Ana Carcau (grasp’s pupil in European Union Legislation on the Faculty of Legislation of College of Minho)
In early 2025, Greenpeace Worldwide initiated authorized proceedings earlier than Dutch courts in search of compensation for all of the damages and prices suffered from a collection of abusive lawsuits filed towards 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 extensively discuss with as Strategic Lawsuits Towards Public Participation (SLAPPs). They exemplify what has been described as “punishment by course of”: a manner of weaponizing authorized programs to suppress dissent moderately than to hunt justice.[2]
The authorized battle between Greenpeace and Power Switch is much from current. All of it dates again to 2017, when Power Switch started focusing on Greenpeace entities in the USA, in addition to Greenpeace Worldwide, within the aftermath of the 2016 Indigenous-led protests towards Dakota Entry Pipeline (DAPL). On the time, Power Switch alleged that Greenpeace had orchestrated the protests and sought to carry the organisation accountable for damages.[3]
The primary try took the type of a federal lawsuit below the Racketeer Influenced and Corrupt Organizations (RICO) Act, a statute historically used to prosecute organised crime. The court docket, nevertheless, was not satisfied because the decide concluded that the proof fell in need of what was wanted to determine 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, which means Greenpeace couldn’t profit from procedural safeguards which 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 state of affairs, the decision delivered by the jury in February 2025 discovered the Greenpeace entities accountable for greater than 660 million USD. For Greenpeace, this ruling represents a catastrophic final result – one which dangers reinforcing a harmful precedent: that organisations participating in public protest will be crushed below the burden of disproportionate litigation.[5]
What makes the lawsuit within the Netherlands notably important is that it might develop into the primary actual take a look at of the effectiveness of the just lately adopted Directive (EU) 2024/1069,[6] generally known as the Anti-SLAPP Directive. Though the Directive remains to be within the strategy of being transposed by Member States (transposition restrict date is Could 7, 2026),[7] its provisions could 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 should not simply authorized actions, they’re instruments of suppression, i.e. lawsuits initiated not essentially to win, however to exhaust. These instances create what authorized students have dubbed a “chilling impact”, which implies that there’s a normal 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 varieties: from a strategic alternative of jurisdiction, to counting on a number of absolutely or partially unfounded claims, or initiating a number of proceedings on related 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 protect journalists, human proper defenders, teachers and civil society organizations from meritless lawsuits which are filed with the intention of silencing or punishing participation in issues of public curiosity.[11] Usually introduced by highly effective people or companies, their goal 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 meant to not defend official rights however to limit, penalise or in any other case burden public participation.
The Directive applies solely to civil and industrial 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, making certain that procedural abuse is addressed in any respect phases 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 towards abusive court docket proceedings towards public participation – together with the awarding of prices, penalties, or different equally efficient applicable measures – towards 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 overlaying estimated authorized prices. This will likely 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 towards the claimant’s proper of entry to justice. It ought to solely be utilized the place there are enough indications that the proceedings are more likely 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 potential stage, sparing the defendant from pointless authorized burdens and procedural delays.[17] Though taken early within the course of, this choice 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 towards abusive court docket proceedings. These could 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 could embrace the cost of compensation for damages or the publication of the court docket’s choice.[20] These treatments have to be proportionate and dissuasive, with the goal of discouraging abusive litigation practices that threaten public participation.[21]
Importantly, the Directive additionally upholds the precept of efficient judicial safety, making certain that procedural instruments don’t infringe the suitable of entry to justice.[22] It attracts instantly 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 energetic function of nationwide courts as “functionally European” courts.[23] They’re the primary line of defence towards SLAPPs, and their potential to interpret and apply EU regulation is significant for making certain 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 risk: abusive selections originating from outdoors 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 below EU regulation.[24]
The Greenpeace lawsuit presents a singular alternative to see how these mechanisms would possibly play out in observe. The Dutch courts, by assessing the legitimacy of the SLAPPs introduced by a non-EU actor, will basically be pioneering a type of judicial resistance towards abusive litigation ways imported from overseas. Past its authorized complexity, this case is symbolic because it indicators that civil society is now not keen to play defence and places European courts and establishments to the take a look at: will they reside 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 information lawsuit towards 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 Info”, 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 towards 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 no 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 towards public participation”). OJ L, 2024/1069, 16.4.2024, ELI: http://information.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.
