The Swedish Presidency of the Council of the EU will present a new compromise text on the anti-SLAPP directive to the EU Council Working Party on Civil Law Matters on Tuesday 18 April. This new version is extremely similar to the previous one that we have previously discussed in detail (see EUROPE 13135/16), with a few exceptions.
Anticipated rejection
The Presidency has thus removed the possibility of rejection of manifestly unfounded complaints at later stages of the procedure. Such rejections should therefore take place “at the earliest possible stage”, but after appropriate examination” of the “necessary information in order to substantiate the decision” by the courts.
It should be noted that here, early rejections remain limited to “manifestly unfounded” complaints. On the contrary, the rapporteur for the European Parliament’s Committee on Civil Liberties (LIBE) argues that this provision should be extended to all abusive procedures (see EUROPE 13147/18).
SLAPPs in third countries
In addition, the text provides that victims of SLAPPs in a third country may bring an action before a court in their own country of residence to obtain “compensation for damages and costs incurred”. While the European Commission believes that this can apply regardless of the domicile of the claimant, the text on the table before the EU Council limits it to cases where the initiator of the dispute resides outside the Union.
It adds that this may apply in particular where the claimant “has assets in the European Union”. It also specifies that Member States may limit such requests “while the proceedings are still pending in the third country”.
Differences with the European Parliament
As in its previous version, the Swedish compromise provides for leaving it to the courts to judge the “cross-border” nature of a case, or for a strict application of the Directive to civil proceedings. This would exclude “civil claims brought in criminal proceedings and governed fully or partially by criminal procedural law”.
It also continues to deny victims the possibility to claim compensation, except for abusive procedures that were initiated in third countries.
However, in respect of these points, the EU Council’s position still differs from the European Parliament’s initial suggestions. Indeed, the rapporteur for the Committee on Legal Affairs (JURI) had instead proposed a broadening of the scope and facilities for victims to obtain redress (see EUROPE 13146/22).
According to the programme for its Presidency, Sweden hopes to reach a political agreement (“general approach”) on the text at the June ‘Justice and Home Affairs’ Council (see EUROPE 13092/12).
See the compromise: https://aeur.eu/f/678 (Original version in French by Hélène Seynaeve)