The concept performs a specific function within the Directive and should therefore be understood autonomously for the purposes of EU law. Replacing the Directive’s two-limb test with a single domicile-based criterion may consequently affect the very cases to which the European safeguards apply.

The issue can first be considered from the perspective of EU-law compliance. Although the European Commission is still awaiting Italy’s formal notification of the transposition measures and has therefore not yet assessed the draft itself, it has already addressed the point in a written reply of 28 August 2026. The Commission expressly stated that, where a Member State limits Anti-SLAPP safeguards to matters with cross-border implications, the scope of the national transposition must comply with Article 5 of the Directive. If Article 3(3) of the draft were understood as excluding the cross-border character of proceedings whenever both parties are domiciled in Italy, irrespective of other relevant elements, its scope would therefore appear narrower than that required by Article 5(1). This is particularly significant because the cross-border criterion determines whether the specific guarantees become available in the first place.

The same difference may also raise a constitutional issue of particular significance. Article 6 of Law No 36/2026 specifically required the Government to define the notion of cross-border implications on the basis of the negative condition laid down in Article 5(1) of the Directive. If the final decree were instead to retain only the domicile criterion, the Government could therefore be considered to have departed not only from the Directive, but also from the criteria expressly established by Parliament in the enabling legislation. This may raise an issue of excess of legislative delegation (eccesso di delega legislativa) under Article 76 of the Italian Constitution. Article 76 sets the constitutional limits of delegated legislative power, while the principles and criteria laid down in the enabling law operate as an interposed norm (norma interposta) for the purposes of reviewing the constitutionality of the delegated decree. Where Parliament has expressly prescribed the basis on which a delegated concept is to be defined, the Government must exercise its delegated power consistently with that criterion. A departure from it may therefore raise the question whether the delegated decree has remained within the limits of the delegation and, consequently, complied with Article 76 of the Constitution.

Finally, the issue can also be viewed against broader European standards on protection against SLAPPs. In particular, the Council of Europe Recommendation CM/Rec(2024)2 on strategic lawsuits against public participation (SLAPPs) adopts a broader approach to the protection of public participation. A narrow conception of the cross-border element may therefore limit the practical reach of the Italian safeguards, raising questions not only of compliance with the Directive, but also of their consistency with the broader European framework on effective protection against SLAPPs.

3. Third-country judgments

A further issue concerns judgments originating from third countries.

Article 16 of the Directive requires Member States to refuse recognition and enforcement of a third-country judgment resulting from proceedings concerning public participation where those proceedings are considered manifestly unfounded or abusive under the law of the Member State in which recognition or enforcement is sought.

The Italian draft does not appear to introduce a specific mechanism corresponding to Article 16 of the Directive. Recognition and enforcement of third-country judgments would therefore remain governed by the general rules applicable under Italian law, in particular Article 64 of Law No 218/1995, including the requirement that the effects of the judgment be compatible with Italian public policy (ordine pubblico).

Those general rules may provide a basis for refusing recognition. Yet a general public-policy clause and a specific Anti-SLAPP safeguard perform different functions, and require a different judicial assessment. Public policy addresses the compatibility of the effects of a foreign judgment with fundamental principles of the forum, whereas Article 16 specifically requires consideration of whether the underlying proceedings were manifestly unfounded or abusive in connection with public participation.

The absence of a dedicated provision may therefore raise questions of specificity, predictability and effectiveness. A specific Anti-SLAPP rule would make the relevant ground immediately visible within the recognition framework and expressly connect the judicial assessment to the phenomenon addressed by the Directive.

4. Transitional rules

The temporal application of the new safeguards raises another question.

The draft would apply the new framework to proceedings instituted after its entry into force. While this provides a clear temporal criterion, it also means that proceedings commenced before that date would remain outside the new safeguards even where they continue to produce precisely the effects that the new legislation seeks to address.

A defamation action instituted in 2025 or at least in the first three quarters of 2026, for example, might still be pending when the transposition legislation enters into force in 2026. The defendant could therefore remain exposed to the costs, pressure and potential chilling effect of the proceedings without being able to invoke the new procedural mechanisms simply because the action was commenced earlier.

This is particularly relevant in the Anti-SLAPP context because the potential harm does not necessarily arise only at the moment proceedings are instituted. The litigation may continue for years, generating financial costs, procedural burdens and pressure on the defendant’s participation in public debate.

A strict commencement-date rule may also create an unintended incentive to commence proceedings before the new legislation enters into force in order to avoid its application.

One possible alternative would be to apply the new procedural safeguards to procedural stages or acts occurring after entry into force in pending proceedings, while respecting the limits imposed by the principle of non-retroactivity.

5. Beyond the Directive: domestic, criminal and administrative proceedings

The draft also raises the broader question of whether Italy should use the transposition exercise to provide protection going beyond the minimum scope of the Directive, as also provided for by other Member States in their transpositions.

The Directive establishes safeguards in civil and commercial matters presenting cross-border implications. At the same time, the Directive does not prevent Member States from adopting provisions that provide more favourable protection to persons engaging in public participation. The broader European framework, including the Commission Recommendation on the protection of journalists and human rights defenders involved in public participation, also points towards protection extending beyond purely cross-border situations.

This raises a practical question. The chilling effect produced by potentially abusive litigation does not necessarily depend on the existence of a cross-border element.

The same question arises in relation to criminal and administrative proceedings. A formal distinction based on the procedural classification of the case may not always correspond to the functional phenomenon that Anti-SLAPP safeguards seek to address.

Extending the safeguards to domestic, criminal or administrative proceedings would, however, go beyond the minimum requirements of the Directive. It would therefore constitute a broader legislative choice rather than simply a matter of transposition and may require a legislative basis going beyond the present delegation.

6. Miscellaneous

Several further points of conformity and effectiveness deserve attention.

Modification or withdrawal of claims. Article 4 of the draft allows the parties to agree otherwise, potentially limiting the defendant’s rights following modification or withdrawal of the claim. This qualification is not expressly provided for by Article 8(1) of the Directive and should be clarified to ensure that any agreement can affect the defendant’s rights only in a manner favourable to the SLAPP victim.

Intervention by collective bodies. The draft requires the defendant’s consent for intervention under Article 105(2) of the Code of Civil Procedure, without clearly distinguishing between supporting the defendant and providing information. This may narrow Article 9 of the Directive, which requires consent only for support, not for the provision of information.

Security. Article 10 of the draft makes security conditional on a request for early dismissal, whereas the Directive provides for a general procedural safeguard. It also omits estimated costs, limits damages to those under Article 13, and requires payment in money. The provision should therefore be brought closer into line with the Directive.

Burden of proof. Article 7 of the draft does not expressly reproduce Article 12(2) of the Directive, under which, once early dismissal is requested, the claimant must substantiate the claim to enable the court to assess whether it is manifestly unfounded. This should be expressly reflected in the draft.

Suspension pending appeal. Article 11 of the draft provides for suspension of the main proceedings where the early-dismissal decision is appealed, until the judgment becomes final. This may conflict with the Directive’s requirement of accelerated treatment and should therefore be limited to claims strictly dependent on the outcome of the appeal.

Legal costs. Article 13(2) of the draft limits reimbursement of the defendant’s legal representation costs to the applicable fee tariff, whereas Article 14 of the Directive requires full coverage unless costs are excessive. The draft should therefore ensure recovery of costs actually incurred, subject only to the exclusion of excessive costs.

Appeals. Article 12 of the draft provides for ordinary appeals against early-dismissal decisions. While this formally satisfies Article 13 of the Directive, the absence of accelerated or priority treatment may undermine timely protection against manifestly unfounded claims. Accelerated or priority treatment of such appeals could therefore be considered.

What can courts do if the concerns remain?

The final question is what can happen if some of these differences remain in the final legislation.

The first avenue is consistent interpretation. National courts should, as far as possible, interpret national procedural provisions in the light of the wording and purpose of the Directive ,also having regard to the principle of effectiveness (effet utile) of EU law. In the Anti-SLAPP context, however, this may present a particular challenge: the Directive largely requires the establishment of procedural mechanisms, rather than merely the interpretation of substantive rules. Courts cannot act as legislators or substitute their own choices for those left to the legislator, particularly where the Directive leaves Member States a margin of discretion as to how its provisions are to be implemented. Where the national provision cannot be interpreted consistently with the Directive without going contra legem, that avenue reaches its limits.

Direct effect may provide an additional avenue where the relevant provisions of the Directive are sufficiently clear, precise and unconditional. Vertical direct effect may operate in proceedings against the State or entities/persons attributable to the State. Anti-SLAPP proceedings, however, may typically be horizontal disputes between private parties, in which, according to the settled case law of the Court of Justice of the European Union, directives cannot of themselves impose obligations on one private party vis-à-vis another. The possible relevance of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union in such horizontal situations may nevertheless warrant further consideration.

A preliminary reference may also be relevant where clarification is needed as to the interpretation of autonomous concepts of EU law. At the institutional level, the infringement procedure also remains available to address incorrect or incomplete transposition; in Italy’s case, the Commission has already initiated such a procedure for failure to notify the transposition measures in July 2026 (already noted on this blog).

If the concerns identified above were to remain, the consequences may go beyond gaps in protection. Reliance on judicial interpretation to fill gaps in transposition may also create uncertainty and divergent application, as different courts – or even different judges within the same court – may interpret the national provisions differently in the light of EU law. This may ultimately undermine legal certainty and the uniformity and predictability of Anti-SLAPP protection.

The text adopted will show whether the issues discussed above have been addressed.

This is why transposition can make the difference: the choices made in implementing the Directive may determine whether its protection can operate effectively within national procedure.