What changed

SHORT JUSTIFICATION

P9_TA(2024)0085

Strategic lawsuits against public participation (SLAPPs) are not a new problem to the European Union. The occurrence of such lawsuits has been on a constant rise in Europe, as documented by several independent organisations monitoring the phenomenon. Research and awareness on the matter grew higher following the assassination of the Maltese investigative journalist Daphne Caruana Galizia, in October 2017. At the time of her death, Daphne Caruana Galizia had 48 such lawsuits intended against her. These abusive proceedings continued even after her death, when they were passed on to her family, causing enormous financial and psychological burdens to their targets.

Protection of journalists and human rights defenders from manifestly unfounded or abusive court proceedings

Research done by the Coalition Against SLAPPs in Europe (CASE) has highlighted the sustained increase in the number of SLAPPs since 2016, with figures increasing by over 400 % in 2021. The CASE research underlines the scale of the problem highlighting that in Croatia alone, by April 2021, they had identified nearly 1000 active lawsuits against media. The research presented various examples from different Member States such as Poland, France, Italy, Malta or Slovenia, underlining the European dimension of the issue and the need for a common European solution.

Committee on Legal Affairs

SLAPPs may be either fully or partially unfounded claims. However, the two common points designating SLAPPs are the abusive use of the judicial process and their use in relation to public participation. SLAPPs are therefore brought for purposes other than genuinely asserting, vindicating or exercising a right and rather aim to prevent, restrict or penalise public participation. Through the abusive use of the judicial system, SLAPPs not only produce significant financial and psychological damage to their victims, but also restrict access to justice to other citizens, by overburdening the judicial system. Such claims are often characterised by an imbalance of power, but not always. The existence of multiple proceedings, the disproportionate nature of the claim, as well as the use of dilatory and vexatious tactics are further indications of the abusive nature of SLAPPs. The approach chosen is to create a clear definition that includes both manifestly unfounded claims as well as claims that hold some legal merits, but which entail the aforementioned characteristics and lead to an abuse of rights.

PE745.170

The victims of SLAPPs cover a wide variety of subjects. Victims may be both natural or legal persons, ranging from journalists and media outlets, to activists, editors, human rights defenders and even single private individuals. The common point of these categories is their engagement in public participation. SLAPPs may be used directly or indirectly against anyone engaged in public participation and may also target subjects involved in preparatory or supporting activities thereof. This Directive must offer the appropriate protection for all such categories.

European Parliament legislative resolution of 27 February 2024 on 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”) (COM(2022)0177 – C9-0161/2022 – 2022/0117(COD))

In order to address the issue in an efficient and comprehensive manner, the definition of public participation must also be broadened, as to include activities carried out in the exercise of various rights, besides that of freedom of expression and information. Practical situations have demonstrated that the definition should include a non-exhaustive list, covering among others the freedoms of association and assembly, as well as academic freedoms. Given the high number of SLAPPs against journalists and media workers, it is essential that media pluralism and media freedom are covered by the definition of what constitutes a matter of public interest linked to the engagement in public participation.

(Ordinary legislative procedure: first reading)

In order for this Directive to produce the desired effect of protecting those engaging in public participation from abusive litigation, its provisions must outline several procedural safeguards, including an effective early dismissal mechanism, available either ex officio or at the application of the defendant. The admissibility of an early dismissal mechanism cannot be subject to a higher threshold than that of other procedural safeguards. The Directive must not discriminate between different categories of SLAPPs. To achieve this, the mechanism shall be broadened and made accessible to all victims of SLAPPs. The proposed approach with regard to procedural safeguards, and to the early dismissal mechanism in particular, is to abandon the Commission dichotomy between manifestly unfounded and abusive cases.

The European Parliament,

For the purposes of an effective early dismissal mechanism, the burden of proof for the court assessment on the matter shall lie with the claimant. The proposed approach is to ask the claimant to only establish a prima facie case as to each element of the cause of action, where it is satisfied that the claim is not abusive. This threshold balances the rights of the defendant, with that of access to justice on the side of the claimant, given the abandonment of the initial availability of the early dismissal mechanism only for manifestly unfounded cases.

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0177),

The Commission proposal is an excellent first step towards ending abusive litigation against public participation and comes at a time when statistics highlighted the need for a common European solution. The proposal would however only address a small part of the problem, as Union level competence is limited on matters of procedural law. It is therefore essential that further measures are taken by the Member States complementing those taken at Union level. Upon entry into force of this Directive, Member States should not limit the extension of these provisions only to cross border cases in matters of civil and commercial law, but also extend them to domestic cases and to cases governed by criminal law. At the same time, following the period of review, the Commission should also take into consideration the possibility of tackling criminal cases of SLAPPs, through the appropriate legal measures.

– having regard to Article 294(2) and Article 81(2)(f) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90161/2022),

The implementation of the recommendation accompanying this legislative proposal is also essential for its effectiveness. In this regard, Member States should also consider introducing dedicated rules governing the ethic codes of lawyers and other legal practitioners, as to sanction the participation in initiating SLAPPs or disguising them as founded claims.

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Finally, as another step forward, the Commission should review the Brussels Ia and RomeII Regulations, in order to address any other potential instances of forum shopping, not covered by this Directive.

– having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the French Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

AMENDMENTS

– having regard to the opinion of the European Economic and Social Committee of 26 October 2022,

The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

– having regard to the provisional agreement approved by the committee responsible under Rule 74(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 20 December 2023 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

Amendment 1

– having regard to Rule 59 of its Rules of Procedure,

Proposal for a directive

– having regard to the opinions of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Culture and Education,

Title

– having regard to the report of the Committee on Legal Affairs (A9-0223/2023),

Amendment 2

1. Adopts its position at first reading hereinafter set out;

Proposal for a directive

2. Suggests that the act be cited as 'the Wölken-Bolaños García Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)';

Citation 2 a (new)

3. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

Amendment 3

4. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Proposal for a directive

P9_TC1-COD(2022)0117

Recital 2

Position of the European Parliament adopted at first reading on 27 February 2024 with a view to the adoption of Directive (EU) 2024/… of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’)

Amendment 4

(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Directive (EU) 2024/1069.)

Proposal for a directive

Recital 3

Amendment 5

Proposal for a directive

Recital 3 a (new)

Amendment 6

Proposal for a directive

Recital 3 b (new)

Amendment 7

Proposal for a directive

Recital 4

Amendment 8

Proposal for a directive

Recital 4 a (new)

Amendment 9

Proposal for a directive

Recital 5

Amendment 10

Proposal for a directive

Recital 6

Amendment 11

Proposal for a directive

Recital 7

Amendment 12

Proposal for a directive

Recital 7 a (new)

Amendment 13

Proposal for a directive

Recital 7 b (new)

Amendment 14

Proposal for a directive

Recital 7 c (new)

Amendment 15

Proposal for a directive

Recital 9

Amendment 16

Proposal for a directive

Recital 10

Amendment 17

Proposal for a directive

Recital 11

Amendment 18

Proposal for a directive

Recital 12

Amendment 19

Proposal for a directive

Recital 13

Amendment 20

Proposal for a directive

Recital 13 a (new)

Amendment 21

Proposal for a directive

Recital 14

Amendment 22

Proposal for a directive

Recital 16

Amendment 23

Proposal for a directive

Recital 16 a (new)

Amendment 24

Proposal for a directive

Recital 17

Amendment 25

Proposal for a directive

Recital 18

Amendment 26

Proposal for a directive

Recital 19 a (new)

Amendment 27

Proposal for a directive

Recital 20

Amendment 28

Proposal for a directive

Recital 20 a (new)

Amendment 29

Proposal for a directive

Recital 23

Amendment 30

Proposal for a directive

Recital 23 a (new)

Amendment 31

Proposal for a directive

Recital 25 a (new)

Amendment 32

Proposal for a directive

Recital 30

Amendment 33

Proposal for a directive

Recital 30 a (new)

Amendment 34

Proposal for a directive

Recital 34 a (new)

Amendment 35

Proposal for a directive

Recital 35 a (new)

Amendment 36

Proposal for a directive

Recital 36

Amendment 37

Proposal for a directive

Recital 36 a (new)

Amendment 38

Proposal for a directive

Recital 36 b (new)

Amendment 39

Proposal for a directive

Recital 36 c (new)

Amendment 40

Proposal for a directive

Recital 36 d (new)

Amendment 41

Proposal for a directive

Recital 36 e (new)

Amendment 42

Proposal for a directive

Article 1 – paragraph 1

Amendment 43

Proposal for a directive

Article 1 – paragraph 1 a (new)

Amendment 44

Proposal for a directive

Article 3 – paragraph 1 – point 1

Amendment 45

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point a

Amendment 46

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point c

Amendment 47

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point d

Amendment 48

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point e

Amendment 49

Proposal for a directive

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

Amendment 50

Proposal for a directive

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

Amendment 51

Proposal for a directive

Article 3 – paragraph 1 – point 3 – introductory part

Amendment 52

Proposal for a directive

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

Amendment 53

Proposal for a directive

Article 3 – paragraph 1 – point 3 – point b

Amendment 54

Proposal for a directive

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

Amendment 55

Proposal for a directive

Article 3 – paragraph 1 – point 3 – point c b (new)

Amendment 56

Proposal for a directive

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

Amendment 57

Proposal for a directive

Article 3 – paragraph 1 – point 3 – point c d (new)

Amendment 58

Proposal for a directive

Article 5 – paragraph 1 – point b

Amendment 59

Proposal for a directive

Article 5 – paragraph 3

Amendment 60

Proposal for a directive

Article 5 – paragraph 3 a (new)

Amendment 61

Proposal for a directive

Article 7 – title

Amendment 62

Proposal for a directive

Article 7 – paragraph 1

Amendment 63

Proposal for a directive

Article 7 a (new)

Amendment 64

Proposal for a directive

Chapter III – title

Amendment 65

Proposal for a directive

Article 9 – paragraph 1

Amendment 66

Proposal for a directive

Article 9 – paragraph 2

Amendment 67

Proposal for a directive

Article 12 – paragraph 1

Amendment 68

Proposal for a directive

Chapter V a (new)

Amendment 69

Proposal for a directive

Chapter V b (new)

Amendment 70

Proposal for a directive

Article 19 a (new)

Amendment 71

Proposal for a directive

Article 20 – paragraph 1

Amendment 72

Proposal for a directive

Article 20 – paragraph 1 a (new)

PROCEDURE – COMMITTEE ASKED FOR OPINION

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION