What changed

SHORT JUSTIFICATION

ORDINARY LEGISLATIVE procedure

On 27Follow Aprilup 2022,to the European CommissionParliament publishedlegislative itsresolution legislativeon the proposal for a directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”).participation”)

Overall, the Rapporteur welcomes the proposal and suggests improvements in order to clarify certain provisions, especially those related to the terminology, the definitions, and to the scope of the directive, aiming at strengthening citizen’s EU protection.

1. Rapporteur: Tiemo WÖLKEN (S&D / DE)

The Rapporteur would like to highlight that the so-called SLAPPs – as lawsuits filed with an improper purpose – are abusive by their very nature. If a case is “manifestly unfounded”, this indicates its abusive nature. Since all abusive lawsuits should be filtered out of the court system and made subject to sanctions, the Rapporteur proposes to remove the divide between “manifestly unfounded” and “abusive”, ensuring that all procedural safeguards apply to both, with a special focus on early dismissal, costs security, damage compensation and sanctions. As the commonly used term “Strategic lawsuits against public participation” may appear unclear for the purpose of legislating, given the difficulty of using and defining the term “strategic” in particular in EU civil law systems, the Rapporteur proposes to use the term “abusive lawsuits against public participation” as a catch-all term throughout the text, while nevertheless keeping the established abbreviation “SLAPP” for better communication purposes, to avoid confusion and to keep the links with relevant texts from the Council and the UN.

2. Reference numbers: 2022/0117 (COD) / A9-0223/2023 / P9_TA(2024)0085

Furthermore, the Rapporteur believes it is important to highlight the Directive’s broad personal scope, which shall extend to claims brought against any natural or legal person engaging – directly or indirectly – in public participation. The explicit mention of particular categories of SLAPP targets by way of example, e.g. civil society, non-governmental organisations and trade unions, as well as researchers, scientists, academics, artists, whistleblowers and publishers, shall reflect the wide range of actors impacted by this phenomenon across the EU. At the same time, there is a focus on journalists and human rights defenders in certain recitals to keep the initial aim of text, as they are the majority of SLAPPs victims. A special reference is added to reflect the worrying gender-based rise of SLAPPs. It is also proposed to broaden third party legal interventions including professional associations to strengthen the representation of the rights of persons engaging in public participation.

3. Date of adoption of the resolution: 27 February 2024

A very important aspect for the Rapporteur is to make sure that the new Directive applies to pending cases, commenced or continued before a national court at the time of its entry into force, as well as to civil claims brought in criminal proceedings, while administrative matters are to be narrowly interpreted to strengthen citizens’ protection from claims abusively grounded on provisions of an administrative nature.

4. Legal basis: Article 81(2)(f) of the Treaty on the Functioning of the European Union

Moreover, the Rapporteur proposes to include references to several other rights and freedoms that are inherently linked to the exercise of freedom of expression and information, e.g. the right to freedom of association and assembly as well as to freedom of the arts, culture and science, with a view to anchor the instrument to a comprehensive and rights-based definition of the notion of “public participation” which should be intended as participation in public life and decision-making, but also in the exercise of a watchdog role to promote accountability for activity that is deemed illegal, immoral, illicit, unsafe or fraudulent.

5. Competent Parliamentary Committee: Committee on Legal Affairs (JURI)

Public participation should clearly include as well artistic, cultural, research and scientific activities, while the digital environment is also included, in order to make sure that protected public participation activities include the right of expression online as well.

6. Commission's position: accepts all amendments. The Commission presented the following statement in plenary:

Additionally, the Rapporteur believes it is important to ensure a rights-based notion of “matter of public interest”. As part of e.g. public health and sustainable consumption, large-scale violations of working conditions or human rights in supply chains may also be of public interest. This shall be made clear so as to ensure that workers or organisations reporting such wrongdoings do not become target of SLAPPs, in line with the Whistle-blower Protection Directive and to support the effective monitoring and enforcement of the pending proposals for an EU Directive on Corporate Sustainability Due Diligence and an EU Regulation on Forced Labour.

The Commission takes note of the rules on international jurisdiction and applicable law the European Parliament proposed in its mandate for the negotiations on the proposal for a directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings.

Furthermore, the Rapporteur welcomes the Directive’s innovative perspective for “cross-border” covering certain domestic cases and suggests that it be broadly interpreted according with its relevance to the concept of the “matter of public interest”, instead of mere practical implications for different member states, especially in today’s digital world and to strengthen EU safeguards against forum shopping and against SLAPPs from third countries.

The Commission agrees on the importance of rules on jurisdiction and applicable law in the context of a comprehensive protection against abusive litigation in SLAPP cases. For this reason, in its recent legal studies on the Brussels Ia and Rome II Regulations, the Commission has specifically addressed these SLAPP-related matters.

A clear burden of proof on the claimant is of absolute importance and therefore, the Rapporteur replaces the “manifestly unfounded” threshold with a requirement for the claimant to establish a “prima facie” case as to each essential element of the cause of action.

However, such changes should be made in the horizontal Regulations covering international jurisdiction and applicable law to avoid a fragmentation of these rules across various instruments, and they should be proposed with a careful assessment of the impact of such changes.

Finally, education and awareness raising, as well as a review of deontological standards of legal professionals, are also suggested by the Rapporteur as enablers towards the effective implementation of the Directive.

Consequently, the Commission will continue the already-ongoing review process concerning the Brussels Ia and Rome II Regulations. It’s the firm intention of the Commission to issue application reports on both these instruments with a particular focus on SLAPP in the near future in order to facilitate the political decisions on their revision.

Notably, Rapporteur’s suggestions were drafted after taking due account of input deriving from civil society organisations which include.

 The Coalition against SLAPPs in Europe

 Transparency International

 Civil Liberties Union for Europe

 Committee to Protect Journalists

 Greenpeace International

 the Daphne Caruana Galizia Foundation

 Culture Action Europe

 News Media Europe

AMENDMENTS

The Committee on Culture and Education calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1

Proposal for a directive

Title

Or. en

Justification

The dichotomy of “abusive proceedings” versus “manifestly unfounded proceedings” should be removed, with all SLAPPs subject to proposed protective measures such as an early dismissal mechanism and dissuasive sanctions alike. This recognises that SLAPPs – as lawsuits filed with an improper purpose – are by their very nature abusive, and that if a case is “manifestly unfounded” that is itself indicative of its abusive nature. Since all abusive lawsuits should be filtered out of the court system and made subject to sanctions, the divide between “manifestly unfounded” and “abusive” should be dismantled. As the commonly used term ‘Strategic lawsuits against public participation’ may appear unclear for the purpose of legislating, given the difficulty of using and defining the term ‘strategic’ in particular in EU civil law systems, it is therefore proposed to use the term ‘abusive lawsuits against public participation’ as a catch-all term throughout the text.

Amendment 2

Proposal for a directive

Recital 2

Or. en

Amendment 3

Proposal for a directive

Recital 3 a (new)

Or. en

Amendment 4

Proposal for a directive

Recital 3 b (new)

Or. en

Amendment 5

Proposal for a directive

Recital 4

Or. en

Amendment 6

Proposal for a directive

Recital 5

Or. en

Amendment 7

Proposal for a directive

Recital 6

Or. en

Amendment 8

Proposal for a directive

Recital 7

Or. en

Amendment 9

Proposal for a directive

Recital 7 a (new)

Or. en

Amendment 10

Proposal for a directive

Recital 8

Or. en

Amendment 11

Proposal for a directive

Recital 9

Or. en

Amendment 12

Proposal for a directive

Recital 10

Or. en

Amendment 13

Proposal for a directive

Recital 11

Or. en

Amendment 14

Proposal for a directive

Recital 12 a (new)

Or. en

Amendment 15

Proposal for a directive

Recital 16

Or. en

Amendment 16

Proposal for a directive

Recital 17

Or. en

Amendment 17

Proposal for a directive

Recital 18

Or. en

Amendment 18

Proposal for a directive

Recital 20

Or. en

Amendment 19

Proposal for a directive

Recital 22

Or. en

Amendment 20

Proposal for a directive

Recital 24 a (new)

Or. en

Amendment 21

Proposal for a directive

Recital 26

Or. en

Amendment 22

Proposal for a directive

Recital 30

Or. en

Amendment 23

Proposal for a directive

Recital 31

Or. en

Amendment 24

Proposal for a directive

Recital 32

Or. en

Amendment 25

Proposal for a directive

Recital 33

Or. en

Amendment 26

Proposal for a directive

Recital 34

Or. en

Amendment 27

Proposal for a directive

Recital 34 a (new)

Or. en

Amendment 28

Proposal for a directive

Recital 34 b (new)

Or. en

Amendment 29

Proposal for a directive

Recital 35 a (new)

Or. en

Amendment 30

Proposal for a directive

Recital 36

Or. en

Amendment 31

Proposal for a directive

Article 1 – paragraph 1

Or. en

Amendment 32

Proposal for a directive

Article 2 – paragraph 1

Or. en

Amendment 33

Proposal for a directive

Article 3 – paragraph 1 – point 1

Or. en

Amendment 34

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point a

Or. en

Amendment 35

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point e a (new)

Or. en

Amendment 36

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point e b (new)

Or. en

Amendment 37

Proposal for a directive

Article 3 – paragraph 1 – point 3 – introductory part

Or. en

Amendment 38

Proposal for a directive

Article 3 – paragraph 1 – point 3 – point -a (new)

Or. en

Amendment 39

Proposal for a directive

Article 3 – paragraph 1 – point 3 – point a a (new)

Or. en

Amendment 40

Proposal for a directive

Article 4 – paragraph 2 – point a

Or. en

Amendment 41

Proposal for a directive

Chapter II – title

Or. en

Amendment 42

Proposal for a directive

Article 5 – paragraph 1 – point b

Or. en

Amendment 43

Proposal for a directive

Article 5 – paragraph 1 – point c

Or. en

Amendment 44

Proposal for a directive

Article 5 – paragraph 3

Or. en

Amendment 45

Proposal for a directive

Article 7 – paragraph 1

Or. en

Amendment 46

Proposal for a directive

Article 8 – paragraph 1

Or. en

Amendment 47

Proposal for a directive

Article 8 – paragraph 1 a (new)

Or. en

Amendment 48

Proposal for a directive

Chapter III – title

Or. en

Amendment 49

Proposal for a directive

Article 9 – paragraph 1

Or. en

Amendment 50

Proposal for a directive

Article 12 – paragraph 1

Or. en

Amendment 51

Proposal for a directive

Article 12 – paragraph 1 a (new)

Or. en

Amendment 52

Proposal for a directive

Article 13 – paragraph 1

Or. en

Amendment 53

Proposal for a directive

Chapter IV – title

Or. en

Amendment 54

Proposal for a directive

Article 14 – paragraph 1

Or. en

Amendment 55

Proposal for a directive

Article 14 – paragraph 1 a (new)

Or. en

Amendment 56

Proposal for a directive

Article 15 – paragraph 1

Or. en

Amendment 57

Proposal for a directive

Article 15 – paragraph 1 a (new)

Or. en

Amendment 58

Proposal for a directive

Article 16 – paragraph 1

Or. en

Amendment 59

Proposal for a directive

Article 16 a (new)

Or. en

Amendment 60

Proposal for a directive

Article 17 – paragraph 1 a (new)

Or. en

Amendment 61

Proposal for a directive

Article 18 – paragraph 1

Or. en