On Friday 9 June, EU Justice Ministers adopted a common position on the ‘anti-SLAPPs’ directive, intended to combat SLAPP procedures (see EUROPE 13187/24, 13185/15). For a majority, the Swedish Presidency’s political agreement (‘general approach’) “strikes the right balance” between protection for victims of SLAPPs and access to justice (see EUROPE 13081/18).
This balance was particularly achieved by delimiting the early rejection of complaints and compensation for victims, as well as through greater flexibility for Member States, emphasised Swedish Justice Minister Gunnar Strömmer.
Anticipated rejection
The text that was adopted specifies that the courts may reject a complaint that is “manifestly unfounded” after “an appropriate examination” of the information pertaining to the case, rather than “at the earliest possible stage”. This is a principle defended by Germany in particular, to avoid “slanted” treatment of cases that are brought before the courts.
Compensations and remedies
The Swedish compromise also limits the scope for victims of SLAPPs with regard to claiming compensation. Similarly, the extent to which the costs of legal proceedings can be reimbursed is subject to national legislation.
However, the Commissioner for Justice, Didier Reynders, regrets these “weakenings”, noting that these are key elements in effectively protecting victims. Malta and Ireland in turn deplored the lack of ambition, while recognising the need to reconcile divergent positions within the EU Council.
Cross-border nature
In addition, the Presidency intends to leave it to the courts to determine whether a case is cross-border or not, by removing this definition from the text (see EUROPE 13135/16). This is a choice which, according to Hungary, but also to Mr Reynders, might nevertheless leave room for legal uncertainty.
Despite some criticism, a majority of ministers supported the political agreement. Several of them, including the Dutch and the Polish, argued that the directive adopted at the end of the negotiations with the European Parliament should remain as faithful as possible to the Swedish version.
The general approach: https://aeur.eu/f/7eo (Original version in French by Hélène Seynaeve)