Ana Carcau (grasp’s scholar in European Union Legislation on the College of Legislation of College of Minho)
In early 2025, Greenpeace Worldwide initiated authorized proceedings earlier than Dutch courts searching for compensation for all of the damages and prices suffered from a collection of abusive lawsuits filed in opposition to it by the US-based fossil gas pipeline firm, Power Switch.[1] These lawsuits, strategically designed to intimidate and silence public participation, are what we now broadly check with as Strategic Lawsuits Towards Public Participation (SLAPPs). They exemplify what has been described as “punishment by course of”: a means of weaponizing authorized methods to suppress dissent quite than to hunt justice.[2]
The authorized battle between Greenpeace and Power Switch is much from latest. All of it dates again to 2017, when Power Switch started concentrating on Greenpeace entities in america, in addition to Greenpeace Worldwide, within the aftermath of the 2016 Indigenous-led protests in opposition to Dakota Entry Pipeline (DAPL). On the time, Power Switch alleged that Greenpeace had orchestrated the protests and sought to carry the organisation responsible for damages.[3]
The primary try took the type of a federal lawsuit underneath the Racketeer Influenced and Corrupt Organizations (RICO) Act, a statute historically used to prosecute organised crime. The court docket, nonetheless, was not satisfied for the reason that decide concluded that the proof fell wanting what was wanted to ascertain a RICO enterprise, and the case was dismissed.[4] Not deterred, Power Switch filed a brand new case in North Dakota state court docket, now framed as a mixture of defamation, conspiracy, and different torts. This time the case progressed, regardless of critical considerations over its advantage.
This case takes an much more related dimension from a European authorized perspective since North Dakota doesn’t have Anti-SLAPP laws, that means Greenpeace couldn’t profit from procedural safeguards that may in any other case have enabled the swift dismissal of the case or full restoration of authorized prices. Including to the severity of the scenario, the decision delivered by the jury in February 2025 discovered the Greenpeace entities responsible for greater than 660 million USD. For Greenpeace, this ruling represents a catastrophic consequence – one which dangers reinforcing a harmful precedent: that organisations partaking in public protest could be crushed underneath the burden of disproportionate litigation.[5]
What makes the lawsuit within the Netherlands notably important is that it might grow to be the primary actual check of the effectiveness of the just lately adopted Directive (EU) 2024/1069,[6] generally known as the Anti-SLAPP Directive. Though the Directive continues to be within the strategy of being transposed by Member States (transposition restrict date is Could 7, 2026),[7] its provisions might have already got a strong influence on how European courts reply to transnational makes an attempt at silencing journalists, activists and civil society organizations.
SLAPPs aren’t simply authorized actions, they’re instruments of suppression, i.e. lawsuits initiated not essentially to win, however to exhaust. These circumstances create what authorized students have dubbed a “chilling impact”, which implies that there’s a common aim of deterring not simply the goal of the SLAPP, but in addition others from taking part in public debate for concern of retaliation.[8] This aim can present itself in lots of kinds: from a strategic selection of jurisdiction, to counting on a number of absolutely or partially unfounded claims, or initiating a number of proceedings on comparable issues, amongst many others.[9]
Taking this under consideration the Anti-SLAPP Directive was adopted in April 2024 as a response to the rising concern that abusive litigation was getting used throughout the EU to discourage public scrutiny and democratic debate.[10] Its main aim is to defend journalists, human proper defenders, teachers and civil society organizations from meritless lawsuits which might be filed with the intention of silencing or punishing participation in issues of public curiosity.[11] Sometimes introduced by highly effective people or companies, their purpose is to empty the sources and morale of those that converse out on problems with public curiosity.[12] This aim is explicitly recognised in Article 4(3) of the Directive, which highlights that SLAPPs are supposed to not defend reputable rights however to limit, penalise or in any other case burden public participation.
The Directive applies solely to civil and business issues with cross-border implications, and it introduces a set of procedural safeguards designed to discourage and deter SLAPPs. It additionally covers interim and precautionary measures, in addition to counteractions, guaranteeing that procedural abuse is addressed in any respect levels of litigation.[13] Amongst its key improvements are the supply of safety, the chance for courts to dismiss manifestly unfounded claims at an early stage, and the imposition of treatments in opposition to abusive court docket proceedings in opposition to public participation – together with the awarding of prices, penalties, or different equally efficient applicable measures – in opposition to those that interact in abusive litigation.[14]
To start with, there may be the chance for courts to require the claimant to offer a safety protecting estimated authorized prices. This may occasionally embrace the defendant’s authorized illustration bills and potential compensation for damages.[15] Whereas functioning as a precautionary measure, the imposition of safety have to be balanced in opposition to the claimant’s proper of entry to justice. It ought to solely be utilized the place there are adequate indications that the proceedings are prone to be abusive, with out prejudging the result on the deserves.[16]
The early dismissal of manifestly unfounded claims permits courts to reject abusive proceedings on the earliest attainable stage, sparing the defendant from pointless authorized burdens and procedural delays.[17] Though taken early within the course of, this determination have to be correctly reasoned and is topic to attraction, as is the refusal to grant dismissal.[18] The aim is to make sure that clearly abusive lawsuits don’t advance, thereby reinforcing procedural effectivity and entry to justice.
Lastly, the Directive supplies for the imposition of treatments in opposition to abusive court docket proceedings. These might take the type of price orders, requiring the claimant to bear all procedural bills, together with the defendant’s authorized charges, except deemed extreme.[19] Different efficient sanctions might embrace the cost of compensation for damages or the publication of the court docket’s determination.[20] These treatments have to be proportionate and dissuasive, with the purpose of discouraging abusive litigation practices that threaten public participation.[21]
Importantly, the Directive additionally upholds the precept of efficient judicial safety, guaranteeing that procedural instruments don’t infringe the proper of entry to justice.[22] It attracts straight from Article 47 of the Constitution of Elementary Rights of the European Union and emphasises that the implementation of such instruments depends not solely on laws, but in addition on the lively function of nationwide courts as “functionally European” courts.[23] They’re the primary line of defence in opposition to SLAPPs, and their skill to interpret and apply EU regulation is significant for guaranteeing that these safeguards are extra than simply phrases on paper.
Now, whereas a lot consideration has been paid to those inside procedural safeguards, the Directive additionally addresses a much less seen however equally urgent menace: abusive selections originating from exterior the EU. That is exactly the place the case introduced in Dutch courts by Greenpeace Worldwide – based mostly within the Netherlands – turns into particularly related. Below Articles 16 and 17 of the Directive, courts in Member States are empowered to refuse recognition or enforcement of third-country judgements when these selections are manifestly unfounded or abusive. In different phrases, if a international judgement outcomes from a SLAPP, EU courts can decline to offer it impact inside their jurisdiction. This provision is essential in an more and more globalised authorized panorama, the place transnational litigation can simply be weaponised to silence actors protected underneath EU regulation.[24]
The Greenpeace lawsuit affords a novel alternative to see how these mechanisms would possibly play out in follow. The Dutch courts, by assessing the legitimacy of the SLAPPs introduced by a non-EU actor, will primarily be pioneering a type of judicial resistance in opposition to abusive litigation ways imported from overseas. Past its authorized complexity, this case is symbolic because it alerts that civil society is now not prepared to play defence and places European courts and establishments to the check: will they stay as much as the ambitions of the Anti-SLAPP Directive? Solely time will inform, however one factor is definite: the result of this case will echo far past the courtroom, it might form how Europe protects those that dare to talk up.
[1] Greenpeace, “Greenpeace Worldwide recordsdata lawsuit in opposition to Power Switch within the first use of the EU anti-SLAPP Directive”, accessed April 13, 2025, https://www.greenpeace.org/worldwide/press-release/72706/greenpeace-international-files-lawsuit-against-energy-transfer-in-first-use-of-eu-anti-slapp-directive/
[2] Francesca Farrington and Magdalena Zabrocka, “Punishment by course of: the event of Anti-SLAPP laws within the European Union”, ERA FORUM (2023): 521-522. https://doi.org/10.1007/s12027-023-00774-5.
[3] Greenpeace, “Greenpeace v. Power Switch Companions: The Information”, accessed April 13, 2025, https://www.greenpeace.org/usa/local weather/greenpeace-v-energy-transfer-partners-facts/.
[4] Greenpeace, “US Federal Courtroom dismisses $900 million pipeline firm lawsuit in opposition to Greenpeace”, accessed April 14, 2025, https://www.greenpeace.org/worldwide/press-release/20993/us-federal-court-dismisses-900-million-pipeline-company-lawsuit-against-greenpeace/.
[5] The Guardian, “Greenpeace should pay not less than $660m over Dakota pipeline protests, jury says”, accessed April 14, 2025, https://www.theguardian.com/us-news/2025/mar/19/greenpeace-lawsuit-energy-transfer-dakota-pipeline.
[6] Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on defending individuals who interact in public participation from manifestly unfounded claims or abusive court docket proceedings (“Strategic lawsuits in opposition to public participation”). OJ L, 2024/1069, 16.4.2024, ELI: http://knowledge.europa.eu/eli/dir/2024/1069/oj.
[7] Article 22(1) of Directive (EU) 2024/1069.
[8] Basis for Particular person Rights and Expression, “Chilling Impact Overview”, accessed April 14, 2025, https://www.thefire.org/research-learn/chilling-effect-overview
[9] Recital 28 of Directive (EU) 2024/1069.
[10] Recital 8 of Directive (EU) 2024/1069.
[11] Recital 6 and 10-12 of Directive (EU) 2024/1069.
[12] Recital 15 and 16 of Directive (EU) 2024/1069.
[13] Article 2 of Directive (EU) 2024/1069.
[14] Article 6 of Directive (EU) 2024/1069.
[15] Article 10 of Directive (EU) 2024/1069.
[16] Recital 36 of Directive (EU) 2024/1069.
[17] Article 11 of Directive (EU) 2024/1069.
[18] Article 13 and Recital 37 and 40 of Directive (EU) 2024/1069.
[19] Article 14 of Directive (EU) 2024/1069.
[20] Article 15 of Directive (EU) 2024/1069.
[21] Recital 42 of Directive (EU) 2024/1069.
[22] Recital 52 of Directive (EU) 2024/1069.
[23] Alessandra Silveira, “Tribunais nacionais”, in Enciclopédia da União Europeia, ed. Ana Paula Brandão, Francisco Pereira Coutinho, Isabel Camisão and Joana Covelo de Abreu (Petrony, 2017), 455-458.
[24] See additionally Recital 43 and 44 of Directive (EU) 2024/1069.
Image credit: by Lara Jameson on pexels.com.
