EU Anti-SLAPP Directive: Public Participants May Claim Compensation for Strategic Litigation Outside EU
In Short
The Directive: The European Union's Directive 2024/1069 (the "Directive") aims to protect individuals and organizations engaged in public participation (such as NGOs, journalists and academics) from strategic lawsuits against public participation ("SLAPPs") through early dismissal mechanisms, cost recovery, and compensation for damages. The Directive permits entities domiciled in the EU to initiate proceedings before European courts to claim damages caused by non-EU entities in SLAPP lawsuits which took place outside the EU.
The Challenge: Non-EU entities may face legal proceedings before European courts in relation to litigation which took place or even still is taking place outside the EU. This introduces new considerations for strategies in cross-border litigation.
Looking Ahead: Non-EU companies will have to factor in the risk of EU anti-SLAPP litigation when considering litigation strategies involving public participants.
EU Directive 2024/1069 aims to prevent meritless SLAPPs by introducing safeguards for defendants such as NGO's, journalists and academics facing such litigation. The Directive establishes mechanisms for early dismissal, cost recovery, and compensation for damages. Notably, the Directive explicitly allows for extraterritorial application and may thus have consequences for non-EU plaintiffs suing EU-domiciled defendants outside the EU. As a result, an understanding of the Directive and its implications is also crucial for non-EU companies dealing with public participants.
A key provision is Article 17(1) of the Directive, which requires EU Member States ("Member States") to ensure that persons domiciled in the EU may seek compensation before their 'home court' in the EU for damages and costs incurred due to abusive litigation outside of the EU. Member States may choose to limit the exercise of this jurisdiction in cases where proceedings are still pending in the relevant third country, but are not required to do so. The Dutch government, for instance, has announced that it will not implement such a limitation, meaning that Dutch courts may hear claims related to alleged SLAPPs, even before the relevant foreign court has ruled on the matter. Additionally, under Article 16 of the Directive, Member States must ensure that their courts refuse to recognize third-country judgments resulting from manifestly unfounded or abusive litigation. Member States must transpose the Directive into national law by May 7, 2026.
The Directive effectively grants EU courts jurisdiction to adjudicate damages claims relating to alleged abusive court proceedings conducted entirely outside of the EU. This raises a substantial risk of irreconcilable judgments, particularly since anti-SLAPP proceedings may be initiated while the disputed litigation abroad is still pending.
The EU's cross-border litigation framework (EU Regulation 1215/2012, the "Brussels 1 bis Regulation") contains a lis pendens mechanism, which is designed to prevent potentially irreconcilable judgments being adjudicated in concurrent proceedings based on the same circumstances. This lis pendens mechanism is however limited to concurrent proceedings in multiple Member States. If one of those proceedings is pending outside of the EU, EU courts have discretion in choosing whether to apply this mechanism to stay or dismiss proceedings initiated in the EU (see Article 33 of the Brussels 1 bis Regulation). As a result, pursuant to the Anti-SLAPP Directive, an EU court could – for instance – issue a cost damages award against a U.S. company in respect of proceedings simultaneously pending before a U.S. court on the basis that such proceedings are abusive, even before the relevant U.S. judge has dealt on the substance of the matter.
At first glance, enforcing an EU court's irreconcilable judgment in the relevant non-EU country will likely prove challenging. Nonetheless, non-EU entities should consider the implications of the Anti-SLAPP Directive when assessing litigation strategies against EU-domiciled public participants.
Anticipating the Directive's implementation into Member States' laws, Greenpeace has initiated proceedings in the Netherlands against various U.S.-based companies in connection with ongoing litigation in the United States. Before the Dutch court, Greenpeace seeks compensation for legal costs incurred in the U.S. proceedings as well as reputational damage. This case highlights that the risks posed by the EU Anti-SLAPP Directive for non-EU entities are not just of theoretical nature and this case will likely serve as an early test of its impact.
Three Key Takeaways
- Expanded Jurisdiction for Anti-SLAPP Claims: The Directive allows EU-domiciled defendants engaged in public participation to seek compensation for damages and costs incurred due to abusive litigation outside the EU, with EU courts potentially adjudicating such claims even while foreign proceedings are still pending.
- Implications for Non-EU Entities: Companies outside the EU engaging in litigation against EU-based public participants must factor in the risk of anti-SLAPP claims.
- Risk of Conflicting Judgments: The Directive increases the likelihood of irreconcilable rulings, as EU courts may grant damages awards against non-EU claimants in connection with court proceedings conducted before third-country courts, before the relevant foreign court has ruled on the substantive matter.
