Strategic lawsuits against public participation: consultation

Appendix A

EU Directive

Chapter I General provisions

Article 1 Subject matter

This Directive provides safeguards against manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons on account of their engagement in public participation.

Article 2 Scope

This Directive shall apply to matters of a civil or commercial nature with cross-border implications brought in civil proceedings, including procedures for interim and precautionary measures and counteractions, 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 not apply to criminal matters or arbitration and shall be without prejudice to criminal procedural law.

Article 3 Minimum requirements

1. Member States may introduce or maintain provisions that are more favourable to protect persons engaged in public participation against manifestly unfounded claims or abusive court proceedings against public participation in civil matters, including national provisions that establish more effective procedural safeguards relating to the right to freedom of expression and information.

2. The implementation of this Directive shall in no circumstances constitute grounds for a reduction in the level of safeguards already afforded by Member States in the matters covered by this Directive.

Article 4 Definitions

For the purposes of this Directive, the following definitions apply:

(1) ‘public participation’ means the making of any statement or the carrying out of any activity by a natural or legal person in the exercise of the right to freedom of expression and information, freedom of the arts and sciences, or freedom of assembly and association, and any preparatory, supporting or assisting action directly linked thereto, and which concerns a matter of public interest;

(2) ‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

(a) fundamental rights, public health, safety, the environment or the climate;

(b) activities of a natural or legal person that is a public figure in the public or private sector;

(c) matters under consideration by a legislative, executive, or judicial body, or any other official proceedings;

(d) allegations of corruption, fraud, or of any other criminal offence, or of administrative offences in relation to such matters;

(e) activities aimed at protecting the values enshrined in Article 2 of the Treaty on European Union, including the protection of democratic processes against undue interference, in particular by fighting disinformation;

(3) ‘abusive court proceedings against public participation’ mean court proceedings which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties, and which pursue unfounded claims. Indications of such a purpose include for example:

(a) the disproportionate, excessive or unreasonable nature of the claim or part thereof, including the excessive dispute value;

(b) the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

(c) intimidation, harassment or threats on the part of the claimant or the claimant’s representatives, before or during the proceedings, as well as similar conduct by the claimant in similar or concurrent cases;

(d) the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith.

Article 5 Matters with cross-border implications

1. For the purposes of this Directive, a matter is considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised and all other elements relevant to the situation concerned are located only in that Member State.

2. Domicile shall be determined in accordance with Regulation (EU) No 1215/2012.

Chapter II Common rules on procedural safeguards

Article 6 Applications for procedural safeguards

1. Member States shall ensure that where court proceedings are brought against natural or legal persons on account of their engagement in public participation, those persons can apply, in accordance with national law, for:

(a) security as provided for in Article 10;

(b) early dismissal of manifestly unfounded claims as provided for in Chapter III;

(c) remedies against abusive court proceedings against public participation as provided for in Chapter IV.

2. Member States may provide that measures on procedural safeguards as provided for in Chapters III and IV can be taken ex officio by the court or tribunal seised of the matter.

Article 7 Accelerated treatment of applications for procedural safeguards

1. Member States shall ensure that applications in accordance with Article 6(1) points (a) and (b) are treated in an accelerated manner in accordance with national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

2. Member States shall ensure that applications in accordance with Article 6(1) point (c) may also be treated in an accelerated manner, where possible, in accordance with national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

Article 8 Subsequent amendment to claim or pleadings Member States shall ensure that in court proceedings brought against natural or legal persons on account of their engagement in public participation any subsequent amendments to the claims or the pleadings made by the claimant, including the withdrawal of claims, do not affect the possibility for the defendant to apply for remedies as provided for in Chapter IV, in accordance with national law. The first paragraph is without prejudice to Article 6(2).

Article 9 Support for the defendant in court proceedings

Member States shall ensure that a court or tribunal seised of court proceedings brought against natural or legal persons on account of their engagement in public participation may accept that associations, organisations, trade unions and other entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation, may support the defendant, where the defendant so approves, or provide information in those proceedings in accordance with national law

Article 10 Security

Member States shall ensure that in court proceedings brought against natural or legal persons on account of their engagement in public participation, the court or tribunal seised may require, without prejudice to the right of access to justice, that the claimant provide security for the estimated costs of the proceedings, which may include the costs of legal representation incurred by the defendant, and, if provided for in national law, damages.

Chapter III Early dismissal of manifestly unfounded claims

Article 11 Early dismissal

Member States shall ensure that courts and tribunals may dismiss, after appropriate examination, claims against public participation as manifestly unfounded, at the earliest possible stage in the proceedings, in accordance with national law.

Article 12 Burden of proof and substantiation of claims

1. The burden of proving that the claim is well founded rests on the claimant who brings the action.

2. Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is not manifestly unfounded.

Article 13 Appeal

Member States shall ensure that a decision granting early dismissal pursuant to Article 11 is subject to an appeal.

Chapter IV Remedies against abusive court proceedings against public participation

Article 14 Award of costs

1. Member States shall ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all types of costs of the proceedings that can be awarded under national law, including the full costs of legal representation incurred by the defendant unless such costs are excessive.

2. Where national law does not guarantee the award in full of the costs of legal representation beyond what is set out in statutory fee tables, Member States shall ensure that such costs are fully covered, unless they are excessive, by other means available under national law.

Article 15 Penalties or other equally effective appropriate measures

Member States shall ensure that courts or tribunals seised of abusive court proceedings against public participation may impose effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damage or the publication of the court decision, where provided for in national law, on the party who brought those proceedings.

Chapter V Protection against third-country judgments

Article 16 Grounds for refusal of recognition and enforcement of a third-country judgment

Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings against public participation by a natural or legal person domiciled in a Member State is refused, if those proceedings are considered manifestly unfounded or abusive under the law of the Member State in which such recognition or enforcement is sought.

Article 17 Jurisdiction for actions related to third-country proceedings

1. Member States shall ensure that, where abusive court proceedings against public participation have been brought by a claimant domiciled outside the Union 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 that person is domiciled, compensation for the damage and the costs incurred in connection with the proceedings before the court or tribunal of the third-country.

2. Member States may limit the exercise of jurisdiction under paragraph 1 while proceedings are still pending in the third-country.

Chapter VI Final provisions

Article 18 Relations with bilateral and multilateral conventions and agreements

This Directive shall not affect the application of bilateral and multilateral conventions and agreements between a third State and the Union or a Member State concluded before 6 May 2024.

Article 19 Information and transparency

1. Member States shall ensure that natural or legal persons engaging in public participation referred to in Article 6 have access, as appropriate, to information on available procedural safeguards and remedies and existing support measures such as legal aid and financial and psychological support, where available. The information referred to in the first subparagraph shall include any available information on awareness-raising campaigns, where appropriate in cooperation with relevant civil society organisations and other stakeholders. Such information shall be provided in one single place in an easily accessible format via an appropriate channel, such as an information centre, an existing focal point or an electronic gateway, including the European e-Justice Portal.

2. Member States shall ensure that legal aid in cross-border civil proceedings is provided in accordance with Council Directive 2003/8/EC ( 7 ).

3. Member States shall publish in an easily accessible and electronic format any final judgment delivered by their national courts of appeal or of the highest instance in relation to proceedings falling within the scope of this Directive. That publication shall be carried out in accordance with national law.

Article 20 Data collection

Member States shall, on an annual basis and where available, submit data on the applications and on decisions referred to in Chapters II, III, IV and V to the Commission, preferably in an aggregated form, with regard to:

(a) the number of abusive court proceedings against public participation cases, initiated in the relevant year;

(b) the number of court proceedings, classified by type of defendant and of claimant;

(c) the type of claim submitted on the basis of this Directive.

Article 21 Review

Member States shall, by 7 May 2030, provide the Commission with the available data regarding the application of this Directive, in particular available data showing how those targeted by court proceedings against public participation have used the safeguards provided for in this Directive. On the basis of the information provided, the Commission shall by 7 May 2031 and every five years thereafter at the latest, submit to the European Parliament and to the Council a report on the application of this Directive. That report shall provide an assessment of developments with regard to abusive court proceedings against public participation and the impact of this Directive in the Member States while taking into account the national context in each Member State, including the implementation of Recommendation (EU) 2022/758. If necessary, that report shall be accompanied by proposals to amend this Directive. The Commission report shall be made public.

Article 22 Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 May 2026. They shall immediately inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.