Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court (hereinafter, “the Directive”) has been published in the Official Journal of the European Union. Its purpose is to eliminate obstacles to the proper functioning of civil procedures, and at the same time to protect natural and legal persons who carry out public activities on matters of public interest, including publishers, media, public interest groups and human rights defenders, as well as civil society organisations, NGOs, trade unions, artists, researchers and academics, against legal proceedings initiated with the aim of preventing them from civic engagement.
The Directive shall be applicable to any type of legal claim or action of a civil or commercial nature, with a cross-border element, adjudicated within the context of civil proceedings, regardless of the type of court. This includes procedures for temporary and injunctive relief, and counterclaims or other special means of legal protection. In the event of civil claims within the context of criminal proceedings, this Directive shall be applicable where their adjudication is fully governed by civil procedural law. However, the Directive is not applicable when the adjudication of such claims is governed in whole or in part by criminal procedural law.
The Directive establishes minimum rules, thus allowing Member States to adopt or maintain more favourable provisions for persons carrying out public interest litigation, including national provisions establishing more effective legal guarantees, such as responsibility to protect freedom of expression and information. The application of the Directive shall not justify any backtracking in relation to the current level of protection that is already in place in each Member State.
Abusive legal procedures to discourage public participation typically include procedural tactics of the plaintiff done in bad faith, which may be related to the choice of jurisdiction, litigating partially meritless claims, raising excessive claims, and the initiation of multiple proceedings on similar matters, which cause disproportionate costs on the defendant in these proceedings. The plaintiff’s past conduct and, in particular, any history of legal intimidation should also be considered in determining the abusiveness of the judicial process. Such procedural tactics, which are often combined with various forms of intimidation, harassment or threats before or during the procedure, go beyond the purpose of obtaining access to justice or the actual exercise of a right and are intended to deter public participation in relation to the subject at hand.
The Directive complies with the protection of fundamental rights, the EU Charter and the general principles of Union law. Accordingly, this Directive must be interpreted and applied in accordance with fundamental rights, including the right to freedom of expression and information, as well as the right to an effective remedy, an impartial tribunal and access to justice. In the application of this Directive, all the public authorities involved must strike, in cases of conflict between the relevant fundamental rights, a fair balance between the relevant rights, pursuant to the principle of proportionality.
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 7 May 2026.
by Alexandros Efstathiou
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