What changed

ORDINARY LEGISLATIVE procedure

SHORT JUSTIFICATION

Follow up to the European Parliament legislative resolution 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”)

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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.

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.

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.

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.

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, 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.

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.

AMENDMENTS

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:

Amendment 1

Proposal for a directive

Title 1

Or. en

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 4

Or. en

Amendment 5

Proposal for a directive

Recital 7

Or. en

Amendment 6

Proposal for a directive

Recital 9

Or. en

Amendment 7

Proposal for a directive

Recital 13

Or. en

Amendment 8

Proposal for a directive

Recital 16

Or. en

Amendment 9

Proposal for a directive

Recital 18

Or. en

Amendment 10

Proposal for a directive

Recital 20

Or. en

Amendment 11

Proposal for a directive

Recital 23

Or. en

Amendment 12

Proposal for a directive

Recital 26

Or. en

Amendment 13

Proposal for a directive

Recital 30

Or. en

Amendment 14

Proposal for a directive

Recital 34 a (new)

Or. en

Amendment 15

Proposal for a directive

Recital 35 a (new)

Or. en

Amendment 16

Proposal for a directive

Article 1 – paragraph 1

Or. en

Amendment 17

Proposal for a directive

Article 3 – paragraph 1 – point 1

Or. en

Amendment 18

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point a

Or. en

Amendment 19

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point d

Or. en

Amendment 20

Proposal for a directive

Article 3 – paragraph 1 – point 2 – point e

Or. en

Amendment 21

Proposal for a directive

Article 3 – paragraph 1 – point 3 – introductory part

Or. en

Amendment 22

Proposal for a directive

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

Or. en

Amendment 23

Proposal for a directive

Article 5 – paragraph 1 – point b

Or. en

Amendment 24

Proposal for a directive

Article 5 – paragraph 3

Or. en

Amendment 25

Proposal for a directive

Article 7 – paragraph 1

Or. en

Amendment 26

Proposal for a directive

Chapter III – title

Or. en

Amendment 27

Proposal for a directive

Article 9 – paragraph 1

Or. en

Amendment 28

Proposal for a directive

Article 12 – paragraph 1

Or. en

Amendment 29

Proposal for a directive

Article 12 – paragraph 1 a (new)

Or. en

Amendment 30

Proposal for a directive

Article 19 a (new)

Or. en

Amendment 31

Proposal for a directive

Article 20 – paragraph 1

Or. en