Sittings · Document
DRAFT OPINION (COM(2022)0177 – C90161/2022 – 2022/0117(COD)) 2023-02-20
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”)
Committee on Culture and Education · Rapporteur: Alexis Georgoulis
SHORT JUSTIFICATION
On 27 April 2022, the European Commission published its legislative proposal for a directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
| Text proposed by the Commission | Amendment |
| Proposal for a | Proposal for a |
| DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL | 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”) | on protecting persons from abusive lawsuits against public participation (SLAPPs) |
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
| Text proposed by the Commission | Amendment |
| (2) Article 10(3) of the Treaty on European Union states that every Union citizen has the right to participate in the democratic life of the Union. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides, inter alia, for the rights to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information, which includes respect for the freedom and pluralism of the media (Article 11), and to an effective remedy and to a fair trial (Article 47). | (2) Article 10(3) of the Treaty on European Union states that every Union citizen has the right to participate in the democratic life of the Union. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides, inter alia, for the rights to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information, which includes respect for the freedom and pluralism of the media (Article 11), freedom of assembly and of association (Article 12) and to an effective remedy and to a fair trial (Article 47). |
Or. en
Amendment 3
Proposal for a directive
Recital 3 a (new)
| Text proposed by the Commission | Amendment |
| (3 a) As recognised by consistent jurisprudence of the European Court of Human Rights (ECtHR) in relation to the interpretation of relevant provisions of the European Convention on Human Rights (ECHR), in the light of which the Charter shall be interpreted and applied pursuant to its Article 52(3), the right to freedom of expression and information may also be given expression through the exercise of other rights and freedoms, including the right to freedom of assembly and of association, as set forth in Article 12 of the Charter, and the freedom of the arts and sciences, including academic freedom, as set forth in Article 13 of the Charter. Article 12 of the Charter also explicitly guarantees the right of everyone to form and to join trade unions for the protection of his or her interests, which is further consolidated in Article 28 of the Charter, guaranteeing the right of collective bargaining and action. |
Or. en
Amendment 4
Proposal for a directive
Recital 3 b (new)
| Text proposed by the Commission | Amendment |
| (3 b) Article 13 of the Charter defines a self-standing fundamental freedom of art and science, in recalling that the arts and scientific research shall be free of constraint and academic freedom respected. |
Or. en
Amendment 5
Proposal for a directive
Recital 4
| Text proposed by the Commission | Amendment |
| (4) The purpose of this Directive is to provide protection to natural and legal persons who engage in public participation on matters of public interest, in particular journalists and human rights defenders, against court proceedings, which are initiated against them to deter them from public participation (commonly referred to as strategic lawsuits against public participation or ‘SLAPPs’). | (4) The purpose of this Directive is to provide protection to natural and legal persons who engage in public participation on matters of public interest, in particular journalists and human rights defenders, including civil society, non-governmental organisations and trade unions, as well as researchers, academics, artists, whistleblowers and publishers of journalistic and artistic works, against abusive court proceedings, which are initiated against them to deter them from public participation (commonly referred to as strategic lawsuits against public participation or ‘SLAPPs’). |
Or. en
Amendment 6
Proposal for a directive
Recital 5
| Text proposed by the Commission | Amendment |
| (5) Journalists play an important role in facilitating public debate and in the imparting and reception of information, opinions and ideas. It is essential that they are afforded the necessary space to contribute to an open, free and fair debate and to counter disinformation, information manipulation and interference. Journalists should be able to conduct their activities effectively to ensure that citizens have access to a plurality of views in European democracies. | (5) Journalists and press publishers play an important role in facilitating public debate and in the imparting and reception of information, opinions and ideas. It is essential that they are afforded the necessary space to contribute to an open, free and fair debate and to counter disinformation, information manipulation and interference. Journalists should be able to conduct their activities effectively to ensure that citizens have access to a plurality of views in European democracies. |
Or. en
Amendment 7
Proposal for a directive
Recital 6
| Text proposed by the Commission | Amendment |
| (6) Investigative journalists in particular play a key role in combating organised crime, corruption and extremism. Their work carries particularly high risks and they are experiencing a growing number of attacks and harassment. A robust system of safeguards is needed to enable them to fulfil their crucial role as watchdogs on matters of legitimate public interest. | (6) Investigative journalists in particular, including documentary filmmakers, play a key role in combating organised crime, corruption and extremism. Their work carries particularly high risks and they are experiencing censorhip, pressure on influence over political or market interests and a growing number of online and offline intimidation, threats, stigmatization, hate-speech, public shaming, trolling, wiretapping and the use of spyware and ransomware, imprisonment, harassment, violence, attacks, physical assault, rape and murder, including gender-based and against marginalized and vulnerable groups. A robust system of safeguards against every type of abuse or violence according to the EU Action Plan on Human Rights and Democracy 2020-2024 is urgently needed to address accountability gaps and erosion of the rule of law and to enable them to fulfil their crucial role as watchdogs on matters of legitimate public interest. |
Or. en
Amendment 8
Proposal for a directive
Recital 7
| Text proposed by the Commission | Amendment |
| (7) Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. They should be able to participate actively in public life and make their voice heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms. Other participants in public debate, such as academics and researchers, also deserve adequate protection. | (7) Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection and the rule of law. They should be able to participate actively in public life, promote accountability, and make their voice heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights, trade union rights or religious freedoms. Other participants in online and offline public debate, such as academics and researchers, scientists, educators, artists, cultural workers, social media activists and whistleblowers also deserve adequate protection. |
Or. en
Amendment 9
Proposal for a directive
Recital 7 a (new)
| Text proposed by the Commission | Amendment |
| (7 a) Women, LGBTIQ and gender rights defenders play a crucial role in achieving a gender-equal Europe. They should be able to promote accountability and have their voice heard in any case of gender-based harassement, violence, abuse or abuse of power relations, without suffering a second wave of gender-based harassement as victims of SLAPPs. Therefore, the objectives and provisions of this Directive are linked and should be interpreted towards the highest possible protection of gender-based SLAPP victims, also along with all relevant EU policies, including but not limited to the EU Equality Strategy, the new EU-wide proposal for a directive to combat violence against women and domestic violence, the Gender Equality Directives, the Directive on gender balance in corporate boards, the EU Strategy on victims’ rights (2020-2025), the LGBTIQ Equality Strategy 2020-2025 25, the Strategy for the Rights of Persons with Disabilities 2021-2030, and the European Pillar of Social Rights Action Plan, the Gender Action Plan III and the EU Crime Initiative and all relevant texts in the future. |
Or. en
Amendment 10
Proposal for a directive
Recital 8
| Text proposed by the Commission | Amendment |
| (8) A healthy and thriving democracy requires that people are able to participate actively in public debate without undue interference by public authority or other powerful actors, be they domestic or foreign. In order to secure meaningful participation, people should be able to access reliable information, which enables them to form their own opinions and exercise their own judgement in a public space in which different views can be expressed freely. | (8) A healthy and thriving democracy requires that people are able to participate actively in public debate without undue interference by public authority or other powerful actors, be they domestic or foreign. In order to secure meaningful participation, people should be able to access reliable information, which enables them to form their own opinions and exercise their own judgement in a public space in which different views can be expressed freely. Therefore, it is crucial to promote and support awareness raising, critical thinking and media literacy, including through education and training curricula in the member states, while enabling horizontally all relevant EU policies, such as but not limited to the European Education Area, the Digital Education Action Plan 2021-2027, the European Skills Agenda and the European Year of Skills - 2023. |
Or. en
Amendment 11
Proposal for a directive
Recital 9
| Text proposed by the Commission | Amendment |
| (9) To foster this environment, it is important to protect journalists and human rights defenders from court proceedings against public participation. Such court proceedings are not initiated for the purpose of access to justice, but to silence public debate typically using harassment and intimidation. | (9) To foster this environment, it is important to protect all natural and legal persons who engage in public participation from court proceedings against public participation. Such court proceedings are not initiated for the purpose of access to justice, but to silence public debate typically using harassment and intimidation. |
Or. en
Amendment 12
Proposal for a directive
Recital 10
| Text proposed by the Commission | Amendment |
| (10) SLAPPs are typically initiated by powerful entities, for example individuals, lobby groups, corporations and state organs. They often involve an imbalance of power between the parties, with the claimant having a more powerful financial or political position than the defendant. Although not being an indispensable component of such cases, where present, an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation. | (10) SLAPPs are typically initiated by powerful entities, for example individuals, lobby groups, corporations and state organs. They often involve an imbalance of power between the parties, with the claimant having a more powerful financial or political position than the defendant. Although not being an indispensable component of such cases, where present, an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation, severely harming democracy. |
Or. en
Amendment 13
Proposal for a directive
Recital 11
| Text proposed by the Commission | Amendment |
| (11) Court proceedings against public participation may have an adverse impact on the credibility and reputation of journalists and human rights defenders and exhaust their financial and other resources. Because of such proceedings, the publication of information on a matter of public interest may be delayed or altogether avoided. The length of procedures and the financial pressure may have a chilling effect on journalists and human rights defenders. The existence of such practices may therefore have a deterrent effect on their work by contributing to self-censorship in anticipation of possible future court proceedings, which leads to the impoverishment of public debate to the detriment of society as a whole. | (11) Court proceedings against public participation may have an adverse impact on the credibility and reputation of targeted natural or legal persons such as journalists and human rights defenders and exhaust their financial and other resources. Because of such proceedings, the publication of information on a matter of public interest may be delayed or altogether avoided. The length of procedures and the financial pressure may have a chilling effect on journalists and human rights defenders, academics, researchers, artists and any one active in public participation. The existence of such practices may therefore have a deterrent effect on their work by contributing to self-censorship in anticipation of possible future court proceedings, which leads to the impoverishment of public debate to the detriment of society as a whole. |
Or. en
Amendment 14
Proposal for a directive
Recital 12 a (new)
| Text proposed by the Commission | Amendment |
| (12 a) To foster prevention of SLAPP initiation and protection of targeted natural or legal persons it is crucial to promote relevant information, awareness raising, campaigns, education and training, including on their rights and protection mechanisms. Such initiatives should be regularly implemented, have a monitoring of their effect and included in the education curricula, in line with the needs raised by professional associations and stakeholders, as well as with EU policies such as but not limited to the European Skills Agenda and the renewed Vocational Education and Training policy, or possible relevant future texts. |
Or. en
Amendment 15
Proposal for a directive
Recital 16
| Text proposed by the Commission | Amendment |
| (16) Public participation should mean any statement or activity by a natural or legal person expressed or carried out in exercise of the right to freedom of expression and information on a matter of public interest, such as the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, commentary or satirical communications, publications or works, and any preparatory activities directly linked thereto. It can also include activities related to the exercise of the right to freedom of association and peaceful assembly, such as the organisation of or participation to lobbying activities, demonstrations and protests or activities resulting from the exercise of the right to good administration and the right to an effective remedy, such as the filing of complaints, petitions, administrative and judicial claims and participation in public hearings. Public participation should also include preparatory, supporting or assisting activities that have a direct and inherent link to the statement or activity in question and that are targeted to stifle public participation. In addition, it can cover other activities meant to inform or influence public opinion or to further action by the public, including activities by any private or public entity in relation to an issue of public interest, such as the organisation of or participation to research, surveys, campaigns or any other collective actions. | (16) Public participation should mean any statement or activity by a natural or legal person expressed or carried out, also on the digital environment, in exercise of the right to freedom of expression and information on a matter of public interest, such as the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, commentary or satirical communications, publications or works, and any preparatory activities directly linked thereto. It can also include activities related to the exercise of the right to freedom of association and peaceful assembly, such as the organisation of or participation to lobbying activities, demonstrations and protests or activities resulting from the exercise of the right to good administration and the right to an effective remedy, such as the filing of complaints, petitions, administrative and judicial claims and participation in public hearings. Public participation should also include preparatory, supporting or assisting activities that have a direct and inherent link to the statement or activity in question and that are targeted to stifle public participation. In addition, it can cover other activities meant to inform or influence public opinion or to further action by the public, including activities by any private or public entity in relation to an issue of public interest, such as the organisation of or participation to research, surveys, campaigns or any other collective actions. |
Or. en
Amendment 16
Proposal for a directive
Recital 17
| Text proposed by the Commission | Amendment |
| (17) Public participation should not normally cover commercial advertisement and marketing activity, which are typically not made in the exercise of freedom of expression and information. | (17) Public participation should not normally cover commercial advertisement and marketing activity, unless they are carried out in a way which genuinely contributes to fostering a balanced public debate on a matter of public interest . |
Or. en
Amendment 17
Proposal for a directive
Recital 18
| Text proposed by the Commission | Amendment |
| (18) The notion of a matter of public interest should include also quality, safety or other relevant aspects of goods, products or services where such matters are relevant to public health, safety, the environment, climate or enjoyment of fundamental rights. A purely individual dispute between a consumer and a manufacturer or a service provider concerning a good, product or service should be covered only when the matter contains an element of public interest, for instance concerning a product or service which fails to comply with environmental or safety standards. | (18) The notion of a matter of public interest should include also quality, safety or other relevant aspects of goods, products or services, including the conditions under which these are produced or provided, where such matters are relevant to public health, safety, the environment, climate or enjoyment of fundamental rights. A purely individual dispute between a consumer and a manufacturer or a service provider concerning a good, product or service should be covered only when the matter contains an element of public interest, for instance concerning a product or service which fails to comply with environmental or safety standards, labour rights, consumer rights or human rights, including the principle of non-discrimination. |
Or. en
Amendment 18
Proposal for a directive
Recital 20
| Text proposed by the Commission | Amendment |
| (20) Abusive court proceedings typically involve litigation tactics used in bad faith such as delaying proceedings, causing disproportionate costs to the defendant in the proceedings or forum shopping. These tactics are used by the claimant for other purposes than gaining access to justice. Such tactics are often, although not always, combined with various forms of intimidation, harassment or threats. | (20) Abusive lawsuits against public participation typically involve litigation tactics used in bad faith such as exaggerated or excessive damage claims, requesting disproportionate prior restraint measures, delaying proceedings, causing disproportionate costs to the defendant in the proceedings or forum shopping. These tactics are used by the claimant for other purposes than gaining access to justice. Such tactics are often, although not always, combined with various forms of intimidation, harassment or threats. |
Or. en
Amendment 19
Proposal for a directive
Recital 22
| Text proposed by the Commission | Amendment |
| (22) A matter should be considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised. Even where both parties are domiciled in the same Member State as the court seised, a matter should be considered to have cross-border implications in two other types of situations. The first situation is where the specific act of public participation concerning a matter of public interest at stake is relevant to more than one Member State. That includes for instance public participation in events organised by Union institutions, such as appearances in public hearings, or statements or activities on matters that are of specific relevance to more than one Member State, such as cross-border pollution or allegations of money laundering with potential cross-border involvement. The second situation where a matter should be considered to have cross-border implications is when the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State. These two types of situations take into consideration the specific context of SLAPPs. | (22) A matter should be considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised. Even where both parties are domiciled in the same Member State as the court seised, a matter should be considered to have cross-border implications in two other types of situations. The first situation is where the specific act of public participation concerning a matter of public interest at stake is relevant to more than one Member State. That includes for instance public participation acts which have a cross-border nature or dimension, such as events organised by Union institutions, appearances in public hearings, or widely disseminated publications, included in the digital environment. It shall also include statements or activities on matters which the public of more than one Member State may legitimately take an interest on, and therefore are or may become of relevance to more than one Member State, such as economic or political activity of cross-border relevance, cross-border pollution, cross-border enjoyment or abuse of fundamental rights or freedoms under EU law, allegations of money laundering with potential cross-border involvement. The second situation where a matter should be considered to have cross-border implications is when the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State. These two types of situations take into consideration the specific context of abusive lawsuits against public participation. |
Or. en
Amendment 20
Proposal for a directive
Recital 24 a (new)
| Text proposed by the Commission | Amendment |
| (24 a) Any entity safeguarding or promoting the rights of persons engaging in public participation or otherwise bearing an interest in the defence of the public participation activity targeted by a SLAPP shall have the opportunity to take part in those proceedings, either in support of the defendant or to provide information. Such possibility of legal representation should be without prejudice to the right and competences of trade unions and workers’ representatives to engage on behalf of or in support of workers in judicial proceedings, in accordance with other Union and national rules. |
Or. en
Amendment 21
Proposal for a directive
Recital 26
| Text proposed by the Commission | Amendment |
| (26) To provide the defendant with an additional safeguard, there should be a possibility to grant him or her a security to cover procedural costs and/or damages, when the court considers that even if the claim is not manifestly unfounded, there are elements indicating an abuse of procedure and the prospects for success in the main proceedings are low. A security does not entail a judgement on the merits but serves as a precautionary measure ensuring the effects of a final decision finding an abuse of procedure. It should be for Member States to decide whether a security should be ordered by the court on its own motion or upon request by the defendant. | (26) To provide the defendant with an additional safeguard, there should be a possibility to grant him or her a security to cover costs, including procedural costs, legal representation costs and/or damages, when the court considers that even if the claim is not manifestly unfounded, there are elements indicating an abuse of procedure and the prospects for success in the main proceedings are low. A security does not entail a judgement on the merits but serves as a precautionary measure ensuring the effects of a final decision finding an abuse of procedure. It should be for Member States to decide whether a security should be ordered by the court on its own motion or upon request by the defendant. |
Or. en
Amendment 22
Proposal for a directive
Recital 30
| Text proposed by the Commission | Amendment |
| (30) If a defendant has applied for early dismissal, it should be for the claimant in the main proceedings to prove in the accelerated procedure that the claim is not manifestly unfounded. This does not represent a limitation of access to justice, taking into account that the claimant carries the burden of proof in relation to that claim in the main proceedings and only needs to meet the much lower threshold of showing that the claim is not manifestly unfounded in order to avoid an early dismissal. | (30) If a defendant has applied for early dismissal, it should be for the claimant in the main proceedings to prove in the accelerated procedure that the claim is not an abusive lawsuit against public participation. This does not represent a limitation of access to justice, taking into account that the claimant carries the burden of proof in relation to that claim in the main proceedings and only needs to meet the much lower threshold of showing that the claim is not manifestly unfounded and is not abusive in order to avoid an early dismissal. |
Or. en
Amendment 23
Proposal for a directive
Recital 31
| Text proposed by the Commission | Amendment |
| (31) Costs should include all costs of the proceedings, including the full costs of legal representation incurred by the defendant unless such costs are excessive. Costs of legal representation exceeding amounts laid down in statutory fee tables should not be considered as excessive per se. Full compensation of damages should include both material and immaterial damages, such as physical and psychological harm. | (31) Costs should include all costs of the proceedings, including the full costs of legal representation incurred by the defendant unless such costs are excessive. Costs of legal representation exceeding amounts laid down in statutory fee tables should not be considered as excessive per se. Where the domestic law does not guarantee the compensation of costs for legal representation beyond statutory fee tables, the court should be enabled to indemnify costs not encompassed in statutory fee tables through the award of damages. Full compensation of damages should include both material and immaterial damages, such as physical and psychological harm. |
Or. en
Amendment 24
Proposal for a directive
Recital 32
| Text proposed by the Commission | Amendment |
| (32) The main objective of giving courts or tribunals the possibility to impose penalties is to deter potential claimants from initiating abusive court proceedings against public participation. Such penalties should be proportionate to the elements of abuse identified. When establishing amounts for penalties, courts should take into account the potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant. | (32) The main objective of giving courts or tribunals the possibility to impose penalties is to deter potential claimants from initiating abusive court proceedings against public participation. Such penalties should be determined on a case by case basis and be proportionate to the elements of abuse identified. When establishing amounts for penalties, courts should take into account the potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant. |
Or. en
Amendment 25
Proposal for a directive
Recital 33
| Text proposed by the Commission | Amendment |
| (33) In the cross-border context, it is also important to recognize the threat of SLAPPs from third countries targeting journalists, human rights defenders and other persons engaged in public participation who are domiciled in the European Union. They may involve excessive damages awarded against EU journalists, human rights defenders and others. Court proceedings in third-countries are more complex and costly for the targets. To protect democracy and freedom of expression and information in the European Union and to avoid that the safeguards provided by this Directive are undermined by recourse to court proceedings in other jurisdictions, it is important to provide protection also against manifestly unfounded and abusive court proceedings in third countries. | (33) In the cross-border context, it is also important to recognize the threat of SLAPPs from third countries targeting journalists, human rights defenders and other persons engaged in public participation who are domiciled in the European Union. They may involve excessive damages awarded against persons engaging in public participation. Court proceedings in third-countries are more complex and costly for the targets. To protect democracy and freedom of expression and information in the European Union and to avoid that the safeguards provided by this Directive are undermined by recourse to court proceedings in other jurisdictions, it is important to provide protection also against abusive lawsuits against public participation in third countries. |
Or. en
Amendment 26
Proposal for a directive
Recital 34
| Text proposed by the Commission | Amendment |
| (34) This Directive creates a new special ground of jurisdiction in order to ensure that targets of SLAPPs domiciled in the European Union have an efficient remedy available in the Union against abusive court proceedings brought in a court or tribunal of a third country. This special ground of jurisdiction allows the targets domiciled in the European Union to seek, in the courts or tribunals of their domicile, for compensation of damages and costs incurred in connection with the proceedings before the court or tribunal of the third country. This right applies irrespective of the domicile of the claimant in the proceedings in the third country. | (34) This Directive creates a new special ground of jurisdiction in order to ensure that targets of SLAPPs domiciled in the European Union have an efficient remedy available in the Union against abusive court proceedings brought in a court or tribunal of a third country. This special ground of jurisdiction allows the targets domiciled in the European Union to seek, in the courts or tribunals of their domicile, for compensation of damages and costs incurred or reasonably expected to be incurred in connection with the proceedings before the court or tribunal of the third country. This right applies irrespective of the domicile of the claimant in the proceedings in the third country. |
Or. en
Amendment 27
Proposal for a directive
Recital 34 a (new)
| Text proposed by the Commission | Amendment |
| (34 a) This Directive is linked to relevant EU policy including but not limited to the European Democracy Action Plan, the Commission's Recommendation to Member States on the safety of journalists, European Democracy Action Plan Media Freedom Act, the EU guidelines on Freedom of Expression Online and Offline, the Parliament's Resolution on Strengthening democracy, media freedom and pluralism in the EU, the Recommendations on the protection of journalism and safety of journalists and other media actors from the Council of Europe. |
Or. en
Amendment 28
Proposal for a directive
Recital 34 b (new)
| Text proposed by the Commission | Amendment |
| (34 b) This Directive shall keep monitoring on the status of media freedom, pluralism and SLAPPs, including through the Media Freedom Rapid Response, which is crucial to provide updated data and alarms highlighting cases of possible forum shopping between member states, based on data which member states have to regularly provide and collaborate. |
Or. en
Amendment 29
Proposal for a directive
Recital 35 a (new)
| Text proposed by the Commission | Amendment |
| (35 a) Member States, in close cooperation with relevant stakeholders including professional associations, other social partners and civil society organisations, should take appropriate measures to ensure that the deontological rules that govern the conduct of legal professionals and the disciplinary sanctions for violation of those rules consider and include appropriate measures to discourage abusive lawsuits against public participation. This may include encouraging self-regulation by associations of legal professionals and/or, when this is consistent with national law and in the full respect of the independence of the profession, take initiatives for legislation or co-regulation. |
Or. en
Amendment 30
Proposal for a directive
Recital 36
| Text proposed by the Commission | Amendment |
| (36) This Directive is complementary to the Commission recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”). This recommendation is addressed to Member States and it provides a comprehensive toolbox of measures including training, awareness-raising, support to targets of abusive court proceedings and data collection, reporting and monitoring of court proceedings against public participation. | (36) This Directive is complementary to the Commission recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”). This recommendation is addressed to Member States and it provides a comprehensive toolbox of measures including training, awareness-raising, support to targets of abusive court proceedings and data collection, reporting and monitoring of court proceedings against public participation. When transposing this Directive, Member States should pay particular attention to the implementation of the Commission’s recommendations as regards, in particular, the inclusion of safeguards similar to those provided for by the Directive for domestic cases not covered by the Directive’s scope, and the provision of legal assistance to defendants in an affordable and easily accessible manner, and consider the inclusion in their national transposition laws of targeted provisions to that effect. |
Or. en
Amendment 31
Proposal for a directive
Article 1 – paragraph 1
| Text proposed by the Commission | Amendment |
| This Directive provides safeguards against manifestly unfounded or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons, in particular journalists and human rights defenders, on account of their engagement in public participation. | This Directive provides safeguards against abusive lawsuits against public participation court proceedings in civil matters with cross-border implications brought against natural and legal persons on account of their engagement in public participation. |
Or. en
Amendment 32
Proposal for a directive
Article 2 – paragraph 1
| Text proposed by the Commission | Amendment |
| This Directive shall apply to matters of a civil or commercial nature with cross-border implications, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). | This Directive shall apply to legal claims or actions of a civil or commercial nature with cross-border implications commenced or continued before a national court at the time of its entry into force. This Directive shall extend to any type of claim, including interim and precautionary measures, counteractions or other particular type of remedies, and irrespective of the nature of the court or tribunal. It shall include civil claims brought in criminal proceedings. It shall not extend to claims invoking the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). |
Or. en
Amendment 33
Proposal for a directive
Article 3 – paragraph 1 – point 1
| Text proposed by the Commission | Amendment |
| 1. ‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings; | 1. ‘public participation’ means any statement or activity, including in the digital environment, by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and connected, preparatory, supporting or assisting action directly linked thereto, which may result from the exercise of other rights and freedoms including the right to freedom of association and of assembly, academic freedom, freedom of science, artistic freedom, freedom of culture, and the right of collective bargaining and action, the right to good administration and the right to an effective remedy. This includes, besides the creation, exhibition, advertising or other promotion of journalistic, documentary, political, news and current affairs, scientific, academic, artistic, commentary or satirical communications, publications or works regardless of the medium or format, any other activity which serves the disclosure, dissemination or promotion to the public in any form of information, findings, ideas, opinions or testimonies, such as demonstrations, protests, assemblies, performances, complaints, petitions, administrative or judicial claims and participation in public hearings. It shall also include any supporting, preparatory and follow-up activities thereof, such as the provision by natural or legal persons, either on a professional or on a personal basis, of support, assistance and of goods and services for purposes directly linked to the act of public participation; |
Or. en
Amendment 34
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point a
| Text proposed by the Commission | Amendment |
| (a) public health, safety, the environment, climate or enjoyment of fundamental rights; | (a) public health, safety, the environment, climate, education, culture or enjoyment of fundamental rights such as freedom of expression and information, artistic freedom, cultural and societal diversity, media freedom and pluralism; |
Or. en
Amendment 35
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point e a (new)
| Text proposed by the Commission | Amendment |
| (e a) artistic and cultural activities |
Or. en
Amendment 36
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point e b (new)
| Text proposed by the Commission | Amendment |
| (e b) scientific and research activities |
Or. en
Amendment 37
Proposal for a directive
Article 3 – paragraph 1 – point 3 – introductory part
| Text proposed by the Commission | Amendment |
| 3. ‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be: | 3. ‘Abusive lawsuits against public participation’ mean court proceedings brought in relation to public participation that are characterised by elements indicative of an abusive use of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to prevent, restrict or penalize public participation. This includes claims which are manifestly unfounded and claims which, although bearing some legal merits, are of abusive nature. Indications of such a nature can be: |
Or. en
Amendment 38
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point -a (new)
| Text proposed by the Commission | Amendment |
| (-a) parties’ imbalances in bargaining powers in terms of financial and legal resources; |
Or. en
Amendment 39
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point a a (new)
| Text proposed by the Commission | Amendment |
| (a a) the litigation tactics deployed by the claimant, including as regards the choice of jurisdiction and the use of dilatory tactics; |
Or. en
Amendment 40
Proposal for a directive
Article 4 – paragraph 2 – point a
| Text proposed by the Commission | Amendment |
| (a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or | (a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is or may be relevant to the general public or its part in more than one Member State, either due to the cross-border nature or dimension of the act itself, or due to the legitimate interest which the public in different Member States may take in the matter of public interest concerned by the act, or |
Or. en
Amendment 41
Proposal for a directive
Chapter II – title
| Text proposed by the Commission | Amendment |
| Common rules on procedural safeguards | General rules on procedural safeguards |
Or. en
Amendment 42
Proposal for a directive
Article 5 – paragraph 1 – point b
| Text proposed by the Commission | Amendment |
| (b) early dismissal of manifestly unfounded court proceedings in accordance with Chapter III; | (b) early dismissal in accordance with Chapter III; |
Or. en
Amendment 43
Proposal for a directive
Article 5 – paragraph 1 – point c
| Text proposed by the Commission | Amendment |
| (c) remedies against abusive court proceedings in accordance with Chapter IV. | (c) remedies in accordance with Chapter IV. |
Or. en
Amendment 44
Proposal for a directive
Article 5 – paragraph 3
| Text proposed by the Commission | Amendment |
| 3. Member States may provide that measures on procedural safeguards in accordance with Chapters III and IV can be taken by the court or tribunal seised of the matter ex officio. | 3. Member States shall provide that measures on procedural safeguards in accordance with Chapters III and IV can be taken by the court or tribunal seised of the matter ex officio. |
Or. en
Amendment 45
Proposal for a directive
Article 7 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that non-governmental organisations safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either in support of the defendant or to provide information. | Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that entities safeguarding or promoting the rights of persons engaging in public participation, such as non-governmental organisations, professional and representative associations, trade unions and other collective bodies acting in the interest of the defendant, may take part in those proceedings, either in support of the defendant or to provide information or opinion. This provision is without prejudice to existing rights of representation and intervention as guaranteed by other Union or national rules. |
Or. en
Amendment 46
Proposal for a directive
Article 8 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member states shall ensure that in court proceedings against public participation, the court or tribunal seised has the power to require the claimant to provide security for procedural costs, or for procedural costs and damages, if it considers such security appropriate in view of presence of elements indicating abusive court proceedings. | Member states shall ensure that in court proceedings against public participation, the court or tribunal seised has the power to require the claimant to provide security for costs, including procedural costs, legal representation, and associated costs and damages, if it considers such security appropriate in view of presence of elements indicating an abusive lawsuit against public participation as defined in Article 3(3) of this Directive. |
Or. en
Amendment 47
Proposal for a directive
Article 8 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
| If security for costs is requested by the defendant, the court shall refuse to grant it only where the claimant has established a prima facie case as to each essential element of the cause of action and where it is satisfied that the claim is not characterised by elements of abuse. |
Or. en
Amendment 48
Proposal for a directive
Chapter III – title
| Text proposed by the Commission | Amendment |
| Early dismissal of manifestly unfounded court proceedings | Early dismissal |
Or. en
Amendment 49
Proposal for a directive
Article 9 – paragraph 1
| Text proposed by the Commission | Amendment |
| 1. Member States shall empower courts and tribunals to adopt an early decision to dismiss, in full or in part, court proceedings against public participation as manifestly unfounded. | 1. Member States shall empower courts and tribunals to adopt an early decision to dismiss, in full or in part, court proceedings which can be qualified as abusive lawsuits against public participation as defined in Article 3(3) of this Directive. |
Or. en
Amendment 50
Proposal for a directive
Article 12 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to prove that the claim is not manifestly unfounded. | Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to prove that the claim is not an abusive lawsuit against public participation as defined in Article 3(3) of this Directive. |
Or. en
Amendment 51
Proposal for a directive
Article 12 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
| Pursuant to paragraph 1, the court shall refuse to grant early dismissal only where the claimant has established a prima facie case as to each essential element of the cause of action and where it is satisfied that the claim is not characterised by elements of abuse. |
Or. en
Amendment 52
Proposal for a directive
Article 13 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall ensure that a decision refusing or granting early dismissal pursuant to Article 9 is subject to an appeal. | Member States shall ensure that a decision refusing or granting early dismissal pursuant to Article 9 is subject to an appeal to a higher instance court. |
Or. en
Amendment 53
Proposal for a directive
Chapter IV – title
| Text proposed by the Commission | Amendment |
| Remedies against abusive court proceedings | Remedies |
Or. en
Amendment 54
Proposal for a directive
Article 14 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall take the necessary measures to ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive. | Member States shall take the necessary measures to ensure that a claimant who has brought an abusive lawsuit against public participation is ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive. |
Or. en
Amendment 55
Proposal for a directive
Article 14 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
| Where the domestic law does not guarantee the compensation of costs for legal representation beyond statutory fee tables, the court should be enabled to indemnify costs not encompassed in statutory fee tables through compensation of damages pursuant to Article 15. |
Or. en
Amendment 56
Proposal for a directive
Article 15 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall take the necessary measures to ensure that a natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm. | Member States shall take the necessary measures to ensure that a natural or legal person who has suffered harm as a result of an abusive lawsuit against public participation is able to claim and to obtain full compensation for that harm. |
Or. en
Amendment 57
Proposal for a directive
Article 15 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
| Member States shall take the necessary measures to ensure that compensation in accordance with paragraph 1 can be the object of an incidental claim for damages filed within the court proceedings relating to the abusive lawsuit against public participation giving rise to such claim. |
Or. en
Amendment 58
Proposal for a directive
Article 16 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall provide that courts or tribunals seised of abusive court proceedings against public participation have the possibility to impose effective, proportionate and dissuasive penalties on the party who brought those proceedings. | Member States shall provide that courts or tribunals seised of an abusive lawsuit against public participation have the possibility to impose effective, proportionate and dissuasive penalties on the party who brought those proceedings, to be quantified with due regard to the amount of the claim and the financial situation of the claimant. |
Or. en
Amendment 59
Proposal for a directive
Article 16 a (new)
| Text proposed by the Commission | Amendment |
| Article 16 a | |
| Deontological rules for legal professionals | |
| Member States should, in close cooperation with relevant stakeholders including professional associations and other social partners, take appropriate measures to ensure that the deontological rules that govern the conduct of legal professionals and the disciplinary sanctions for violation of those rules consider and include appropriate measures to discourage abusive lawsuits against public participation. This may include encouraging self-regulation by associations of legal professionals and/or, when this is consistent with national law and in full respect of the independence of the legal profession, take initiatives for legislation or co-regulation. |
Or. en
Amendment 60
Proposal for a directive
Article 17 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
| Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been regarded as an abusive lawsuit against public participation as defined in Article 3(3) if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law. |
Or. en
Amendment 61
Proposal for a directive
Article 18 – paragraph 1
| Text proposed by the Commission | Amendment |
| Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country. | Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred or reasonably expected to be incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country. |
Or. en