71 Amendments of Diana RIBA I GINER related to 2022/0117(COD)
Amendment 33 #
Proposal for a directive
Title 1
Title 1
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”)
Amendment 34 #
Proposal for a directive
Citation 2 a (new)
Citation 2 a (new)
Having regard to the opinion of the European Economic and Social Committee,
Amendment 37 #
Proposal for a directive
Recital 2
Recital 2
(2) Article 10(3) of the Treaty on European Union states that every Union citizen has the right to participate in the democratic life of the Union. The Charter of Fundamental Rights of the European Union (the ‘Charter’) provides, inter alia, for the rights to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information, which includes respect for the freedom and pluralism of the media (Article 11), freedom of assembly and of association (Article 12) and to an effective remedy and to a fair trial (Article 47).
Amendment 40 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) As recognised by consistent jurisprudence of the ECtHR in relation to the interpretation of relevant provisions of the ECHR, in the light of which the Charter shall be interpreted and applied pursuant to its Article 52(3), the right to freedom of expression and information may also be given expression through the exercise of other rights and freedoms, including the right to freedom of assembly and of association, as set forth in Article 12 of the Charter, and the freedom of the arts and sciences, including academic freedom, as set forth in Article 13 of the Charter. Article 12 of the Charter also explicitly guarantees the right of everyone to form and to join trade unions for the protection of his or her interests, which is further consolidated in Article 28 of the Charter, guaranteeing the right of collective bargaining and action. The ECHR also imposes a positive obligation on contracting states to safeguard the freedom and pluralism of the media and to create a favourable environment for participation in the public debate.
Amendment 48 #
Proposal for a directive
Recital 4
Recital 4
(4) The purpose of this Directive is to provide minimum rules at Union level in order to ensure the protection tof natural and legal persons who engage in public participation on matters of public interest, in particularcluding journalists and human rights defenders, media outlets and rights defenders, in particular, human rights, environmental, women's and LGBTIQ+ rights defenders, as well as civil society organizations, NGOs, activists, trade unions, artists, researchers, academics, bloggers, whistleblowers and political opposition, against court proceedings, which are initiated against them to deter them from public participation (commonly referred to as strategic lawsuits against public participation or ‘SLAPPs’).
Amendment 58 #
Proposal for a directive
Recital 6
Recital 6
(6) Investigative journalists in particular play a key role in combating organised crime, corruption and extremism. Their work carries particularly high risks and they are experiencing a growing number of attacks, threats and harassment. A robust system of safeguards is needed to enable them to fulfil their crucial role as watchdogs on matters of legitimate public interest.
Amendment 63 #
Proposal for a directive
Recital 7
Recital 7
(7) Human rights defenders also play an important role in European democracies, especially in upholding fundamental rights, democratic values, social inclusion, environmental protection, gender equality and the rule of law. They should be able to participate actively in public life, hold power to account, and make their voice heard on policy matters and in decision-making processes without fear of intimidation. Human rights defenders refer to individuals or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ+ rights, the rights of the people with a minority racial or ethnic background, labour rights, including trade union rights, or religious freedoms. Other participants in public debate, such as academics and, researchers, artists, whistleblowers and political opposition also deserve adequate protection.
Amendment 68 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) Environmental defenders also play a key role to protect fundamental rights and to reach the environmental objectives set by the European Union, and shall in no way be persecuted or harassed for their involvement in activities to protect human rights, environmental and climate rights. In recent years, environmental defenders have been subjected to ever-increasing incidences of killings, threats, harassment, intimidation, smear campaigns, criminalisation and judicial harassment.
Amendment 71 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7b) Women's and LGBTIQ+ rights defenders also play an instrumental role in promoting and defending gender equality as well as providing support and protection to victims of gender-based violence. Women’s rights and LGBTIQ+ defenders as well as the organisations defending them are increasingly under attack and face threats and violence that lead to self-censorship. Abusive court proceedings are increasingly being used against them in order to hinder progress in achieving gender equality.
Amendment 75 #
Proposal for a directive
Recital 9
Recital 9
(9) To foster this environment, it is important to protect jonaturnalists and human rights defenderslegal persons who engage in public participation from court proceedings against public participation. Over the years, SLAPPs have increasingly been used to criminalise solidarity, as well as activists defending women’s rights, gender equality and LGBTIQ+ rights, increasingly questioning their role as public watchdogs and contributing to the shrinking space for civil society in the Union. Such court proceedings are not initiated for the purpose of access to justice, but to silence public debate typically using. They often use harassment and intimidation.
Amendment 80 #
Proposal for a directive
Recital 10
Recital 10
(10) SLAPPs are typically initiated by powerful individuals or entities, for example individuals, lobby groups, corporations and state organs. They and authorities, including politicians and judicial authorities in an attempt to silence public debate. They can be sued for expressing critical views on the behaviour or denouncing wrongdoing, and often involve an imbalance of power between the parties, with the claimant having a more powerful financial or political position than the defendant. Although not being an indispensable component of such cases, where present, an imbalance of power significantly increases the harmful effects as well as the chilling effects of court proceedings against public participation.
Amendment 85 #
Proposal for a directive
Recital 11
Recital 11
(11) Court proceedings against public participation may have an adverse impact on the credibility and reputation of journalists and human rights defenderspersons engaging in public participation and exhaust their financial and other resources. Because of such proceedings, the publication of information on a matter of public interest may be delayed or altogether avoided. The length of procedures and the financial pressure may have a chilling effect on journalists and human rights defenders. The existence of such practices may therefore have a deterrent effect on their work by contributing to self-censorship in anticipation of possible future court proceedings, which leads to the impoverishment of public debate to the detriment of society as a whole.
Amendment 86 #
Proposal for a directive
Recital 12
Recital 12
(12) Those targeted by court proceedings against public participation may face multiple cases simultaneously, sometimes initiated in several jurisdictionwhich can be civil, administrative or criminal or a combination of those, sometimes initiated in several jurisdictions. Reportedly, most cases of abusive court proceedings against public participation are criminal and domestic cases. Proceedings initiated in the jurisdiction of one Member State against a person resident in another Member State are usually more complex and costly for the defendant. Claimants in court proceedings against public participation may also use procedural tools to drive up the length and cost of the litigation, and bring cases in a jurisdiction they perceive to be favourable for their case, rather than to the court best placed to hear the claim. The length of procedures, the financial pressure and the threat of sanctions, in particular criminal sanctions, constitute powerful tools to intimidate and silence critical voices. Such practices also place unnecessary and harmful burdens on national court systems.
Amendment 88 #
Proposal for a directive
Recital 13
Recital 13
(13) The safeguards provided in this Directive should apply to any natural or legal person on account of their direct or indirect engagement in public participation. They should also protect natural or legal persons who, either on a professional or on a personal basis, support, assist or provide goods or services to another person for purposes directly linked to public participation on a matter of public interest. This involves for example family members, media outlets, internet providers, publishing houses or print shops, which face or are threatened with court proceedings for providingassisting, providing support or services to the person targeted with court proceedings.
Amendment 93 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should apply to any type of legal claim or action of a civil or commercial nature with cross-border implications, including claims pending before a national court at the time of its entry into force, irrespective of whatever the nature of the court or tribunal. This includes civil claims brought in criminal proceedings. It also includes interim and precautionary measures, counteractions or other particular type of remedies available under other instruments.
Amendment 95 #
Proposal for a directive
Recital 15
Recital 15
(15) The Directive does not apply to claims arising out of liability of the State for actions or omissions in the exercise of State authority (acta iure imperii) and claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders, unless national law provide for it. In line with established case law of the Court of justice of the European Union, court proceedings might still fall in the scope of ‘civil and commercial matters’ as referred to in this Directive where a State or a public body is a party, when the acts or omissions are not made in the exercise of State authority.
Amendment 97 #
Proposal for a directive
Recital 16
Recital 16
(16) Public participation should mean any statement or activity, preparatory, supporting or assisting action directly linked thereto, by a natural or legal person expressed or carried out in the exercise of fundamental rights and freedoms such as the right to freedom of expression and information on a matter of public interest, such as the creation, exhibition, advertisement or other promotion of journalistic content, news or current affairs, political, scientific, academic, artistic, commentary or satirical communications, publications or works, and any preparatory activities directly linked thereto. It can also include activities related to the exercise of academic and artistic freedom, the right to freedom of association and peaceful assembly, such as the organisation of or participation to lobbying activities, demonstrations and protests or activities resulting from the exercise of the right to good administration and the right to an effective remedy, such as the filing of complaints, petitions, administrative and judicial claims and participation in public hearings. Public participation should also include preparatory, supporting or assisting activities that have a direct and inherent link to the statement or activity in question and that are targeted to stifle public participation. In addition, it can cover other activities meant to inform or influence public opinion or to further action by the public, including activities by any private or public entity in relation to an issue of public interest, such as the organisation of or participation to research, surveys, campaigns or any other collective actions.
Amendment 101 #
Proposal for a directive
Recital 17
Recital 17
(17) Public participation should not normally cover commercial advertisement and marketing activity, which are typically not made in the exercise of freedom of expression and information.
Amendment 103 #
Proposal for a directive
Recital 18
Recital 18
(18) The notion of a matter of public interest should include also quality, safety or other relevant aspects of goods, products or services, including the conditions under which these are produced and provided, where such matters are relevant to public health, safety, the environment, climate, rule of law or enjoyment of fundamental rights, including labour rights, media freedom and pluralism, non- discrimination, gender equality and protection from gender-based violence. A purely individual dispute between a consumer and a manufacturer or a service provider concerning a good, product or service should be covered only when the matter contains an element of public interest, for instance concerning a product or service which fails to comply with environmental or safety standards.
Amendment 107 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) Allegations of corruption, fraud, money laundering, extortion, coercion or other forms of intimidation and criminality including environmental crime are also matters of public interest. Activities aimed to protect the rule of law to fight disinformation, as well as scientific and research activities, including in the field of environment and climate also qualify as matters of public interest.
Amendment 109 #
Proposal for a directive
Recital 20
Recital 20
(20) Abusive court proceedings typically involve litigation tactics used in bad faith such as delayingrelying on one or more fully or partially unfounded claim, exploiting an economic advantage or political influence by the claimant against the defendant leading to an imbalance of power between the two parties, as well as requesting exaggerated or excessive damage claims or disproportionate prior restraint measures, which delays proceedings, causing disproportionate costs to the defendant in the proceedings or forum shopping. These tactics are used by the claimant for other purposes than gaining access to justice. Such tactics are often, although not always, combined with various forms of intimidation, harassment or threats.
Amendment 115 #
Proposal for a directive
Recital 22
Recital 22
(22) A matter should be considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised. Even where both parties are domiciled in the same Member State as the court seised, a matter should be considered to have cross-border implications in two other types of situations. The first situation is where the specific act of public participation, including online, concernings a matter of public interest at stake is relevant to more than one Member State either due to the cross-border nature or dimension of the act itself, or due to the legitimate interest which the public in different Member States may take in the matter of public interest concerned by the act. That includes for instance public participation in events organised by Union institutions, such as appearances in public hearings, or statements or activities on matters that are of specific relevance to more than one Member State, such as economic or political activity of cross-border relevance, cross-border pollution or, allegations of money laundering with potential cross- border involvement or cross-border enjoyment or abuse of fundamental rights or freedoms under EU law. The second situation where a matter should be considered to have cross-border implications is when the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State. These two types of situations take into consideration the specific context of SLAPPs.
Amendment 117 #
Proposal for a directive
Recital 23
Recital 23
(23) Defendants should be able to apply for the following procedural safeguards: a request for a security to cover procedural costs, or procedural costs and damages, a request for an early dismissal of manifestfully or partially unfounded court proceedings, a request for remedies against abusive court proceedings (award of costs, compensation of damages and penalties), or all of them at the same time. Court proceedings brought against natural or legal persons on account of their engagement in public participation should be dealt with in a swift and effective manner, taking into account the circumstances of the case, and the right to an effective remedy and the right to a fair trial.
Amendment 119 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) Any entity safeguarding or promoting the rights of persons engaging in public participation or otherwise bearing an interest in the defence of the public participation activity targeted by a SLAPP shall have the opportunity to take part in those proceedings, either in support of the defendant or to provide information. Such possibility of legal representation should be without prejudice to the right and competences of trade unions and workers’ representatives to engage on behalf of or in support of workers in judicial proceedings, in accordance with other Union and national rules.
Amendment 125 #
Proposal for a directive
Recital 26
Recital 26
(26) To provide the defendant with an additional safeguard, there should be a possibility to grant him or her a security to cover procedural costscosts, including procedural costs, legal representation and/or damages, when the court considers that even if the claim is not manifestly unfounded, there are elements indicating an abuse of procedure and the prospects for success in the main proceedings are low. A security does not entail a judgement on the merits but serves as a precautionary measure ensuring the effects of a final decision finding an abuse of procedure. It should be for Member States to decide whether a security should be ordered by the court on its own motion or upon request by the defendant.
Amendment 128 #
Proposal for a directive
Recital 30
Recital 30
(30) If a defendant has applied for early dismissal, it should be for the claimant in the main proceedings to prove in the accelerated procedure that the claim is not manifestpartially or fully unfounded. When seeking to avoid an early dismissal, the claimant shall establish a prima facie case as to each essential element of the cause of action that the claim is not fully or partially unfounded. This does not represent a limitation of access to justice, taking into account that the claimant carries the burden of proof in relation to that claim in the main proceedings and only needs to meet the much lower threshold of showing that the claim is not manifestly unfounded in order to avoid an early dismissal.
Amendment 130 #
Proposal for a directive
Recital 30 a (new)
Recital 30 a (new)
(30a) Early dismissal of fully or partially unfounded claims does not constitute an undue infringement of the right of access to justice. Under this Directive, Member States shall empower their tribunals and courts with the possibility to adopt early decisions to dismiss, but such decisions shall be adopted by the judge on a case- by-case basis, in claims where the aim of the claimant is not to genuinely assert, vindicate or exercise a right. Moreover, claimants shall always be entitled to lodge an appeal against the early decision to dismiss.
Amendment 132 #
Proposal for a directive
Recital 31
Recital 31
(31) Costs should include all costs of the proceedings, including the full costs of legal representation incurred by the defendant unless such costs are excessive. Costs of legal representation exceeding amounts laid down in statutory fee tables should not be considered as excessive per se. Where the domestic law does not guarantee the compensation of costs for legal representation beyond statutory fee tables, the court should be enabled to indemnify costs not encompassed in statutory fee tables through the award of damages. Full compensation of damages should include both material and immaterial damages, such as physical and psychological harm.
Amendment 134 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31a) Any natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation should be able to claim and to obtain full compensation for that harm, without the need to initiate separate court proceedings to that end. Full compensation for harm should cover both material and immaterial damage. Material damage includes notably lawyer fees, when they are not reimbursable as costs, travel expenses and medical costs, in particular psychological assistance. Pre-trial costs should be also considered as material damages, if they are not included in costs according to national laws. Immaterial damage includes in particular different forms of physical and/or psychological harm, pain and suffering or emotional distress related to the court proceedings, impairment of life or of relationship, reputational damage and in general, any types of intangible damage.
Amendment 135 #
Proposal for a directive
Recital 32
Recital 32
(32) The main objective of giving courts or tribunals the possibility to impose penalties is to deter potential claimants from initiating abusive court proceedings against public participation. Such penalties should be determined on a case-by-case basis and be proportionate to the elements of abuse identified to the amount of the claim and to the financial situation of the claimant, specifically when the claimant is a legal person. When establishing amounts for penalties, courts should take into account the potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threat the defendant.
Amendment 138 #
Proposal for a directive
Recital 33
Recital 33
(33) In the cross-border context, it is also important to recognize the threat of SLAPPs from third countries targeting journalists, human rights defenders and other persons engaged in public participation who are domiciled in the European Union. They may involve excessive damages awarded against EU journalists, human rights defenders and otherspersons engaging in public participation in the EU. Court proceedings in third- countries are more complex and costly for the targets. To protect democracy and freedom of expression and information in the European Union and to avoid that the safeguards provided by this Directive are undermined by recourse to court proceedings in other jurisdictions, it is important to provide protection also against manifestly unfounded and abusive court proceedings in third countries.
Amendment 139 #
Proposal for a directive
Recital 36
Recital 36
(36) This Directive is complementary to the Commission recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”). This recommendation is addressed to Member States and it provides a comprehensive toolbox of measures including training, awareness-raising, support to targets of abusive court proceedings and data collection, reporting and monitoring of court proceedings against public participation. When transposing this Directive, Member States should also ensure the implementation of the Commission’s recommendation. In this regard, Member States should pay particular attention to the implementation of the recommendations concerning, in particular, the inclusion of safeguards similar to those provided for by the present Directive for domestic cases not covered by the scope of this Directive, the provision of legal assistance to defendants in an affordable and easily accessible manner, and ensure the inclusion in their national transposition laws of targeted provisions to that effect.
Amendment 141 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36a) This Directive provides comprehensive support and preventive measures, including the establishment of national funds by Member States, non- financial support mechanisms such as the provision of legal aid and psychological support, as well as training, awareness- raising and data collection measures. It also seeks to ensure the collection of data by establishing common criteria at EU level. A national focal point should be established to gather and share information on all organisations that provide guidance and support for targets of abusive court proceedings against public participation. Such organisations may include associations of legal professionals, media and press councils, umbrella associations for human rights defenders, associations at Union and national level, law firms defending targets of manifestly unfounded or abusive court proceedings against public participation pro bono, legal clinics of universities and other non-governmental organisations.
Amendment 143 #
Proposal for a directive
Recital 36 b (new)
Recital 36 b (new)
(36b) Training for journalists, other media professionals and human rights defenders should strengthen their capacity to deal with abusive court proceedings against public participation. It should focus on recognising such court proceedings, how to manage being targeted by them and inform them of their rights and obligations in order for them to be able to take the necessary steps to protect themselves against such proceedings. Training should also be provided to legal professionals in order to increase awareness of abusive court proceedings and be able to detect them at a very early stage.
Amendment 144 #
Proposal for a directive
Recital 36 c (new)
Recital 36 c (new)
(36c) National Funds should be established by Member States to support and compensate victims of abusive court proceedings. The national funds should be partially funded by penalties.
Amendment 145 #
Proposal for a directive
Recital 36 d (new)
Recital 36 d (new)
(36d) The collection of data is paramount to document cases of abusive court proceedings and to provide solutions in order to prevent them. This Directive should establish common criteria to standardise the data collection procedures in Member States and ensure that comparable data is collected.
Amendment 146 #
Proposal for a directive
Article 1 – paragraph -1 (new)
Article 1 – paragraph -1 (new)
-1 This Directive sets minimum standards of protection of natural and legal persons who engage in public participation, playing an important democratic role in upholding public debate, fundamental rights and values, social inclusion, environmental protection and the rule of law, as well as strengthening democracy, gender equality, media freedom and pluralism in the EU.
Amendment 147 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive provides procedural safeguards against manifestly unfounded or abusive court proceedings, or threats of initiating legal action, in civil matters with cross- border implications brought directly or indirectly against natural andor legal persons, in particular journalists and human rights defenderssuch as journalists, media outlets and rights defenders, in particular, human rights, environmental, women's and LGBTIQ+ rights defenders, as well as civil society organizations, NGOs, activists, trade unions, artists, researchers, academics, bloggers, whistleblowers and political opposition, on account of their engagement in public participation, including online.
Amendment 153 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
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.
Amendment 154 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
This Directive shall apply to matterany type of legal claims or actions of a civil or commercial nature with cross- border implications, whatever the nature of the court or tribunal including claims pending before a national court at the time of its entry into force, irrespective of the nature of the court or tribunal. It shall include civil claims brought in criminal proceedings. 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) unless national law provides for it.
Amendment 155 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
1. ‘public participation’ means any statement or activity, preparatory, supporting or assisting action directly linked thereto, by a natural or legal person, expressed or carried out in the exercise of the right tofundamental rights and freedoms such as freedom of expression and information on a matter of public interest, and preparatory, supporting or assistfreedom of association and assembly, academic and artistic freedom, freedom of science and culture, the right of collective bargaining and action directly linked thereto. This include, the right to an effective remedy and the right to good administration. This includes any activity regardless of the nature, medium or format, which serves the disclosure, dissemination or promotion of information to the public such as complaints, petitions, administrative or judicial claims and participation in public hearings;
Amendment 159 #
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point a
Article 3 – paragraph 1 – point 2 – point a
(a) public health, safety, the environment, climate or enjoyment of fundamental rights, including labour rights, non-discrimination, gender equality and protection from gender- based violence, as well as media freedom and pluralism;
Amendment 167 #
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point d
Article 3 – paragraph 1 – point 2 – point d
(d) allegations of corruption, fraud or criminality, money laundering, extortion, coercion or other forms of intimidation and or criminality, including environmental crime;
Amendment 172 #
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point e
Article 3 – paragraph 1 – point 2 – point e
(e) activities aimed to protect democracy, the rule of law and to fight disinformation;
Amendment 174 #
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point e a (new)
Article 3 – paragraph 1 – point 2 – point e a (new)
(ea) scientific and research activities, including in the field of environment and climate;
Amendment 175 #
Proposal for a directive
Article 3 – paragraph 1 – point 2 – point e b (new)
Article 3 – paragraph 1 – point 2 – point e b (new)
(eb) academic and artistic activities;
Amendment 177 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 – introductory part
Article 3 – paragraph 1 – point 3 – introductory part
3. ‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfoundedcharacterised by elements indicative of an abusive use of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:
Amendment 181 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point -a (new)
Article 3 – paragraph 1 – point 3 – point -a (new)
(-a) the reliance of the court proceedings on one or more claims that are fully or partially unfounded;
Amendment 182 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point -a a (new)
Article 3 – paragraph 1 – point 3 – point -a a (new)
(-aa) the exploitation of economic advantage or political influence by the claimant against the defendant, leading to an imbalance of power between the two parties;
Amendment 188 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point c a (new)
Article 3 – paragraph 1 – point 3 – point c a (new)
(ca) the use of procedural tactics, such as delaying proceedings, and forum shopping;
Amendment 191 #
Proposal for a directive
Article 3 – paragraph 1 – point 3 – point c b (new)
Article 3 – paragraph 1 – point 3 – point c b (new)
(cb) a history of legal intimidation by the claimant, in the form of threats of legal action;
Amendment 194 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) the act of public participation, including online, concernings a matter of public interest against which court proceedings are initiated is relevant to more than one Member State either due to the cross-border nature or dimension of the act itself, or due to the interest which the public in different Member States may take in the matter concerned by the act, or
Amendment 198 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) early dismissal of manifestly unfounded court proceedingfully or partially unfounded claims in accordance with Chapter III;
Amendment 204 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States mayshall provide that measures on procedural safeguards in accordance with Chapters III and IV can be taken by the court or tribunal seised of the matter ex officio.
Amendment 205 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. Member States shall ensure that court proceedings brought against natural or legal persons on account of their engagement in public participation are dealt with in a swift and effective manner, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.
Amendment 208 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that non- governmental organisations safeguarding or promoting the rights of persons engaging in public participationcivil society organisations engaging in public participation, including non-governmental organisations safeguarding or promoting the rights of persons or the protection of the environment, trade unions and professional associations and other collective bodies acting in the interest of the defendant may take part in those proceedings, either in support of the defendant or on their behalf with the defendant’s approval, or to provide information.
Amendment 214 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
Member states shall ensure that in court proceedings against public participation, the court or tribunal seised has the power to require the claimant to provide security for costs, including procedural costs, or for proceduralcosts of legal representation, and other associated costs and damages, if it considers such security appropriate in view of presence of elements indicating abusive court proceedings against public participation as defined in Article 3(3) of this Directive.
Amendment 215 #
Proposal for a directive
Chapter III – title
Chapter III – title
Amendment 218 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall empower courts and tribunals to adopt an early decision to dismiss, in full or in part, court proceedings against public participation as manifestly unfoundedwhen they rely on claims that are fully or partially unfounded in the meaning of Article 3(3) of this Directive.
Amendment 229 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to prove that the claim is not manifestfully or partially unfounded.
Amendment 232 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1a. Pursuant to paragraph 1, when seeking to avoid an early dismissal, the claimant shall establish a prima facie case, as to each essential element of the court proceedings, that the claim is not fully or partially unfounded.
Amendment 235 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall take the necessary measures to ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all the costs of the proceedings, including the full costs of legal representation incurred by the defendant, unless such costs are excessive. This award of costs should be an automatic feature of the court’s decision within the same proceedings.
Amendment 236 #
Proposal for a directive
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
1a. Where the domestic law does not guarantee the compensation of costs for legal representation beyond statutory fee tables, the court should be enabled to indemnify costs not encompassed in statutory fee tables through compensation of damages pursuant to Article 15.
Amendment 237 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall take the necessary measures to ensure that a natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation is able to claim and to obtain full compensation for that harm, without the need to initiate separate court proceedings to that end.
Amendment 238 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. Member States shall ensure that full compensation for harm covers: (a) material damage, including but not limited to lawyer fees, when they are not reimbursable as costs, travel expenses and medical costs, in particular psychological assistance. Pre-trial costs should be considered material damages, if they are not included in costs according to national laws; (b) immaterial damage, including but not limited to different forms of physical and/or psychological harm, pain and suffering or emotional distress related to the court proceedings, impairment of life or of relationship, reputational damage and in general, any types of intangible damage.
Amendment 239 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall provide that courts or tribunals seised of abusive court proceedings against public participation have the possibility to impose effective, proportionate and dissuasive penalties on the party who brought those proceedings. 2. Member States shall ensure that the level of penalties are quantified and proportionate to the elements of abuse identified, to the amount of the claim and to the financial situation of the claimant, specifically when the claimant is a legal person. The potential for a harmful or chilling effect of the proceedings on public participation, including as related to the nature of the claim, whether the claimant has initiated multiple or concerted proceedings in similar matters and the existence of attempts to intimidate, harass or threaten the defendant, shall also be taken into account.
Amendment 240 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Member States shall ensure that the recognition and enforcement of a third- country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusfully or partially abusive as defined in Article 3(3) of this Directive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.
Amendment 241 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
2. Member States shall take the measures necessary to ensure that, where a court refuses recognition and enforcement of a third-country judgment in accordance with paragraph 1, the defendant is able to request and obtain from the court or tribunal of the Member State where recognition or enforcement is sought a declaratory judgment on the abusive nature of court proceedings on account of public participation pursuant to its own law.
Amendment 242 #
Proposal for a directive
Chapter V a (new)
Chapter V a (new)
CHAPTER VI - SUPPORT MEASURES Article 18a - National Fund 1. Member States shall establish a national fund for the compensation of any natural or legal person who has suffered harm as a result of an abusive court proceedings against public participation not covered by already existing national schemes for compensation to victims. 2. Member States shall ensure that organisations providing guidance and support for targets of abusive court proceedings against public participation are provided with sufficient resources in order to perform their tasks adequately. To this end, the fund provided for in paragraph 1 shall also be dedicated to provide financial support towards them, in particular to make sure that they have sufficient resources to react quickly against such proceedings. 3. National funds shall be partially funded by the penalties as provided for in Article 16 of this Directive. Member States shall decide on the amount of the penalties to be covered by the national funds. Article 18b - Non-financial support mechanisms 1. Member States shall ensure that non-financial support mechanisms are provided to persons engaging in public participation. Such measures shall include the provision of legal aid and psychological support, as well as information concerning the organisations providing guidance and support for targets of abusive court proceedings against public participation. The support and assistance shall be accessible and free of charge. 2. Member States shall establish a national focal point that gathers and shares information on all organisations that provide guidance and support for targets of abusive court proceedings against public participation. 3. Member States shall facilitate the exchange of information and best practices between organisations that provide guidance and support for targets of abusive court proceedings against public participation.
Amendment 243 #
Proposal for a directive
Chapter V b (new)
Chapter V b (new)
Amendment 244 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
Member States shall provide the Commission with all relevant information regarding the application of this Directive, in particular available data collected on the basis of Article 18e on data collection by [53 years from the date of transposition]. On the basis of the information provided, the Commission shall by [64 years from the date of transposition] at the latest, and every 5 years thereafter, submit to the European Parliament and the Council a report on the application of this Directive. The report shall provide an assessment of the evolution of abusive court proceedings against public participation and the impact ofassessing the purpose and objectives of this Directive. In particular, the report shall: (a) contain an assessment of the correct implementation of this Directive and its accompanying Recommendation by Member States. (b) provide an overview of the evolution of abusive court proceedings against public participation (c) assess compliance by Member States of Article 18e and provide an overview, findings and recommendations of the data collected. (d) provide an evaluation of the impact of this Directive in the Member States. (e) measure the progress made in preventing abusive court proceedings against public participation based on objective criteria included in the evaluation. (f) assess the possible need to amend this Directive. In this regard, the report shall be accompanied by legislative proposals to amend this Directive. (g) provide a detailed analysis of potential abusive court proceedings against public participation not covered under this Directive and consider the need for proposing new legislation to cover them. The analysis shall be accompanied by concrete proposals in this Ddirective in the Member States. If necessary, the reporon. (h) provide an overview about the steps taken by Member States to review their legal frameworks applicable to defamation to ensure that existing concepts and definitions cannot be used in the context of abusive court proceedings against public participation, and of the progress made by Member States in following the recommendations by the Council of Europe and OSCE. (i) assess whether the legal frameworks in Member States provide for the necessary safeguards to address abusive court proceedings, in full respect of fundamental rights and freedoms, and ensure protection. This assessment shall be accompanied by concrete proposals to amend this Directive. and recommendations. (j) follow-up on the progress achieved since the presentation of the last report.