COMMISSION STAFF WORKING DOCUMENT analytical supporting document accompanying a 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") and a 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")
Date: 2022-04-27
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: communications profession, cross-border cooperation, freedom of communication, freedom of expression, human rights, judicial cooperation in civil matters in the EU, judicial proceedings, participatory democracy, political participation, right to justice

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 27.4.2022  SWD(2022) 117 final  COMMISSION STAFF WORKING DOCUMENT analytical supporting document accompanying                           a 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") and a 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")                 {COM(2022) 177 final} - {C(2022) 2428 final}  
 
 
1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

Nurturing,  protecting  and  strengthening  our  democracy  is  at  the  heart  of  the 
Commission’s priorities, as set out in President von der Leyen’s political guidelines.1 

A  cornerstone  of  healthy  and  thriving  democracies  is  a  guarantee  that  people  can 
participate  actively  in  public  debate  without  undue  interference.  For  meaningful 
participation, people must have access to reliable information and be able to form their 
own judgment in  a public space in  which different  views can be expressed freely. Free 
media  and  civil  society  representatives  have  a  crucial  role  to  play  in  stimulating  open 
debate. Therefore, it is important to protect journalists, human rights defenders and others 
involved  in  protecting  public  interest  from  manifestly  unfounded  or  abusive  court 
proceedings  (also  known  as  strategic  lawsuits  against  public  participation  (SLAPP) 
launched  against  them  by  powerful  individuals  and  entities,  including  corporations  and 
state organs) in an attempt to silence public debate. 
On  3  December  2020,  the  Commission  issued  a  European  Democracy  Action  Plan,2 
which announced a set of measures to promote public participation and support free and 
independent media, including this initiative to protect journalists and civil society against 
abusive  litigation  and  a  recommendation  on  the  safety  of  journalists.3  The  action  plan 
complements  other  initiatives,  e.g. the  strategy  to  strengthen  the  application  of  the 
Charter  of  Fundamental  Rights  in  the  EU,4  which  sets  out  actions  to  empower  civil 
society organisations and human rights defenders, as well as EU Rule of Law reports. 

The European Parliament  adopted an own-initiative report on SLAPP on  11 November 
20215  calling  for  the  Commission  to  present  a  comprehensive  package  of  measures 
against SLAPP, including legislation. 

1 https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf 

2 COM(2020) 790 final, 3.12.2020. 

3   Commission Recommendation on ensuring the protection, safety and empowerment of journalists and 

media professionals in the European Union, C(2021) 6650 final 

4   COM(2020) 711 final, 2.12.2020. 

5  European  Parliament  resolution  of  11  November  2021  on  strengthening  the  democracy  and  media 
freedom  and  pluralism  in  the  EU:  the  undue  use  of  actions  under  civil  and  criminal  law  to  silence 
journalists, NGOs and civil society (2021/2036(INI)). 

3 

 
 
                                                           
 
 
 
 
 
2.  PROBLEM DEFINITION 

2.1 

Definition of SLAPP  

SLAPP are a recent but increasingly prevalent form of interference with public debate in 
the EU, as shown by a study carried out for the Commission.6 They are a particular form 
of  harassment  used  against  journalists,  human  rights  defenders  and  others  (e.g. media 
outlets,  civil  society  organisations,  environmental  activists  and  researchers/academics) 
who are involved in matters of public interest. Typically, they are unfounded and abusive 
court proceedings lodged by powerful individuals or entities (companies or state organs) 
against  a  weaker  party  who  expresses  a  critical  position  on  a  matter  of  public  interest. 
The  purpose  is  to  intimidate  and  ultimately  silence  the  defendants  by  draining  their 
resources, e.g. by filing high claims for damages or deliberately lengthening proceedings. 
SLAPP  are  typically  not  initiated  with  a  view  to  winning  the  legal  proceedings  or 
obtaining any form of redress. Instead, “the procedure is initiated for the sole reason of 
having the procedure, in an attempt to intimidate, tire out, and consume the financial and 
psychological resources of the target, with the ultimate goal of achieving a chilling effect 
and  silencing  them,  which  will  also  discourage  other  potential  critics  from  expressing 
their  views”.7  SLAPP  may  have  a  deterrent  effect  on  other  potential  targets,  who  may 
decide not to assert their right to investigate and report on issues of public interest. 
According to a recent study,8 SLAPP “are groundless or exaggerated lawsuits and other 
legal  forms  of  intimidation  initiated  by  state  organs,  business  corporations  and 
individuals  in  power  against  weaker  parties  (…).  [The  latter  includes]  journalists,  civil 
society  organisations,  human  rights  defenders  –  and  others  who  express  criticism  or 
transmit messages uncomfortable to the powerful, on a public matter”. 

6 https://ec.europa.eu/info/sites/default/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf 

7  Scott  Griffen,  Defamation  and  Insult  Laws  in  the  OSCE  Region:  A  Comparative  Study,  2017, 

Organisation for Security and Co-operation in Europe, p. 1. 

8 Petra Bárd, Judit Bayer, Ngo Chun Luk and Lina Vosyliute, Ad-hoc Request – SLAPP in the EU context, 

2020, EU-Citizen: Academic Network on European Citizenship Rights, p. 5. 

4 

 
                                                           
 
 
 
 
SLAPP-initiating  entities  and  individuals  can  base  their  claims  on  various  grounds,  the 
most  common  being  defamation  (both  in  civil  and  criminal  suits),  data  protection, 
privacy laws, blasphemy, intellectual property or tax law.9 

Given the imbalance in power and resources, SLAPP can have a devastating impact on 
the targets’ financial status and produce chilling  effects,  dissuading or preventing them 
from  pursuing  their  work.  They  also  represent  a  threat  to  pluralistic  public  debate  at 
large, as they may lead to the self-censorship of the targets but also of others engaged in 
public  debate.  While  SLAPP  arise  in  both  domestic  and  cross-border  settings,  cross-
border cases involve an additional layer of complexity and costs, with even more adverse 
consequences for defendants. 

SLAPP  constitute  an  abuse  of  court  proceedings  (or  of  the  threat  to  bring  such 
proceedings),  threatening  democratic  values  and  the  exercise  of  fundamental  rights,  in 
particular the freedom of expression and information, and the freedom of the media and 
leading to additional cost and burdens for the court system. 

2.2   Drivers behind SLAPP 

Intentions  behind  SLAPP  may  differ  between  the  initiators  of  the  court  proceedings. 
When SLAPP are initiated by businesses or wealthy individuals, they are typically aimed 
at  protecting  their  financial  interest  or  reputation.  When  initiated  by  state  entities,  they 
may  be  also  aimed  at  protecting  the  politicians’  position,  or  even  at  undermining  the 
freedom  of  speech  as  the  primary  objective.  In  any  case,  SLAPP  have  a  common 
denominator  –  creating  a  chilling  effect  among  NGOs,  whistle-blowers,  journalists  (or 
more broadly – news outlets) and all citizens involved in public debate, and thus avoiding 
public scrutiny of the actions of their initiators.10 Another common theme of SLAPP is 
an  abuse  of  process  by  the  claimant,  or  excessive  claims  in  matters  in  which  the 
defendant is exercising his or her constitutionally protected right.11 

9  Scott  Griffen,  Defamation  and  Insult  Laws  in  the  OSCE  Region:  A  Comparative  Study,  2017, 

Organisation for Security and Co-operation in Europe, p. 6.  

10  Reporters  Sans  Frontières,  RSF  and  60  other  organisations  call  for  an  EU  anti-SLAPP  directive, 
2.12.2020, consulted on 26.8.2021, available at:  https://rsf.org/en/news/rsf-and-60-other-organisations-
call-eu-anti-slapp-directive 

11 European Parliament, The Use of SLAPPs to Silence Journalists, NGOs and Civil Society, June 2021 p. 

12 

5 

 
                                                           
 
 
The phenomenon of forum shopping (or libel tourism) is a factor amplifying the problem. 
Some  jurisdictions,  e.g.  Ireland  or  Malta,  are  perceived  as  more  claimant-friendly.12 
Suing  the  defendant  outside  of  his  or  her  place  of  abode  may  further  exhaust  their 
resources,  as  it  adds  a  linguistic  barrier,  geographical  dimension,  and  drives  up  legal 
costs even further. The effect is even stronger when the target (journalist, rights defender 
or other) is sued outside the EU, for instance in the United States or the United Kingdom. 

2.3  Quantitative and qualitative data related to SLAPP 

As observed by Borg-Barthet,  Lobina  and  Zabrocka in  their 2021 report  commissioned 
by the European Parliament,  due to  the nature of the phenomenon, it is  not  possible to 
provide exact numbers related to it.13 An attempt can be made, however, at illustrating its 
scale. 

Perhaps  the  most  widely  known  example  of  SLAPP  against  journalists  is  the  case  of 
Daphne Caruana Galizia, a Maltese journalist who was killed  by a car bomb in 2017.14 
Caruana  Galizia  was  involved  in  the  Panama  Papers15  investigation.  At  the  time  of  the 
attack, she had 47 pending defamation court proceedings against her, filed in Malta, the 
United States and the United Kingdom.16 Whereas this example provides an illustration 
of the insistence of SLAPP initiated by private entities, emanations of state are not idle 
plaintiffs, either. Gazeta Wyborcza, a Polish daily, reports of pending court cases against 
it in which it is either the Polish state or state-owned companies acting as claimants.17 

12 Jessica  Ní Mhainín,  A gathering storm  - The laws being used to silence the media, 2020, available at: 

https://euagenda.eu/upload/publications/a-gathering-storm.pdf.pdf  

13 European Parliament, The Use of SLAPPs to Silence Journalists, NGOs and Civil Society, June 2021, p. 

45. 

14 Juliette Garside, Malta car bomb kills Panama Papers journalist, ”The Guardian”, 16.10.2017, available 
at https://www.theguardian.com/world/2017/oct/16/malta-car-bomb-kills-panama-papers-journalist 

15 2016 leak of over 11.5 million documents linking prominent figures of global politics and business to tax 
evasion  practices:  https://www.icij.org/investigations/panama-papers/pages/panama-papers-about-the-
investigation/ 

16 https://www.the-case.eu/slapps-in-europe, consulted on 26.8.2021 

17 Wojciech Czuchnowski, Katarzyna Korzeniowska, Kończy się talia wolnych mediów. PiS szybko zgarnia 

kolejne karty, Gazeta Wyborcza, 13.8.2021, available at 
https://biqdata.wyborcza.pl/biqdata/7,159116,27448575,kurczy-sie-talia-wolnych-mediow-zobacz-kto-
zgarnia-kolejne.html 

6 

 
                                                           
 
 
These examples are not outliers in Europe. In 2014, the Council of Europe, together with 
a  number  of  NGOs  defending  the  freedom  of  expression,  launched  a  Platform  for  the 
Protection  of  Journalism  and  Safety  of  Journalists18.  Thanks  to  the  collection  of  alerts 
regarding attacks on media freedom, the annual reports linked to this platform provide a 
telling insight into the numbers and dynamic of SLAPP.  

The 2021 Annual Report of the partner associations to the Council of Europe Platform to 
Promote  the  Protection  of  Journalism  and  Safety  of  Journalists  underlines  the  notable 
increase  of  SLAPP-related  alerts  reported  in  2020  over  the  previous  year,  both  in 
numbers of alerts and jurisdictions of Council of Europe member states concerned.19  

Croatia,  Estonia,  France,  Germany,  Hungary,  Malta,  Poland  and  Slovakia  have  been 
identified as notable examples of jurisdictions where SLAPP is rising in numbers.20 

Evidence from the 2021 Commission Rule of Law Report21 suggests that SLAPP against 
journalists  are  a  serious  concern  in  several  Member  States.  The  evidence  of  their 
increasing occurrence in the EU appears to point to a need for action in order to enhance 
protection for potential targets. Such action includes raising awareness and knowledge on 
SLAPP  among  legal  practitioners  (e.g. lawyers,  judges  and  prosecutors)  and  potential 
targets  (notably  journalists,  media  houses,  and  civil  society  representatives  and 
organisations). 

Information  collected  on  the  European  Media  Pluralism  Monitor22  also  shows  a 
deterioration  in  journalists’  working  conditions.  While  there  is  more  available  data  on 
threats to journalists, human rights defenders are facing the same problems.  

18 Available at https://www.coe.int/en/web/media-freedom (consulted on 6.9.2021).  

19 In 2021, 282 alerts were published on the Platform to promote the protection of journalism and safety of 
journalists (coe.int), amongst these, several concerned cases of judicial intimidation, i.e. opportunistic, 
arbitrary  or  vexatious  use  of  legislation,  including  defamation,  anti-terrorism,  national  security, 
hooliganism  or  anti-extremism  laws.  The  2021  Annual  Report  by  the  partner  organisations  to  the 
Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists noted an 
increase  in  2020  over  the  previous  year,  both  in  numbers  of  alerts  and  jurisdictions  of  Council  of 
Europe member states concerned - 1680a2440e (coe.int).  

20 Supra., at 6. 

21   https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-

mechanism/2021-rule-law-report_en  

22   https://cmpf.eui.eu/media-pluralism-monitor/ 

7 

 
                                                           
 
 
 
Media  Freedom  Rapid  Response  (MFRR)  partners  have  documented  no  less  than  626 
press  freedom  violations  in  EU  Member  States,  candidate  countries  and  the  United 
Kingdom  in  2021,  among  them  numerous  SLAPP,  affecting  1063  persons  or  media 
entities  in  30  countries.23  A  separate  factsheet  provides  data  concerning  the  27  EU 
Member States.24 

The recent Article 19 report25 provides a Europe-wide overview of SLAPP and is based 
on  in-depth  research  on  SLAPP  litigation  against  journalists  in  11  countries  across 
Europe26 over the last four years. It concludes that there is a clear overall trend of SLAPP 
cases  targeting  journalists,  media,  civil  society  organisations  and  individuals  in  nearly 
every  country  researched  and  that  SLAPPs  represent  a  real  threat  to  freedom  of 
expression and participation on matters of public concern. 

The  2022  report27  of  the  Coalition  Against  SLAPPs  in  Europe  (CASE)  and  the 
Amsterdam Law Clinics (ALCs) surveyed 570 cases to identify the full scale and nature 
of the SLAPP problem. It is intended to give a general overview of the nature of SLAPPs 
in Europe and the common trends and patterns identifiable in the documented cases. 

2.4 

SLAPP-related alerts from 2021 

Examples  of  how  SLAPP  concretely  unfold  is  provided  by  the  Council  of  Europe 
Platform  for the safety of journalists. SLAPP-related alerts  in  the Platform  are grouped 
together with other forms of harassment and intimidation of journalists. In the year 2021, 
over  300  alerts  were  submitted  by  partner  organizations,  amongst  these  several 
concerned  cases  of  judicial  intimidation,  meaning  opportunistic,  arbitrary  or  vexatious 
use of legislation, including defamation, anti-terrorism, national security, hooliganism or 
anti-extremism  laws;  issuing  bogus  or  fabricated  charges.  Instances  of  SLAPP-related 

23 https://www.ecpmf.eu/wp-content/uploads/2022/02/MFRR-Monitoring-Report.pdf  

24 https://www.mfrr.eu/wp-

content/uploads/2022/02/2022_02_17_MFRR_FACT_SHEET_MAPPING_MEDIA_FREEDOM_Euro
pean_Union_Member_States_Year_2021.pdf  

25  https://www.article19.org/wp-content/uploads/2022/03/A19-SLAPPs-against-journalists-across-Europe-

Regional-Report.pdf  

26 Belgium, Bulgaria, Croatia, France, Hungary, Ireland, Italy, Malta, Poland, Slovenia, and the UK. 

27https://static1.squarespace.com/static/5f2901e7c623033e2122f326/t/6231bde2b87111480858c6aa/16474

27074081/CASE+Report+on+SLAPPs+in+Europe.pdf  

8 

 
                                                           
 
 
alerts published in the Platform originate from a number of Council of Europe Member 
States,  including  several  EU  countries,  clearly  showing  the  worrisome  width  of  the 
phenomenon,  often  enacted  by  powerful  complainants  possessing  greater  means  and 
resources than the defendants and whose underlying objective is to silence public debate 
on matters they consider undesirable.  

SLAPP alerts in the Platform for the year 2021 include:  

-  The case of the Bulgarian Editor Stoyan Tonchev, facing charges of ‘Hooliganism’, 
supposedly in retaliation for his journalistic investigation into the alleged corruption 
of a senior magistrate and related publishing;28 

-  Also in Bulgaria, three defamation court proceedings filed against the financial editor 

- 

- 

of newspaper Nickolay Stoyanov;29  
In Croatia, in an alert created in September 2021, it is submitted that the publisher of 
the Croatian news website Index.hr, and its journalists currently face 65 active court 
proceedings before Croatian courts; amongst these 56 are defamation claims against 
the  publisher,  nine  are  defamation  claims  against  journalists  and  three  are  claims 
under  the  EU  General  Data  Protection  Regulation  (GDPR),  anti-discrimination  and 
copyright laws;30  
In March 2021, the Minister of Justice and Prosecutor-General of Poland filed a court 
proceedings against the editor-in-chief of Gazeta Wyborcza, Adam Michnik over an 
article written by the newspaper’s investigative journalist, reportedly the case is one 
of the 60 civil and criminal cases against Gazeta Wyborcza, initiated by politicians of 
the  ruling  Law  and  Justice  party  (PiS),  various  ministries,  state-owned  companies, 
and business people with close ties to the government;31  

-  A British journalist and his Portuguese publisher, following the publication of a book 
investigating  corruption  and  kleptocracy,  received  letters  warning  them  of  legal 
action in Portugal and were then notified a “declarative action of conviction” where it 
appears that €525,000 in compensation is being sought from the author and €225,000 
from the publisher;32  

28 https://fom.coe.int/alerte/detail/79634050?langue=en-GB  

29 https://fom.coe.int/alerte/detail/100064153?langue=en-GB  

30 https://fom.coe.int/alerte/detail/107128483?langue=en-GB  

31 https://fom.coe.int/alerte/detail/93414878?langue=en-GB  

32 https://fom.coe.int/alerte/detail/107136614?langue=en-GB  

9 

 
                                                           
 
 
- 

In  Romania,  three  investigative  journalists  and  two  media  outlets  were  sued  for 
defamation  over  a series of articles alleging  sexual abuses and rape in an Orthodox 
Christian high school;33  

-  Still  in  Romania,  over  €488,000  in  damages  were  claimed  from  an  investigative 
journalism  project  and  a  journalist  over  an  article  on  the  sale  of  masks  that  were 
allegedly faulty;34  
In  Slovenia,  the  Prime  Minister  accuses  German  television  ARD  Correspondent 
Nikolaus Neumeier of Nazi-style Propaganda after Criticism;35  
In Spain, the far-right party Vox issued a veiled threat against Magazine Publisher.36  

- 

- 

The Platform partner organisations’ 2021 Annual Report “Wanted! Real action for media 
freedom  in  Europe”37  notes  that  powerful  individuals  or  companies  brought  court 
proceedings  that  had  little  legal  merit  and  were  designed  to  intimidate  and  harass 
journalists  by  introducing  burdensome  legal  costs.  According  to  the  Report,  SLAPP 
appear  in  all  three  of  the  legislative  areas:  civil,  administrative  and  criminal  law. 
Addressing the abuse  in  the area  of  civil  law, the Report notes that, in  some cases, the 
desired  chilling  effect  is  pursued  merely  by  threatening  litigation  or  other  intimidating 
action.  SLAPP’s  targets  are  frequently  the  publisher  as  well  as  the  editor  or  individual 
journalists.  

2.5   Examples of potential cross-border SLAPP 

There  are  indications  of  potential  SLAPP  in  the  following  cases  flagged  in  the  public 
consultation  and  other  reporting  on  SLAPP,  although  bringing  a  defamation  claim  to 
court cannot in itself be considered per se as being SLAPP: 

- 

In  2016  Holzindustrie  Schweighofer  (now  HS  Timber  Group)  brought  defamation 
proceedings  in  Austria  against  the  Romanian  vice-president  of  a  small  Romanian 
NGO, Neuer Weg, which was campaigning against illegal logging. 

33 https://fom.coe.int/alerte/detail/97308654?langue=en-GB  

34 https://fom.coe.int/alerte/detail/101422058?langue=en-GB  

35 https://fom.coe.int/alerte/detail/97358405?langue=en-GB  

36 https://fom.coe.int/alerte/detail/103833260?langue=en-GB  

37 https://rm.coe.int/final-version-annual-report-2021-en-wanted-real-action-for-media-freed/1680a2440e  

10 

 
                                                           
 
 
- 

- 

- 

In  2018,  Bulgarian  co-owner  of  Maltese  bank  Satabank,  Christo  Georgiev,  sued 
Maltese  independent  journalist  Manuel  Delia  in  Bulgaria  for  a  blog  entry  in  which 
Manuel Delia reported how he had chosen to remove a story on money laundering by 
the  Satabank  bank  after  receiving  legal  threats.  In  2020,  Christo  Georgiev  sued  the 
Times of Malta in Bulgaria for alleged damage to his reputation because the Times of 
Malta had reported on an ongoing money laundering inquiry concerning Satabank. 
In 2018, a Dutch company, Elitech sued Friends of the Earth Croatia in Croatia for its 
campaign against a golf resort in Dubrovnik. In addition, the investors were seeking a 
court order to prevent  Friends of Earth Croatia from speaking against the project in 
public.  
In  November  2020,  the  Swedish  online  business  and  finance  magazine  Realtid,  its 
editor  in  chief  and  two  journalists  in  their  personal  capacity  (one  of  them  Annelie 
Östlund) were sued from London by Mr Svante Kumlin, a Swedish businessman and 
CEO  of  Eco  Energy  World  on  the  ground  of  defamation.  Realtid  had  been 
investigating  a  network  of  stock  promotors  selling  shares  in  Eco  Energy  World 
(EEW)  to  private  individuals  in  Sweden  while  at  the  same  time  the  company  was 
preparing  a  major  financing  round  and  a  stock  exchange  launch  in  Norway.  The 
company  always  declined  to  comment  ahead  of  publications.  Instead,  Realtid 
received  legal  threats  from  Monaco,  where  the  company  owner  resides,  and  from 
London, where the company is registered. Despite the charges, Realtid continued to 
publish information perceived as beneficial for investors and of public interest. The 
following elements  strongly indicate the orchestration of a SLAPP:  Mr Kumlin and 
Eco Energy World claimed to have “significant business interests” in the UK which 
would justify the competence of the UK civil courts. The decision on competence is 
still  awaited.  Suing  in  the  UK  seems  a  strategic  decision  since  in  Sweden,  the 
plaintiff would only be able to sue the company and its editor in chief (principle of 
the responsible editor), but not the journalists. Also, Swedish law would not admit a 
company’s claim on defamation, as only individuals can be defamed.  

2.6   Council of Europe 

Several texts adopted at the Council of Europe refer explicitly to the problem of SLAPP 
or  other  forms  of  intimidating  or  vexatious  litigation  against  journalists  and  media 
outlets, including online media. The Recommendation on the roles and responsibilities of 
internet  intermediaries,  adopted  by  the  Committee  of  Ministers  in  March  2018,  states 
explicitly that “State authorities should consider the adoption of appropriate legislation to 
prevent strategic lawsuits against public participation (SLAPP) or abusive and vexatious 
litigation against users, content providers and intermediaries which is intended to curtail 
the right to freedom of expression.” 

The  Council  of  Europe  has  produced  the  following  further  documents  on  SLAPP  or 
related to SLAPP: 

-  Study on the alignment of laws and practices concerning defamation with the relevant 
case-law  of  the  European  Court  of  Human  Rights  on  freedom  of  expression, 
particularly with regard to the principle of proportionality, 2012. 

11 

 
-  Freedom of expression and protection of reputation, a study of the case law of ECHR, 

2016.38 

-  Recommendation on the roles and responsibilities of internet intermediaries, adopted 

by the Committee of Ministers in March 2018.39  

-  Liability  and  jurisdictional  issues  in  online  defamation  cases,  Council  of  Europe 

study DGI(2019)04.40 

-  Council of Europe and others, Hands off press freedom: attacks on media in Europe 
must  not  become  a  new  normal  (Platform  for  the  protection  of  journalism  and  the 
safety of journalists / Council of Europe 2020).41 
In  2021,  the  Council  of Europe’s  Commissioner  for  Human  Rights42  observed  that, 
while SLAPP are not a new phenomenon, the extent of the problem is increasing. 

- 

-  Declaration  of  the  Committee  of  Ministers  on  the  Desirability  of  International 
Standards in 2021 dealing with Forum Shopping in respect of Defamation concerning 
“libel tourism”. 

-  Many NGOs have asked the Council of Europe to issue a recommendation to combat 

SLAPP.43  

The Council of Europe shares the concerns of the European Union regarding the rising 
threat  of  SLAPP  to  democracy  and  freedom  of  expression  and  information.  Therefore, 
the  Council  of  Europe  has  decided  to  launch  work  to  prepare  a  recommendation  on 

38 JUST PUBLISHED - Freedom of expression and protection of reputation - Home (coe.int) 

39 “State authorities should consider the  adoption of appropriate legislation to prevent strategic lawsuits 
against  public  participation  (SLAPP)  or  abusive  and  vexatious  litigation  against  users,  content 
providers and intermediaries which is intended to curtail the right to freedom of expression.” 

40 168097d9c3 (coe.int) 

41 Hands off press freedom: attacks on media in Europe must not become a new normal (coe.int) 

42  Time  to  take  action  against  SLAPPs  -  Human  Rights  Comments  -  Commissioner  for  Human  Rights 

(coe.int) 

43  Statement  on  The  Need  for  a  Council  of  Europe  Recommendation  on  Combatting  SLAPPs  —  (the-
case.eu) Extract:  “a self-standing recommendation should be  issued with clear guidance on measures 
needed to discourage SLAPPs and dismiss them at an early stage, to sanction those who use SLAPPs or 
threaten  to  do  so,  and  to  provide  financial and  legal  support  to  those  targeted  by  SLAPPs.  It  should 
also  give  guidance  on  how  to  prevent  the  use  of  forum  shopping,  whereby  cases  are  brought  in 
jurisdictions that maximise the cost and inconvenience for the defendant.” 

12 

 
                                                           
 
 
SLAPP.  In  2022  a  specific  committee  has  started 
recommendation.  

its  work 

to  prepare 

the 

2.7 

United Nations 

The  right  to  freedom  of  expression  is  protected  by  Article  19  of  the  Universal 
Declaration  of  Human  Rights,44  and  given  legal  force  through  Article  19  of  the 
International Covenant on Civil and Political Rights (ICCPR).45 

States  have  the  obligation  to  respect  and  ensure  the  right  to  freedom  of  opinion  and 
expression for all, including for journalists and the media.46 In General Comment No. 31, 
the  Human  Rights  Committee  stated  that  States  also  have  a  positive  duty  to  protect 
against  any  undue  limitation  or  restriction  on  freedom  of  expression  from  both  State 
agents  and  private  parties.47  In  practice,  this  means  that  States  must  guarantee  a  broad 
protection  of  the  right  to  freedom  of  expression  in  the  national  legal  system  and  also 
should undertake all necessary measures to give effect to the right and protect its exercise 
from undue restrictions. States must adopt legislative, judicial, administrative, or special 
measures geared towards safeguarding the exercise of freedom of expression in line with 
international and regional human rights standards.48 

The positive obligation is central to addressing situations when legal actions are brought 
solely to harass or subdue an adversary and prevent an exercise of fundamental rights and 
the right to freedom of expression. This applies to SLAPPs. Although there is no uniform 
definition of SLAPPs and different concepts are used in laws and advocacy, the impact of 
SLAPPs  on  freedom  of  expression  and  human  rights  has  been  widely  recognised.  For 
instance: 

44  Although  as  a  UN  General  Assembly  resolution,  the  Universal  Declaration  of  Human  Rights  is  not 
strictly  binding  on  States,  and  many  of  its  provisions  are  regarded  as  having  acquired  legal  force  as 
customary  international  law;  see  Filartiga  v.  Pena-Irala,  630  F.  2d  876  (1980)  (US  Circuit  Court  of 
Appeals, 2nd circuit).  

45 International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, UN Doc. A/6316. 

46 Article 2 of the ICCPR read in conjunction with Article 19. Article 1 of the European Convention read in 

conjunction with Article 10. 

47 General Comment No. 31, paras 6 & 8. 

48 Ibid. See also European Court’s interpretation in Hokkanen v. Finland, (1994) and López-Ostra v. Spain, 
(1994)  where  it  interprets  the  positive  obligation  of  State  parties  in  similar  terms  as  the  UN  Human 
Rights Committee. 

13 

 
                                                           
 
 
-  The  UN  Special  Rapporteur  on  the  right  to  freedom  of  peaceful  assembly  and  of 
association,  and  the  UN  Special  Rapporteur  on  extrajudicial,  summary,  or  arbitrary 
execution have raised concerns over the use of SLAPPs against assembly organisers. 
This concerned, in particular, instances where business entities seek injunctions and 
civil  remedies  against  protesters  on  the  basis  of  trespass  or  defamation  laws.  The 
mandate holders established that States have the obligation to ensure due process and 
to protect assembly organisers from civil actions that lack merit.49 
In General Comment  No. 24, the UN Committee on Economic, Social and Cultural 
Rights established that “actions [instituted] by corporations to discourage individuals 
or  groups  from  exercising  remedies,  for  instance  by  alleging  damage  to  a 
corporation’s  reputation,  should  not  be  abused  to  create  a  chilling  effect  on  the 
legitimate exercise of such remedies”.50 

- 

-  The UN Working Group on Business and Human Rights recommended States enact 
anti-SLAPP  legislation  to  ensure  that  human  rights  defenders  are  not  subjected  to 
civil liability for their activities.51 

-  The Resolution on Safety of Journalists, adopted by the UN Human Rights Council 
(UN HRC) at its 46th session, recognised SLAPPs against the media as an attempt to 
silence journalists and media workers and as a means used by business  entities  and 
individuals  to  exercise  pressure  on  journalists  and  stop  them  from  critical  and/or 
investigative reporting.52 

3.  WHY SHOULD THE EU ACT? 

3.1 

Legal basis 

The  legal  basis  for  the  legislative  instrument  is  Article  81(2)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU),  which  is  the  legal  basis  for  civil  judicial 

49 UN HRC, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of 
association and the Special Rapporteur on extrajudicial, summary or arbitrary execution on the proper 
management of assemblies, UN Doc.A/HRC/31/66, 4 February 2016, para 84. 

50 UN Committee on Economic, Social and Cultural Rights, General Comment No. 24 on State obligations 
under the International Covenant on Economic, Social  and Cultural Rights in the context of Business 
Activities, E/C.12/GC/24, 10 August 2017. 

51 UN Working Group on Business and Human Rights, Guidance on National Actions Plans on Business 

and Human Rights, 2016, p. 31. 

52 UNHRC, Resolution 45/18 on the Safety of Journalists, A/HRC/45/L.42/Rev.1, 1 October 2020, p.3. 

14 

 
                                                           
 
 
cooperation. The legal basis for the Recommendation is Article 292 TFEU, which allows 
the Commission to adopt recommendations.  

3.2 

Subsidiarity: Necessity and added value of EU action 

SLAPP are an EU-wide problem – they can be both domestic and cross-border, but cases 
with cross-border implications represent a particular challenge. Also, the number of cases 
with  cross-border  implications  is  increasing  since  today  a  statement  or  activity  is 
normally accessible or visible across borders via electronic means and can lead to court 
proceedings initiated against the SLAPP target in another Member State. This risk grows 
if the safeguards are divergent in Member States. Action at EU level helps to combat the 
emergence and growth of SLAPP throughout the EU in a consistent manner and ensure 
convergence  in  Member  States’  approaches  to  the  phenomenon.  However,  the  action 
should be targeted and limited to what is necessary to ensure consistency in approach in 
the  Member  States.  In  this  respect,  there  is  a  need  to  balance  access  to  justice  as 
guaranteed  in  Article  47  of  the  Charter  of  Fundamental  Rights  of  the  European  Union 
and  personality/privacy  rights  with  the  protection  of  freedom  of  expression  and 
information.  

Currently,  there  are  very  limited  procedural  safeguards  against  SLAPP  under  national 
law,  they  are  not  SLAPP-specific  and  the  situation  varies  between  Member  States. 
Therefore, Member States acting individually cannot resolve the problem satisfactorily.53  

Joint  action  from  the  Member  States  is  needed  also  to  fight  against  SLAPP  from  third 
countries  because  otherwise  claimants  will  seek  to  benefit  from  divergence  of  systems 
between  Member  States  and  seek  the  recognition  and  enforcement  of  third-country 
SLAPP  judgments  where  it  can  be  most  easily  obtained.  In  the  absence  of  specific 
safeguards  costs  and  harassment  outside  the  EU,  SLAPP  could  be  inflicted  without 
remedies  against  abuse  and  plaintiffs  could  just  resort  to  other  fora  to  circumvent 
protection. Where (due to different standards of the protection of fundamental rights or 
different rule-of-law standards) a plaintiff is successful in  a third country in a case  that 
would be qualified as SLAPP in the EU, even the recognition and enforcement could be 
conceivable (subject only to the general ordre public clause). 

53  According  to  available  information  only  23  MS  are  currently  considering  SLAPP-specific  measures 

(MT, LT and IE). 

15 

 
                                                           
 
 
4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

By  targeting  journalists,  human  rights  defenders  and  others  in  their  public  watchdog 
function, SLAPP represent a serious threat to democracy and fundamental rights, such as 
freedom  of  expression  and  information.  This  includes  people’s  right  to  receive  and 
impart  information  and  ideas  without  external  interference  and  to  take  part  in  fair 
democratic debate. It also represents a threat to their rights in public participation. This 
initiative aims to address this threat and help ensure the proper functioning of the checks 
and balances of a healthy democracy. 

In particular, the initiative aims to protect journalists, human rights defenders and others 
from the use and effects of SLAPP by: 

(1)  

ensuring that the procedural toolbox provides courts and tribunals and other legal 
professionals with effective means to deal with SLAPP and targets with the means 
to defend themselves;  

(2)   building  awareness  and  expertise  among  legal  professionals  and  targets  that  will 

help them take action against SLAPP;  

(3)  

ensuring that support is available for those facing SLAPP; and 

(4) 

ensuring a more systematic monitoring of SLAPP. 

It should be stressed that there is no implicit assumption that court proceedings against 
journalists and human rights defenders are by default unfounded and that they may need 
special  treatment  by  the  legal  system.  This  is  only  the  case  where  SLAPPs  are  used 
against  journalists  and  others.  It  is  therefore  not  the  objective  of  this  initiative  to 
introduce different legal standards depending on who is sued. 

5.  STATE OF PLAY 

Anti-SLAPP  legislative  measures  may  seek  to  eliminate  the  effects  of  SLAPP  in  three 
main ways: by deterring the filing of SLAPP, by providing avenues for a quick dismissal 
of a SLAPP, once it is filed; and by providing for other remedies. This section presents 
an  analysis  of  the  relevant  legislation  and  case  law  of  Member  States  (subsections  5.1 
and 5.2).  

Member  States  do  not  have  specific  safeguards  against  SLAPP.  Annex  3  provides  an 
overview of the characteristics of civil proceedings in Member States which are relevant 
for SLAPP. It contains information on possibilities of early dismissal in first and second 
instance  proceedings  and  an  overview  of  existing  rules  in  Member  States  on  abuse  of 
rights, showing that at present there are no specific procedural tools against SLAPP. With 
the existing limited possibilities, SLAPP can only be dismissed under the same rules as 
any other claims that may be unfounded, costs only be awarded under the same rules as 
for other court proceedings and penalties are not available except where there are general 
provisions on abuse of procedure. For the specific situation of SLAPP where it is not the 
objective  of  the  plaintiff  to  win  the  case,  but  to  harass  the  defendant,  just  ensuring 

16 

 
eventual  dismissal  is  not  an  appropriate  solution.  They  require  instead  a  speedy 
procedure  leading  to  the  dismissal  of  the  claim,  penalties  for  the  claimant  and  the 
elimination or at least reduction of damages imposed on the SLAPP target. 

Specific  statistics  on  civil  proceedings  do  not  exist  in  most  EU  Member  States.  Apart 
from general information regarding the total number of civil cases, appellate proceedings 
and  enforcement,  specific  data  (i.e.  on  the  number  of  cases  under  the  specific  EU 
procedural  law  instruments,  precise  numbers  of  cross-border  cases  etc.)  are  missing. 
Also, courts and other authorities in Member States do not ordinarily distinguish between 
purely national cases or international cases and cases with an EU element. 

Anti-SLAPP non-legislative measures may seek to build awareness and expertise among 
SLAPP targets, legal professionals and other groups, ensure that support is available for 
those facing SLAPP and ensure a more systematic monitoring of SLAPP. Subsection 5.3 
presents  an  overview  of  the  situation  regarding  awareness,  knowledge  and  data 
monitoring and occurrence of SLAPP in the EU. 

5.1 

The notion of public interest 

An  effective  way  of  fighting  SLAPP  is  their  dismissal  at  the  earliest  possible  stage  of 
proceedings  in  those  cases  where  the  court  proceedings  are  evidently  and  manifestly 
unfounded  (sections  5.1  and  5.2).  This  may  however  not  always  be  possible  or 
successful, which means that the court would have to consider SLAPP on substance. The 
notion of the public interest is inherent to actions of public participation that are targeted 
by SLAPP is a key concept in that context and may provide an avenue to discharge the 
defendant  from  liability  for  actions  that  were  in  the  public  interest  (5.1.2)  or,  as  a 
measure of last resort, cancel or reduce the damages owed to the plaintiff (5.1.3).54  

5.1.1  European Convention on Human Rights 

The  role  of  public  interest  is  most  frequently  considered  in  the  context  of  a  collision 
between freedom of expression of a journalist/publisher/activist and the right to privacy 
of  another  individual  or  even  a  legal  entity.55  The  two  rights  are  enshrined  in  the 

54 Please note that a limited number of Member States  were included in the  public interest analysis. The 
references in the text to certain Member State(s) serve as examples, but do not preclude the existence of 
a relevant legislation/case law in other Member States as well. 

55 Please note that the ECtHR has emphasized that there is a difference between the reputation of a legal 
entity  and  the  reputation  of  an  individual.  See  e.g.  ECtHR,  Margulev  v.  Russia,  Application  no. 
15449/09  (8  January  2020),  paragraph  45.    See  also  ECtHR,  OOO  Memo  v.  Russia,  Application  no. 

17 

 
                                                           
 
 
 
 
 
European  Convention  on  Human  Rights  (ECHR)  and  usually  also  form  part  of  the 
fundamental rights under the constitutions of the Member States. 

The collision of two convention rights that deserve equal protection requires a balancing 
test,  the  outcome  of  which  should  in  principle  be  the  same  whether  court  proceedings 
have been lodged under Article 8 of the ECHR (right to privacy) by the person who was 
the  subject  of  a  certain  publication,  or  under  Article  10  of  the  ECHR  (freedom  of 
expression) by the publisher, journalist or activist that may be targeted by a SLAPP.56 In 
its landmark cases  Von  Hannover  (no. 2)57 and  Axel  Springer58, the  European Court of 
Human Rights (ECtHR) developed the criteria which national courts should follow when 
determining  whether the right  to  privacy may be limited by the freedom  of expression. 
One of the principal elements of the balancing test is that a publication contributes to a 
debate  of  general  interest.59  In  a  recent  case  OOO  Memo  v.  Russia60,  the  ECtHR 
specifically refers to the growing awareness of the risks that court proceedings instituted 
with  a  view  of  limiting  public  participation  bring  for  democracy  and  to  the  power 
imbalance between the claimant and the defendant when assessing whether the claimant 
was pursuing a legitimate aim of protection of reputation.  

2840/10 (15 March 2022), paragraph 46-47, where the ECtHR considered that, by virtue of its role in a 
democratic society, the interests of a body of the executive vested with State powers in maintaining a 
good  reputation  essentially  differ  from  both  the  right  to  reputation  of  natural  persons  and  the 
reputational interests of legal entities, private or public, that compete in the marketplace. 

56 Guide on Article 8 of the European Convention on Human Right, URL: 

https://www.echr.coe.int/documents/guide_art_8_eng.pdf (14 September 2021), paragraph 43. 

57 ECtHR, Von Hannover v. Germany (no. 2), Application no. 40660/08 and 60641/08 (7 February 2012). 

58 ECtHR, Axel Springer AG v Germany, Application no. 39954/08 (7 February 2012). 

59  The  full  set  of  criteria  to  be  considered  by  courts  when  balancing  the  two  rights  is  the  following:  “i) 
contribution to a debate of general interest, ii) how well known is the person concerned and what is the 
subject of the report, iii) prior conduct of the person concerned, iv) method of obtaining the information 
and 
the  publication,  vi)  severity  of 
the sanction imposed.”  ECtHR,  Axel  Springer  AG  v  Germany,  Application  no.  39954/08  (7  February 
2012), paragraphs 89-95. 

its veracity,  v)  content,  form  and  consequences  of 

60 ECtHR, OOO Memo v. Russia, Application no. 2840/10 (15 March 2022), paragraph 43. This judgment 

is not yet final. 

18 

 
                                                                                                                                                                            
 
 
The general (public) interest is assessed on a case-by-case basis.61 However, the ECtHR 
has stated that it “ordinarily relates to matters which affect the public to such an extent 
that [the public] may legitimately take an interest in them, which attract its attention or 
which concern it to a significant degree, especially in that they affect the well-being of 
citizens or the life of the community. This is also the case with regard to matters which 
are capable of giving rise to considerable controversy, which concern an important social 
issue,  or  which  involve  a  problem  that  the  public  would  have  an  interest  in  being 
informed  about.”62  On  the  contrary,  the  right  to  privacy  cannot  be  limited  where  an 
action  has  “the  sole  purpose  of  satisfying  the  curiosity  of  a  particular  readership” 
regarding  the  details  of  a  person’s  private  life.63  In  other  words,  unless  actions  of 
journalists or activists demonstrate a public interest component, court proceedings based 
on the right to privacy, in principle cannot be perceived as malign and could not qualify 
as  SLAPP.  The  legislation  and  particularly  the  national  case  law  of  several  Member 
States  (ES,  HR,  SL)  are  heavily  influenced  by  the  case  law  of  the  ECtHR,64  which 
appears  to  result  in  a  certain  level  of  harmonisation  among  Member  States  concerning 
limitations of the right to privacy in favour of the freedom of expression, but differences 
in the precise way these rights are balanced still remain. 

5.1.2  Public interest and liability 

The basic premise of the public interest in the context of liability is that there can be no 
infringement of the rights of others (and thus liability) by an action of a journalist or an 
activist where such action was taken in the public interest.  

61  Previous  examples  where  the  existence  of  a  public  interest  was  recognised  include  a  publication 
concerning information on the medical condition of a candidate for the highest office of State, sporting 
issues, criminal proceedings,  crimes committed etc. ECtHR,  Guide to  Article 10 of the Convention  – 
Freedom  of  expression,  URL:  Guide  on  Article  10  -  Freedom  of  expression  (coe.int)  (22  September 
2021), paragraph 137. 

62  ECtHR,  Satakunnan  Markkinapörssi  Oy  and  Satamedia  Oy  v.  Finland,  Application  no.  931/13, 

paragraph 71. 

63 ECtHR, Aleksey Ovchinnikov v. Russia, no. 24061/04, paragraph 50. 

64  E.g.  Judgments  of  the  Constitutional  Court  of  Croatia  U-III-1876/2018  and  U-III-1898/2018  of  14 
November  2019  and  U-III-2971/2017of  15  October  2020;  Judgements  of  the  Spanish  Constitutional 
Court 27/2020 of 24 February 2020 and 18/2015 of 16 February 2015; Judgement of the Constitutional 
Court of Slovenia Up-349/14-39 of 16 May 2019.  

19 

 
                                                           
 
 
In this context, the most effective method of addressing SLAPP is by means of “public 
interest  exceptions”,  i.e.  exclusion  of  liability  for  potential  monetary  or  moral  harm 
suffered  by  the  plaintiff  when  an  action  was  in  the  public  interest.  The  personal  and 
material  scope  of  such  exceptions  varies  in  different  Member  States.  Moreover,  the 
notion of public interest in provisions containing such exceptions is usually not defined, 
but  rather  assessed  on  a  case-by-case  basis  (IT,  SL,  ES)  and  taking  into  account  the 
relevant national and ECtHR case law.65 

Some Member States provide for this type of “public interest exceptions” in the general 
civil  or  criminal  law  and  in  particular  in  provisions  concerning  the  infringement  of 
personality  rights,  while  others  provide  exceptions  only  in  more  specific  areas  of  law 
such  as  media  law  (HR)66  or  trade  law  (SE)67.  The  notion  of  public  interest  may  be 
included  by  direct  reference  (EE)68  or  by  referring  to  other  circumstances  that  could 
potentially  also  cover  actions  in  the  public  interest.69  In  some  Member  States  where 
concrete reference to the notion public interest is absent in the legislation, the courts have 
introduced  the  notion  of  public  interest  as  a  means  to  exclude  liability  through  the 
relevant  civil  (PT,  PL,  SL)70  or  criminal  (IT,  PT)71  law  jurisprudence,  notably  by 
applying the balancing test and by referring to the criteria developed by the ECtHR. 

65  E.g.  Italian  case  law  has  referred  to  the  notion  of  “public  interest”  in  various  ways  (e.g.  “societal 
relevance”,  “societal interest”), however, in essence, it consists of the reporting of events concerning 
the life of the community and the individuals who are central to it, the knowledge of which is essential 
to the creation of public opinion. Judgment of the Tribunal of Messina of 13 February 1988. 

66 E.g. Article 21(4) of the Croatian Media Act. 

67 E.g. Swedish Law (2018: 558) on Trade Secrets (“Lag (2018:558) om företagshemligheter”), Section 4. 

68 E.g. Estonian Law of Obligations Act (Võlaõigusseadus), Article 1046(2). 

69 E.g. Article 158(3) of the Criminal Code of Slovenia ("Kazenski zakonik") (Insult). 

Article 160(5) of the Criminal Code of Slovenia (Calumny). 

70 E.g. Portuguese Civil Code does not provide exemptions linked to the public interest for the infringement 
of  personality  rights,  however,  the  Supreme  Court  has  clarified  that  a  “relevant  public  interest” 
overrides the right to honour and good name and that thus a legitimate exercise of the right to freedom 
of  expression  and  information  through  the  press  cannot  give  rise  to  civil  liability.  Supreme  Court  of 
Justice of Portugal, Decision of 28 June 2012, ECLI:PT:STJ:2012:3728.07.0TVLSB.L1.S1.9D; Article 
484 of the Portuguese Civil Code (”Código Civil”). 

20 

 
                                                           
 
 
 
 
 
 
In terms of the personal scope of the “public interest exceptions”, some Member States 
make  a  distinction  between  the  right  to  privacy  of  private  and  public  persons  (HU),72 
while the legislation of others does not make such a distinction (EE).73 In the latter cases, 
a  distinction  may  however  be  made  by  the  courts  (ES)74  when  balancing  the  right  to 
privacy  and  freedom  of  expression  inter  alia  by  applying  the  relevant  ECtHR  criteria 
concerning a lawful limitation of a right to privacy of public figures.75 Furthermore, some 
Member  States  provide  additional  protection  to  certain  categories  of  persons  who  are 

  Polish  case  law    confirmed  that  defending  a  justified  interest  of  the  society  can  exclude  the 
unlawfulness  of  an  action  in  civil  cases.  Judgment  of  the  Appellate  Court  in  Warsaw  of  9  February 
2007, VI ACa 960/06. 

71  E.g.  Italian  Cassation  Court  set  three  cumulative  conditions  under  which  the  freedom  of  the  press  to 
report a given fact takes precedence over the privacy of the individual(s) concerned. if these conditions 
are  fulfilled,  publishing  remarks  or  news  of  a  defamatory  nature  is  justified  and  thus  legal:  1)  the 
published news is true, 2) there is a public interest in the news (so-called criterion of pertinence), 3)the 
news  is  reported  in  a  ‘civil’  manner  (so-called  criterion  of  restraint).  Judgments  of  the  Court  of 
Cassation of 18 October 1984, no. 5259 and of 20 February 2014, no. 4068. 

  Polish  case  law  stated  that  acting  in  a  defence  of  a  justified  interest  of  the  society  can  exclude  the 
unlawfulness  of  an  action;  Journalists  can  be  successful  only  if  they  fulfilled  their  duty  of  care  and 
integrity. Judgment of the Appellate Court in Łódź of 11 June 2015, I ACa 1820/14; Judgment of the 
Supreme Court of 10 August 2017, I CSK 21/17. 

  Slovenian case law emphasizes that civil liability may be excluded when actions of a journalist were in 
the  pubic  interest,  subject  to  a  balancing  test.  Judgment  of  the  Higher  Court  in  Ljubljana  of  22  June 
2016, I Cp 488/2016, paragraph 21.  

72 E.g. Section 2:44 (Protection of the personality rights of politically exposed persons) of the Hungarian 

Civil Code. 

73 E.g. Estonian Law of Obligations Act (Võlaõigusseadus), Article 1046(2), cf. footnote 12. 

74  Spanish  Constitution  and  Organic  Law  for  instance  do  not  differentiate  between  private  and  public 
persons, however, the courts do make a distinction and follow the ECtHR caselaw in this respect. Fayos 
Gardó:  ¿Tienen  las  personas  públicas  derecho  a  la  intimidad  y  a  la  propia  imagen?,  URL: 
https://comein.uoc.edu/divulgacio/comein/es/numero35/articles/Article-Antonio-Fayos-Gardo.html  (21 
August 2021). 

75 The ECtHR interpretation of persons who can be considered as public figures is broad and includes e.g. 
heads of state, politicians, high-ranking local civil servants, filmmakers, actors. K. Hughes, The public 
figure doctrine and the right to privacy, URL: THE PUBLIC FIGURE DOCTRINE AND THE RIGHT 
TO PRIVACY | The Cambridge Law Journal | Cambridge Core (9 January 2022). 

21 

 
                                                                                                                                                                            
 
 
generally  considered  to  work  in  the  public  interest  such  as  whistle-blowers  (FR)76  or 
journalists/publishers (HR, ES, SL).77  

5.1.3   Public interest and damages 

Even where a court would also find a journalist or an activist liable for an action which 
was  in  the  public  interest,  the  notion  of  public  interest  may  sometimes  be  relied  on  in 
order to reduce or cancel altogether the damages owed to the plaintiff. 

Irish tort law  for instance provides that the jury  or the court may decide  to  only  award 
nominal damages where a plaintiff has established that that he/she has suffered a breach 
of  a  legal  right  but  has  not  suffered  a  loss,  while  contemptuous  damages  are  awarded 
where  a court accepts  that the plaintiff has suffered a wrong, but  his/her  behaviour has 
been such that the Court signals its disapproval of the conduct.78  

Differently, the legislation of most other Member States does not provide for a de iure or 
de  facto  cancellation  of  damages,79  but  rather  provides  that  a  calculation  of  damages 
should  take  into  account  several  factors  and  concrete  circumstances  of  each  case  (DE, 
SL, ES). In this context, acting in the public interest may be considered as a mitigating 

76  E.g.  Article  122-9  of  the  French  Penal  Code  ("Code  pénal")  provides  a  codified  defence  for  whistle 
blowers,  against  accusations  of  defamation,  breach  of  privacy  etc.  and  excludes  civil  and  criminal 
liability. 

77 E.g. Article 21(4) of the Croatian Media Act, cf. footnote 7. 

  The  Spanish  Constitutional  Court  has  emphasized  that  the  constitutional  protection  of  the  freedom  of 
expression  reaches  its  highest  level  when  it  is  exercised  by  information  professionals  through  the 
institutionalised  vehicle  for  the  formation  of  public  opinion,  which  is  the  press,  understood  in  its 
broadest sense. Judgment of the Spanish Constitutional Court of 6 June 1990, no. 105/1990, point 5.  

  Slovenian courts emphasized that freedom of expression under Article 39(1) of the Constitution “as a 
special  aspect,  protects  the  freedom  of  journalistic  expression,  which  not  only  guarantees  individuals 
(journalistic) rights if it is printed in other public media, but also exercises the democratic right of the 
public to be informed about matters of public importance.” Judgment of the Constitutional Court of the 
Republic of Slovenia of 16 May 2019, Up-349/14-39, paragraph 8. 

78  Paul  McMahon:  Defamation  Damages,  URL:  http://mcmahonsolicitors.ie/defamation-damages/  (28 

August 2021).  

79  E.g.  the  Spanish  Supreme  Court  overturned  and  modified  previous  lower-court  rulings  concerning 
compensation  for  damage  to  honour,  which  had  that  held  the  publication  of  a  court  judgment  was 
sufficient,  and  instead  ordered  (a  modest)  compensation,  which  could  make  good  the  moral  damage 
suffered. Decision the Supreme Court of 25 September, no. 872/2008. 

22 

 
                                                           
 
 
element relevant when the courts are determining the amount of non-pecuniary damages, 
i.e. within their discretionary powers, the courts may decide to award a lower amount of 
damages when an action was in the public interest.80  

Finally,  it  should  be  noted  that  the  amount  of  damages  awarded,  particularly  for 
infringement of personality rights, was scrutinised several times by the ECtHR, including 
in  cases  involving  Member  States.81  Conscious  of  the  potential  chilling  effect  that 
excessive damages may  have  on the freedom  of expression, the ECtHR emphasized on 
several  occasions  that  damages  for  infringement  of  personality  rights  must  bear  a 
reasonable relationship of proportionality to the injury to reputation suffered and cannot 
be  excessive  in  that  they  would  go  beyond  merely  compensating  the  non-pecuniary 
damage suffered (e.g. punitive damages).82  

5.1.4   Conclusion 

The  analysis  shows  that  the  legislation  in  Member  States  provides  for  some  general 
safeguards  based  on  which  a  SLAPP  case  may  end  favourably  for  a  journalist  or  an 
activist who was being sued for actions that were in the public interest. In this regard, the 
most reliable method of addressing SLAPP would appear to be through codified “public 

80 E.g. Article 179(2) of the Slovenian Obligations Code ("Obligacijski zakonik;Judgment of Higher Court 

of Koper of 14 May 2019, I Cp 26/2019, paragraph 16. 

In Germany, in order to award non-pecuniary for personality infringements, the infringement must be of 
grave and serious character. The judges in principle have  a  discretion in determining the amount,  but 
have to take into account inter alia defendant's motives (e.g. acting in a public interest and not to profit 
economically).  Additionally,  the  damages  should  not  impair  the  freedom  of  press  and  in  particular 
should  not  threaten  the  economic  existence  of  the  publisher  concerned.  Ulrich  Magnus:  Damages  for 
Non-Pecuniary  Loss  in  German  Contract  and  Tort  Law,  The  Chinese  Journal  of  Comparative  Law, 
Volume 3, Issue 2, October 2015, page 301. 

In  France,  despite  a  liberal  approach  to  non-pecuniary  damages  in  general,  the  damages  awarded  for 
infringements of personality rights have historically been low. Jean-Sébastien Borghetti: Non-Pecuniary 
Damages in France, The Chinese Journal of Comparative Law, Volume 3, Issue 2, October 2015, Pages 
284.. 

81  E.g.  ECtHR  recently  held  that  Croatia  has  violated  a  publisher’s  right  to  freedom  of  expression  by 
awarding excessive damages to a judge who was subject of value judgments injurious to his reputation 
in a  weekly  magazine.  After  national courts ruled that the  articles exceeded the bounds  of acceptable 
criticism, the ECtHR, conscious of a special role of the judiciary, held that the journalist was acting in 
the public interest and the damages were excessive which could discourage open discussion of public 
concern. ECtHR, Narodni List D.D. v. Croatia (application no. 2782/12), paragraphs 70-72. 

82 ECtHR, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, paragraph 49. 

23 

 
                                                           
 
 
  
  
interest  exceptions”  that  would  refer  directly  to  the  public  interest  and  would  cover  all 
types  of  damages.  Such  provisions  that  would  ensure  a  clear  exemption  of  civil  and/or 
criminal  liability,  however,  currently  do  not  appear  to  exist.  Article  1046(2)  of  the 
Estonian  Law of  Obligations  Act  could  serve as  an example of such  a targeted “public 
interest  exception”,  however,  in  its  current  version  it  covers  only  infringements  of 
personality rights. Even when the legislation does not provide specific exceptions linked 
to  the public interest  nature of an  action, the public interest  is  frequently  considered  as 
part  of  the  balancing  test  based  on  constitutional  and  ECHR  provisions.  Acting  in  the 
public  interest,  linked  in  particular  to  the  freedom  of  expression,  may  justify  the 
limitation  of  other  rights  and  thus  result  in  a  conclusion  that  an  action  subject  of  a 
SLAPP  case  was  lawful.  The  absence  of  codified  “public  interest  exceptions”  may  be 
perceived as  providing less legal  certainty for journalists and activists, however, due to 
the extensive and constantly developing case law of the ECtHR, this may prove to be less 
critical.  In  this  context,  the  analysis  has  demonstrated  that  the  case  law  in  different 
Member  States,  particularly  concerning  freedom  of  expression  and  right  to  privacy, 
follows  the  criteria  set  by  the  ECtHR  and  that  there  even  exists  a  certain  level  of 
harmonisation among Member States in this regard. The notion of public interest may be 
also relied on when determining the amount of damages, however, with the exception of 
Ireland, acting in public interest appears to only justify the reduction of damages, while 
we  have  not  found  provisions  that  would  allow  a  cancellation  of  damages  altogether 
when a journalist or an activist would be found liable in a SLAPP case. Finally, it should 
be  noted  that  the  above  analysis  mostly  considered  the  notion  of  public  interest  in  the 
context of freedom of expression and right to privacy (personality rights), while it cannot 
be excluded that the notion of public interest in other contexts where SLAPP may exist 
would be of a limited use (e.g tax or IP law).  

It needs to be underlined, however, that at present in Member States there are no SLAPP-
specific  safeguards  available,  addressing  the  situation  that  harm  is  done  not  (only) 
through  potentially  winning  a  court  case,  but  (primarily)  through  entangling  the 
defendant in a costly and exhaustive court case even though that case will be lost in the 
end. 

24 

 
5.2   Costs  

The costs in civil proceedings83 represent an important aspect of SLAPP, since one of the 
aims  of  SLAPP  is  to  drain  the  financial  resources  of  SLAPP  targets  and  claiming 
excessively  high  amounts  in  damages  is  a  typical  feature  of  SLAPP,  and  the  costs  of 
proceedings (both court fees and lawyers’ fees) are often tied to the amount of the claim. 
The  financial  burden  linked  to  legal  procedures  is  an  important  factor  that  contributes 
significantly to their chilling effect.  

On  the  other  hand,  efficient  cost  rules  are  also  a  crucial  deterrent  factor,  preventing 
claimants from introducing abusive litigation. This aspect has recently also been stressed 
by  Advocate  General  Hogan  in  his  Opinion  in  the  pending  case  C-251/20  where  he 
explicitly addresses SLAPP cases and states that “the existing rules in the Member States 
relating to the reimbursement of legal costs are often insufficiently rigorous with regard 
to  the  obligation  of  the  unsuccessful  party  to  compensate  the  successful  party  for  the 
damage caused, as the case may be, either by the action or by the fact of having abusively 
resisted  the  applicant’s  claims.  Indeed,  these  rules  do  not  always  take  into  account 
sufficiently the indirect costs generated by the management of a procedure (in particular 
the  costs  of  hardship  caused  by  the  litigation),  although  in  practice  those  costs  can  be 
significant, both economically and non-materially. If those costs were systematically and 
better  compensated,  in  particular  in  the  case  of  abuse  of  process,  applicants  would  be 
dissuaded from abusing the mosaic principle, since this would expose them to the risk, in 
the event that they are unsuccessful in their claim, of having to pay significant damages 
to the defendant.” 

The costs in civil proceedings are regulated differently in Member States, in particular in 
relation  to  the  costs  that  are  reimbursed  to  the  winning  party.  Annex  4  provides  an 
overview over the costs rules applicable in the Member States. 

It  results  from  this  overview  that  in  most  Member  States  the  legislation  expressly 
provides that the losing party covers all or part of the costs incurred by the wining party, 
i.e. the 'loser pays’ principle. It appears that some kind of the loser pays principle exists 
in all Member States with the exception of Czechia, Slovakia, Ireland, and Luxemburg. 
Even in those jurisdictions, the losing party may be required to cover the costs incurred 
by the winning party, which is subject to the court’s discretion, but in principle awarded. 

83 The summary accompanies the table containing information concerning the costs in civil proceedings in 
each Member State based on the data obtained from the European e-Justice Portal: European e-Justice 
Portal - Costs (europa.eu) (21 December 2021). 

25 

 
                                                           
 
 
Luxemburg  is  an  exception  in  that  the  winning  party  in  principle  has  to  cover  its  own 
costs. The judge may exceptionally and on express request order the losing party to pay 
to the other party a procedural indemnity, however, the amount is often symbolic. 

The  scope  of  the  ‘loser  pays’  principle  may  depend  on  the  definition  (recognition)  of 
costs in civil procedure in a particular Member State. In several Member States, the costs 
that  can  be  reimbursed  are  in  principle  limited  to  the  costs  considered  as  necessary  or 
reasonable.84 Furthermore, the legislation in several Member States provides for different 
situations when the courts may derogate from the basic rule (e.g. minor defeat, conduct 
of the parties) and any event the courts appear to be offered a relatively wide margin of 
discretion  when  deciding  on  the  costs.  The  ‘loser  pays’  principle  can  also  be  applied 
proportionally, i.e. according to the partial success of the party.85 

In the majority of Member States, the plaintiffs in civil proceedings are usually required 
to pay a certain amount of court fees/costs in the very beginning of the proceedings as a 
prerequisite  to  file  an  application.  In  Finland,  the  costs  are  paid  at  the  end  of  the 
proceedings,  which is  also the case in  some other Member States, but  only for specific 
proceedings  (e.g.  social  matter  disputes  before  first  instance  courts  in  Slovenia).  The 
court fees are either set as a flat fee or according to the value of the case.  

In addition to the court fees in the beginning of the proceedings, a variety of other costs 
may be incurred by the parties in the course of the proceedings. These costs depend on 
the  Member  State,  however,  in  most  Member  States  include  the  fees  of  experts, 
translators, and interpreters, while depending on a particular jurisdiction also for costs of 
notifications, the copy, certificate rights  (IT), witness  expenses, travel  costs (SL), costs 
incurred in serving a document abroad (EE) etc. These costs are mostly paid in advance 
of a particular action and may be reimbursed at the end of the proceedings. The costs are 
in  some  instances  covered  by  the  court  and  in  others  by  the  parties  (by  the  party 
requesting a certain action or shared by both parties). The legislation is country-specific 
in regard to each type of costs. For instance, in Czechia the court pays the fees of experts, 
translators  and  interpreters  it  appoints,  while  in  Estonia  the  fees  charged  by  experts, 
interpreters  and  translators  are  to  be  paid  in  advance  by  the  party  who  submitted  the 
application resulting in the costs. 

84 E.g. Austria, Croatia, Denmark, Estonia, Italy, Poland, Romania, Slovenia, Sweden. 

85 E.g. Croatia, Latvia, Portugal, Slovenia.  

26 

 
                                                           
 
 
The costs in civil proceedings also include the costs of legal representation, which may 
also be covered by the ‘loser pays’ principle.86 Where the costs of legal representation are 
borne  by  the  losing  party,  the  (maximum)  tariff  is  usually  set,  so  as  to  avoid 
disproportionate costs. However, it should be noted that the lawyers’ fees can in principle 
be agreed outside of this tariff, i.e. the real cost of the legal representation can be much 
higher than the costs reimbursed to the winning party at the end of the proceedings.87 

Finally,  the  reimbursement  of  costs  according  to  the  ‘loser  pays’  principle  may  be 
ordered  automatically  (ex  officio)  or  only  at  the  request  of  a  party.  In  some  Member 
States the costs are awarded already by the final decision, while in others the court issues 
a separate award (order) concerning the costs.  

In accordance with the above, SLAPP targets are generally entitled to a compensation of 
costs they incurred in the course of the proceedings based on the ‘loser pays’ principle. 
However,  there  are  three  main  problems  in  relation  to  the  practical  application  of  this 
rule. First,  usually under the loser pays rule not  all costs will be reimbursed. Only in  a 
few  Member  States  are  legal  fees  fully  recoverable.  In  others  there  is  a  statutory  fee 
system,  only  part  of  the  costs  are  to  be  paid  by  the  winning  party,  or  the  court  has  a 
discretion  to  limit  the  recoverable  costs.88  Second,  there  are  limitations  as  to  what  are 
considered procedural costs and in particular whether costs incurred prior to proceedings 
are  recoverable,  including  those  in  case  a  settlement  is  reached  (the  latter  is  not 
customary  in  SLAPP  cases).  Third,  usually  costs  are  only  reimbursed  after  the 
proceedings  are concluded and separate steps proceedings may be required to  calculate 
the  costs  and  to  get  these  actually  reimbursed.  This  may  take  a  significant  amount  of 
time.  These  three  issues  make  the  reimbursement  of  cost  rules  often  problematic  in 
SLAPP cases.  

5.3 

Non-legislative measures to tackle SLAPP 

The  consultation  on  the  European  Democracy  Action  Plan  showed  that  the  SLAPP 
phenomenon  is  still  relatively  unknown  in  the  EU  -  only  26  percent  of  respondents 
indicated  being  familiar  with  the  term  SLAPP.  Knowledge  was  much  higher  among 
academics, NGOs, national authorities or business associations. Nonetheless, awareness 

86 E.g. Sweden, Slovenia, Romania, Croatia, the Netherlands.  

87 E.g. Belgium, Slovenia, Italy, France, Greece, Croatia, Czechia.  

88 See also the EU Justice Scoreboard 2021, figure 26. 

27 

 
                                                           
 
 
on  SLAPP  and  on  how  to  counter  SLAPP  could  be  higher,  including  among  the 
judiciary.  

Experts and civil society also have signalled the importance of providing further trainings 
on  SLAPP  for  judges,  legal  practitioners,  journalists  and  other  media  professionals,  as 
well  as  for  human  rights  defenders.89  In  this  vein,  the  proposed  anti-SLAPP  Model 
Directive,  which  is  a  civil  society  model  law,  includes  a  reference  to  training  in  its 
Article 25.90 The Council of Europe has also implemented trainings for judges (e.g. in the 
framework  of  the  Horizontal  Facility  for  the  Western  Balkans  and  Turkey  II91).  This 
results  in  judges  being  educated  about  the  European  standards  set  by  the  European 
Convention  on  Human  Rights  and  the  ECtHR,  in  particular  in  the  areas  of  media  and 
freedom of expression, as promoted by the Communication ‘Ensuring justice in the EU – 
a European judicial training strategy for 2021-2024’92. The use of existing materials and 
training practices such as the ones promoted on the E-Justice portal, the UNESCO Global 
Toolkit for Judicial Act and the Council of Europe’s HELP (Human Rights Education for 
Legal Professionals) online courses should be encouraged. 

SLAPP  targets  often  have  difficulties  in  finding  relevant  information  to  organise  their 
defence  and  more  generally  legal  assistance  on  how  to  address  the  legal  proceedings. 
Also,  the  threat  of  legal  proceedings  and  the  potential  legal  consequences  add  to  the 
distress of having to find a lawyer, facing charges in a court, etc., especially for SLAPP 
targets  that  are  not  part  of  resourceful  organisations  willing  to  assist  them.  At  times 
simply finding information on the SLAPP phenomenon is challenging for targets.  

89 Ní Mhainín, J., Breaking the Silence.  A new report on the legal measures that will give journalists back 
https://www.indexoncensorship.org/wp-
2020, 

on  Censorship, 

their 
content/uploads/2020/09/breaking-the-silence.pdf (24/08/2021) 

voices, 

Index 

p.6. 

90  In  2020,  after  consulting  with  legal  practitioners,  scholars,  and  SLAPP  targets,  a  coalition  of  NGOs 
commissioned  the  draft  of  an  anti-SLAPP  Directive  (Ravo,  L.M.,  Borg-Barthet,  J.,  Kramer  X., 
Protecting  Public  Watchdogs  across  the  EU:  A  Proposal  for  an  EU  Anti-SLAPP  Law,  2020,  p.47. 
https://www.article19.org/wp-content/uploads/2020/12/Anti_SLAPP_Model_Directive-2-1.pdf 
[24/08/2021]). Article 25 of the model Directive concerns training and awareness raising.  

91  Through  the  Horizontal  Facility  for  the  Western  Balkans  and  Turkey  II’,  a  co-operation  initiative  co-
funded  by  the  EU,  the  Council  of  Europe  has  carried  out  trainings  for  judges  and  prosecutors  on 
freedom of expression and freedom of the media, which included the topic of SLAPP. Link:  JUFREX: 
two day training for judges and prosecutors on defamation and protection of reputation 

92 COM/2020/713 final 

28 

 
                                                           
 
 
 
Finally, there is a lack of systematic monitoring of SLAPP cases in the European Union. 
The Platform established in 2015 by the Council of Europe to promote the protection of 
journalism  and  safety  of  journalists93  has  contributed  to  create  some  transparency  and 
raise  awareness  for  the  issue,  as  has  the  Media  Pluralism  Monitor  (that  feeds  into  the 
Rule  of  Law  reports).  However,  information  available  on  the  Platform  on  SLAPP  only 
covers  cases  against  journalists  (i.e.,  it  does  not  include  cases  against  human  rights 
defenders) and does not  provide details  on the entire proceeding, but  rather flash  alerts 
that reflect only disparate moments of the proceeding and which do not always contain 
the  same  type  of  data  to  allow  for  a  systematic  aggregation.  It  is  therefore  not  a 
monitoring mechanism. In addition, more granular data on the length of the proceedings, 
judicial  costs  and  the  overall  evolution  of  a  SLAPP  case  that  could  be  aggregated 
together  with  other  relevant  information  is  not  available.  The  lack  of  systematic 
monitoring  poses  a  challenge  for  targets,  legal  professionals  and  authorities  to  obtain 
sufficient information to monitor and tackle the phenomenon. 

6.  WHAT IS THE CHOSEN POLICY OPTION? 

As  shown  above,  the  existing  procedural  safeguards  in  the  Member  States  are  not 
sufficient  to  tackle  SLAPP,  and  protection  by  substantive  safeguards  is  inadequate. 
Legislative action is therefore needed for the following reasons: 

  Member States do not have specific safeguards against SLAPP, which is a specific, 
particularly  abusive  and  growing  phenomenon  threatening  the  basics  of  our 
democracy.  This  conclusion  emerged  clearly  from  the  technical  workshop  with 
Member States held on 26 October 2021 as well as from the dedicated consultation of 
national judges; 

  The existing general safeguards in Member States as described above in Section 5 are 
not  fit  for  purpose  of  dealing  with  SLAPP  cases  swiftly  and  expediently  and  more 
generally  preventing  the  harmful  phenomenon  of  SLAPP  growing  roots  in  the  EU. 
Legal  clarity  and  certainty  is  needed,  in  particular  to  provide  proper  protection  to 
targets of SLAPP; 

  Evidence  on  the  increase  of  SLAPP  shows  that  existing  deterrent/protective 

measures, if any, do not currently prevent or discourage SLAPP; 

  Due to the specific problems caused by cross-border SLAPP and SLAPP from third 

countries, uniform EU action is needed to tackle the phenomenon.  

93 https://fom.coe.int/  

29 

 
                                                           
 
 
Tackling  SLAPP  efficiently  requires  a  combination  of  legislative  and  non-legislative 
measures, in  order to  address  the various aspects in  a comprehensive package and take 
account of the cross-border and national dimensions.  

The  aim  of  a  legislative  instrument  is  to  provide  targeted  civil  procedural  safeguards 
against SLAPP in cross-border situations, e.g. through early dismissal, covering the cost 
implications  and  allowing  third-party  interventions  in  proceedings  to  support  targets  of 
SLAPP. It contains a set of general rules enabling courts to dismiss abusive SLAPP cases 
at a very early stage of proceedings, before they can produce their most harmful effects. 
This  will  also  help  deter  parties  from  bringing  such  cases  in  the  first  place,  as  the 
threatening  effect  of  lengthy  and  expensive  proceedings  would  be  diminished.  Specific 
protection would be provided to EU targets against SLAPP from third countries.  

The proposed personal and material scope of the Directive is wide: it aims to protect any 
natural  or  legal  person  who  is  targeted  with  manifestly  unfounded  and  abusive  court 
proceedings due to their engagement in public participation on matters of public interest. 
The  objective  of  the  wide  personal  scope  is  to  ensure  that  the  protection  covers  all 
potential  targets  of  SLAPP,  including  secondary  targets.  Early  dismissal  of  manifestly 
unfounded court proceedings  upon the application of the defendant  is  a  key  element  of 
the  proposed  Directive.  This  would  facilitate  the  swift  termination  of  abusive 
proceedings,  thus  preventing  further  adverse  consequences  for  the  defendant  resulting 
from the need to invest monetary and other resources in litigation. Other elements linked 
to early dismissal are expediency in proceedings, the burden of proof for the claimant to 
show  that  the  case  is  not  manifestly  unfounded  and  the  right  for  non-governmental 
organisations  to  intervene  to  support  the  defendant/target  of  SLAPP.  The  second  key 
element consists of the remedies against abusive court proceedings. This involves award 
of  costs  and  compensation  of  damages  to  the  defendant  who  has  been  targeted  with  a 
SLAPP. In addition, the court are given the possibility to impose penalties on claimants 
who have brought abusive court proceedings against public participation, with the aim of 
deterring  potential  claimants  from  initiating  abusive  court  proceedings  against  public 
participation. The third key element would be to provide protection to SLAPP targets in 
the EU against SLAPP from third countries.  

Art.  81(2)(f)  TFEU  allows  the  Directive  to  cover  only  cases  with  “cross-border 
implications”.  The  Commission  has  opted  to  interpret  the  concept  of  “cross-border 
implications” in a broad sense since SLAPP cases often do not stop at borders.  In order 
to increase legal certainty, the concept would cover also cases where the court seized and 
the parties are located and domiciled in the same Member State where a) the act of public 
participation  against  which  court  proceedings  are  initiated  concerns  a  matter  of  public 
interest  that  is  relevant  to  more  than  one  Member  State;  b)  the  claimant  or  associated 
entities  have  initiated  concurrent  or  previous  court  proceedings  against  the  same  or 
associated defendants in another Member State.  

Whilst  SLAPP  can  be  both  domestic  and  cross-border,  the  cross-border  cases  are 
particularly complex and their speedy dismissal is even more important for preventing a 
chilling effect. A cross-border dimension of SLAPP makes such cases significantly more 

30 

 
challenging  to  defendants,  who  may  need  to  fight  proceedings  brought  in  multiple 
jurisdictions  at  the  same  time.  This  results  in  additional  costs  and  burdens  with  even 
more adverse consequences. 

Currently  there  are  very  limited  procedural  safeguards  against  SLAPP,  they  are  not 
SLAPP-specific  and  the  situation  varies  between  Member  States.  Cross-border 
safeguards would therefore also provide a model for Member States on how to efficiently 
fight  against  SLAPP  at  national  level.  Since  the  Member  States  need  to  transpose  the 
Directive into their national  civil  law, it  also  makes  sense, legally speaking, to provide 
the same safeguards for domestic and cross-border cases.  

In  a cross-border context,  it is  important  to  explore how to  best  protect  EU journalists, 
human rights defenders and others from SLAPP filed in third countries. Protection from 
third-country  SLAPP  would  involve  refusal  to  recognize  and  enforce  third-country 
judgements  against  EU  journalists  and  human  rights  defenders  on  grounds  of  public 
policy  in  EU  Member  States,  when  the  judgement  is  based  on  SLAPP.  The  second 
remedy  against  third-country  SLAPP  would  allow  the  defendant  (the  EU  journalist, 
human  rights  defender  or  other)  who  has  suffered  harm  as  a  result  of  abusive  third-
country  court  proceedings  against  public  participation  to  seek  full  compensation  of 
damages in an EU court against a third-country claimant. 

The relevant rules on jurisdiction and applicable law (set out respectively in the Brussels 
Ia Recast Regulation94 and the Rome II Regulation95) will be assessed at a later stage as 
part of the ongoing evaluations of these Regulations and, if deemed appropriate, may be 
reviewed. As a first step, a legal study on the Rome II Regulation  on law applicable to 
non-contractual obligations has been published. This study looks, among other issues, at 
SLAPP-specific  issues  related  to  applicable  law,  in  particular  at  the  current  exclusion 
from the Regulation’s scope of defamation claims. Another legal study on the Brussels Ia 
Regulation has been launched. Therefore, the anti-SLAPP initiative does not cover these 
elements. 

The preparatory work as well as the discussions in the expert group  against SLAPP set 
up  by  the  Commission  and  with  stakeholders  suggest  that  a  legislative  approach  alone, 

94 Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil 

and commercial matters, OJ L 351, 20.12.2012, p. 1. 

95 Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199, 

31.7.2007, p. 40. 

31 

 
                                                           
 
 
especially since it would target only civil procedural safeguards against SLAPP in cross-
border situations, may not be sufficient to protect targets of SLAPP in the most effective 
manner.  Non-legislative  measures  would  complement  the  legislative  instrument  and 
apply  also  to  national  cases  and  criminal  and  administrative  law  relevant  to  SLAPP.  It 
will focus on aspects such as training, awareness raising, support and monitoring. 

First,  Member  States  are  recommended  to  review  their  applicable  legal  frameworks  to 
provide  for  the  necessary  safeguards  to  address  SLAPP  in  full  respect  of  fundamental 
rights including the right to freedom of expression, the right to access to justice and the 
right to the protection of personal data and democratic values.  

Second, as judiciary and judicial staff as well as other legal professionals (e.g. lawyers) 
play  a  central  role  in  an  effective  fight  against  SLAPP,  Member  States  should  support 
training  opportunities  on  unfounded  and  abusive  court  proceedings  against  public 
participation for legal professionals such as judiciary and judicial staff at all court levels, 
lawyers,  covering  in  particular  the  Charter  and  the  European  Convention  on  Human 
Rights as relevant in the SLAPP context. In addition, training should cover the case law 
of the ECtHR on ensuring freedom of expression and information with other fundamental 
rights.  The  level  of  awareness  and  knowledge  of  lawyers  is  important,  in  particular  of 
lawyers who may have to defend a SLAPP target in court. To strengthen their capacity to 
deal with SLAPP, legal trainings should also be made available to journalists and other 
media  professionals  and  human  rights  defenders.  Adequate  training  will  contribute 
significantly  to  informing  journalists  and  human  rights  defenders  of  their  rights  and 
obligations,  thus  helping  them  to  take  the  necessary  steps  to  protect  themselves  from 
possible legal action. 

Third,  despite  its  prevalence  in  the  EU,  the  SLAPP  phenomenon,  as  well  as  the  term 
itself,  is  still  unknown  to  most  citizens.  Awareness  raising  efforts  towards  citizens  and 
specific  groups should provide a clear overview of the defence capabilities available to 
them  under  their  national  framework  should  they  face  an  unfounded  and  abusive  court 
proceeding against public participation and how to effectively use them. 

Fourth, SLAPP targets encounter difficulties in finding relevant information to organise 
their  defence  and  more  generally  legal  assistance  on  how  to  address  the  situation. 
Member  States  are  therefore  recommended  to  ensure  that  targets  of  unfounded  and 
abusive  court  proceedings  against  public  participation  have  access  to  individual  and 
independent support. To that end, Member States should also establish a focal point that 
gathers and shares information on all organisations that provide guidance and support for 
targets of unfounded and abusive court proceedings against public participation. 

Fifth,  an  effective  approach  to  counter  SLAPP  would  require  a  more  systematic 
monitoring  of  and  data  collection  on  SLAPP  (including  self-reporting).  Member  States 
should, taking into account their institutional arrangements on judicial statistics, entrust 
one  or  more  authorities  to  collect  and  report  to  the  Commission  in  full  respect  of  data 
protection requirements, data on unfounded and abusive court proceedings against public 
participation initiated in their jurisdiction. To ease the collection of data, the authorities 

32 

 
entrusted  to  collect  and  report  data  can  establish  contact  points  in  order  for  judicial 
authorities,  professional  organisations,  non-governmental  organisations,  human  rights 
defenders,  journalists  and  other  stakeholders  to  share  data  on  unfounded  and  abusive 
court proceedings against public participation. There may also be existing structures that 
can  support  the  collection  of  data.  For  example,  National  Human  Rights  Institutions, 
where  established,  may  play  an  important  role  as  independent  entities  that  are  able  to 
collect  data  on  and  report  SLAPP.  Other  entities  such  as  ombudspersons’  offices, 
equality bodies, or competent authorities such as those designated under the Directive on 
the  protection  of  persons  reporting  on  breaches  of  Union  law96  may  also  be  relevant. 
National  focal  points  providing  an  overview  of  support  resources  and  the  entities  or 
authorities entrusted to collect and report data could be situated in the same organisation, 
taking into account the requirements and criteria described in this Recommendation. 

The data collected should include sufficient information for authorities and other relevant 
stakeholders  to  quantify  and  better  understand  the  phenomenon  of  SLAPP  including  in 
view  of  providing  the  necessary  support.  This  includes  for  example  the  duration  of 
proceedings.  The  data  collected  and  reported  should  include:  the  number  of  SLAPP, 
initiated in the relevant year; the number of SLAPP dismissed early in the relevant year, 
both  dismissed  on  merits  and  for  procedural  reasons;  the  type  of  defendant  (e.g. 
journalist,  rights  defender,  press  outlet);  the  type  of  plaintiff  (e.g.  politician,  private 
person,  company);  the  statement  or  activity  related  to  public  participation  that  led  to 
court proceedings; the initial damages requested by the plaintiff; the employed legal basis 
by  the  plaintiff;  the  length  of  the  proceedings,  including  all  instances;  any  identified 
cross-border element; and where available, other relevant data including the judicial costs 
of  the  proceedings;  as  relevant,  the  historical  background  of  the  case,  the  law  firms 
representing the plaintiff. 

The initiative (including both legislative and non-legislative measures) needs to preserve 
all parties’ fundamental  rights,  e.g. data protection and privacy rights,  and access  to  an 
effective remedy and a fair trial. 

As  necessary,  the  EU  expert  group  against  SLAPP  established  by  the  Commission97 
could support the development across Member States of comparable criteria that can be 

96  Directive  (EU)  2019/1937  on  the  protection  of  persons  who  report  breaches  of  Union  law,  OJ  L  305, 

26.11.2019, p. 17. 

97 Register of Commission expert groups and other similar entities (europa.eu) 

33 

 
                                                           
 
 
easily  applied  by  the  authorities  entrusted  to  collect  and  report  data  on  manifestly 
unfounded or abusive court proceedings against public participation.  

The  EU  expert  group  against  SLAPP  supports  the  exchange  and  dissemination  of 
practice  and  knowledge  among  practitioners  on  SLAPP  related  issues.  It  could  provide 
among  others  technical  assistance  to  authorities  in  setting  up  focal  points,  developing 
training material and organising legal assistance. 

7.  EXPECTED IMPACTS 

Because the Commission is proposing a carefully targeted combination of legislative and 
non-legislative  measures,  there  are  no  significant  negative  impacts  for  citizens  or 
businesses to be expected.  

The application of the proposed Directive will, however, have two main impacts for the 
specific group of SLAPP targets, namely to speed up litigation in SLAPP cases, and to 
reduce costs and burdens for SLAPP targets which can be expected to be significant.  

Firstly,  where  a  claim  is  dismissed  early  as  manifestly  unfounded  in  an  accelerated 
procedure,  it  should  be  faster  than  dismissal  in  a  normal  procedure  in  accordance  with 
national law.  

Secondly,  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  cost  rule  is  of  significant  importance  for  SLAPP  targets  because  under  otherwise 
applicable  national  law,  they  are  often  not  reimbursed  all  their  costs,  in  particular  with 
regard to lawyers´ fees (see above under 5.2). That this is a problematic issue in general 
(outside  the  specific  context  of  SLAPP)  is  highlighted  by  the  fact  that  a  large  majority 
(69 %) of respondents  of an  evaluation  study of  national  procedural  laws and practices 
considered  the  (non-)recoverability  of  legal  costs  to  be  a  significant  or  very  significant 
impediment/obstacle to cross-border litigation.98 

98  An  evaluation  study  of  national  procedural  laws  and  practices  in  terms  of  their  impact  on  the  free 
circulation  of  judgments  and  on  the  equivalence  and  effectiveness  of  the  procedural  protection  of 
consumers under EU consumer law, Report prepared by a Consortium of European universities led by the 
MPI  Luxembourg 
the  European  Commission, 
JUST/2014/RCON/PR/CIVI/0082, p. 136. 

for  Procedural  Law  as  commissioned  by 

34 

 
 
                                                           
 
 
Furthermore, procedural savings can be expected for national justice systems due to the 
shortening of the duration of judicial proceedings in SLAPP cases. Successful deterrence 
of SLAPP would free court systems of the burden of dealing with manifestly unfounded 
and abusive proceedings allowing to  focus their resources on meritorious (at  least  non-
abusive) cases for the benefit of everyone. 

The proposed Directive  has  an impact  on fundamental  rights,  in  particular on access  to 
justice because it provides for an early dismissal of claims and rules on costs, damages 
and  penalties  which  normally  do  not  apply.  The  procedural  safeguards  are  carefully 
targeted  and  leave  the  court  sufficient  discretion  in  individual  cases  to  maintain  the 
delicate balance between speedy dismissal of manifestly unfounded claims and effective 
access  to  justice.  In  particular,  the  early  dismissal  of  a  case  is  permitted  only  in  cases 
where  the  court  is  in  a  position  to  come  to  the  conclusion  very  early  on  that  they  are 
manifestly  unfounded;  in  such  cases  access  to  justice  is  not  limited  but  just  effectively 
dealt with in view of an assessment on the merits. Furthermore, also the foreseen right to 
appeal against judgments dismissing claims early is intended to maintain the guarantee of 
access  to  justice.  In  this  regard,  it  should  be  borne  in  mind  that  the  aim  of  an  abusive 
court  proceeding  is  to  harass  and  intimidate  the  defendant  and  not  to  gain  access  to 
justice.  Therefore,  safeguards  provided  to  the  defendant  do  not  deprive  the  claimant  of 
access  to  justice that the claimant is  anyway not seeking in  the first  place. Also on the 
basis  of  the  case  law  of  the  European  Court  of  Human  Rights,  the  proposed  Directive 
balances  access  to  justice  as  guaranteed  in  Article  47  of  the  Charter  of  Fundamental 
Rights  of  the  European  Union  and  personality/privacy  rights  with  the  protection  of 
freedom of expression and information. 

The proposed Directive will also have an impact on the legal systems of Member States 
because  their  codes  of  civil  procedure  will  have  to  be  aligned  with  the  Directive.  This 
impact will, however, be limited since it concerns specifically targeted safeguards only. 

Soft-law  measures  addressing  SLAPP  face  the  barrier  of  being  non-compulsory. 
Addressing the decriminalisation of some activities may be difficult to achieve, requiring 
both  substantive  legal  changes  and  political  decisions.  Such  reform  processes  may  be 
lengthy and could also face opposition at national level. Implementation costs of training, 
awareness-raising  and  support  measures  would  otherwise  likely  be  minor  as  synergies 
will be exploited. Monitoring measures are not  expected to  impose significant  costs on 
national  administrations  as  they  will  be  able  to  rely  on  existing  institutions  and 
infrastructure, collect data from a variety of stakeholders and profit from synergies with 
existing  instruments  in  the  area  of  rule  of  law  and  protection  of  fundamental  rights. 
Support  will  be  provided  by  the  Commission  to  ease  the  process  of  monitoring  by 
developing templates. 

35 

 
Annex 1: Procedural information 

1.  LEAD DG, DeCIDE PLANNING/CWP REFERENCES 

Lead DG: DG Justice 

Planning reference: PLAN/2021/11950 (Directive) and PLAN/2021/11951 
(Recommendation).  

2.  EVIDENCE AND SOURCES  

This  analytical  Commission  staff  working  document  accompanying  the  initiative 
compiles  the  evaluative  evidence.  Evidence  has  been  gathered  through  several 
consultation  activities.  In  addition,  the  Commission  commissioned  two  studies  on  the 
topic, in 2020 and 2021.99 Furthermore, a recent European Parliament study, the EU Rule 
of Law reports (2020 and 2021), a recent report from the Fundamental Rights Agency on 
“Protecting civic space in the EU” as well as data stemming from the alerts reported on 
the  Council  of  Europe  platform  for  promoting  the  safety  of  journalists  and  the  data 
gathered via the European Media Pluralism Monitor provide evidence.  

There is no Impact Assessment on this initiative. As SLAPP target and harm actors who 
play a fundamental role in preserving the public interest in our democratic systems, it is 
crucial  that  strong  and  swift  action  be  taken  to  prevent  their  extensive  use.  Given  the 
nature  of  SLAPP,  quantifying  their  incidence  in  the  EU  and  the  full  extent  of  their 
economic  impact  is  a  challenge,  and  fully  assessing  their  impact  on  democracy  even 
more so. Due to a shortage of quantitative data, other available evidence have been used. 
An expert group against SLAPP100 has assisted the Commission in the preparation of the 
initiative  and  in  the  exchange  and  dissemination  of  best  practice  and  information  on 
SLAPP. A sub-group has supported the group’s discussions with research on the relevant 

99   The 

study 

commissioned 

available 
has 
https://ec.europa.eu/info/files/strategic-lawsuits-against-public-participation-slapp-european-union-
comparative-study_en. The study commissioned in 2020 is available at: 
https://ec.europa.eu/info/sites/default/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf  

published.is 

2021 

been 

not 

yet 

at: 

in 

100  https://ec.europa.eu/transparency/expert-groups-register/screen/expert-

groups/consult?do=groupDetail.groupDetail&groupID=3746 

36 

 
 
                                                           
 
 
 
 
legal issues. A specific sub-group on monitoring has assisted with the relevant areas of 
the non-legislative measures. 

37 

 
Annex 2: Stakeholder consultation  

The stakeholder consultation collected feedback on various aspects of the Commission’s 
initiative  against  abusive  litigation  (SLAPP)  targeting  journalists  and  human  rights 
defenders and its various policy options. Input and comments were received from a wide 
range  of  key  stakeholders  representing  EU  and  non-EU  citizens,  national  authorities, 
academics,  research  institutions,  legal  professionals,  NGOs  and  other  relevant  interest 
groups.  

The  aim  of  the  consultations  was  to  gather  feedback  from  those  directly  concerned  by 
SLAPP,  notably  targets  but  also  legal  professionals  such  as  judges,  prosecutors  or 
lawyers.  Associations  and  organisations  that  represent  and  defend  SLAPP  targets,  such 
as journalists’ organisations and human rights defenders organisations, were considered 
to provide important input, as well as  Member States, especially for information on the 
remedies available at the national level against SLAPP (albeit non-SLAPP specific), best 
practices and the dimension of SLAPP, despite the challenges of data collection.  

CONSULTATION STRATEGY & CONSULTATION METHODS AND TOOLS 

The Commission’s consultation strategy included five main consultation activities, each 
of them having a different running period, recipient and/or object.  

The consultation activities involved an exploratory technical focus group discussion in 
March 2021, with a selected number of participants that included four targets of SLAPP, 
who  agreed  to  share  their  personal  experience,  provided  useful  insights  on  SLAPP  and 
helped inform the preliminary, preparatory phase.  

An  Open  (online)  public  consultation  accessible  via  the  Commission’s  central  public 
consultations  page101,  collected  from  4  October  2021  to  10  January  2022  views  of 
citizens, journalists, Member States, NGOs, civil society, judges, legal professionals and 
other stakeholders on SLAPP and what action should be taken to tackle it in the EU.  

101 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13192-EU-action-against-
abusive-litigation-SLAPP-targeting-journalists-and-rights-defenders/public-consultation_en 

38 

 
 
                                                           
 
 
A targeted consultation of national judges took the form of a survey102 shared through 
European  Judicial  Network  in  civil  and  commercial  matters.  It  was  launched  on  12 
November  2021  and  remained  open  until  10  January  2022.  It  sought  more  detailed 
feedback on identification of SLAPP, potential procedural shortcomings, already existing 
(albeit  non-SLAPP  specific)  national  remedies,  awareness  of  judges  on  SLAPP  and 
judges’ training needs.  

A technical meeting with Member States experts in October 2021 gathered insights on 
Member  States  views  (including  experts  from  relevant  Member  States’  independent 
bodies  and  authorities)  on  whether  and  what  type  of  EU-level  action  could  be  needed 
against SLAPP, what judicial remedies (if any and general or specific) and what kind of 
support are currently available at national level to SLAPP’s targets. 

A  meeting/workshop  with  selected  stakeholders,  with  particular  interest  in  issues 
related to SLAPP, provided in November 2021 a forum for discussion on the dimension 
of SLAPP, collecting information, discussing and testing possible solutions.  

In  addition,  an  informal  expert  group  against  SLAPP  was  set  up  in  early  2021 
(following  a  call  published  in  December  2020)  to  assist  the  Commission  in  shaping  an 
effective package against SLAPP. The expert group provided  legal  expertise as well as 
other good practice to help shape an effective initiative.  

The Commission’s work took also into account the evidence gathered by the European 
Parliament  during  the  preparation  of  its  own-initiative  report  on  the  matter  adopted  at 
the end of 2021. Two studies on SLAPP commissioned by the Commission also fed into 
the initiative. 

IDENTIFIED STAKEHOLDERS 

The  following  stakeholders  were  identified  as  relevant:  citizens,  SLAPP  targets,  NGOs 
and  civil  society  organisations,  media,  publishing  houses,  associations  involved  in  the 
protection  of  journalists,  legal  professionals,  in  particular  judges,  prosecutors,  lawyers 
(e.g. having to organise the defence of a SLAPP target) and their training providers and 
professional  networks,  both  at  the  European  and  national  level,  Member  States, 
international  organisations  with  a  mandate  in  freedom  of  expression  and  democracy, 
other  EU  institutions  (Council,  European  Parliament,  European  Economic  and  Social 
Committee,  Committee  of  Regions)  and  agencies  (Fundamental  Rights  Agency), 

102 https://ec.europa.eu/eusurvey/runner/EJN_SLAPP 

39 

 
                                                           
 
 
ombudsman office, associations and organisations involved in democracy matters, other 
organisations,  especially  those  involved  in  the  protection  of  freedom  of  expression, 
research, academia and “think-tanks”. 

MAIN STAKEHOLDER FEEDBACK PER CONSULTATION ACTIVITY 

Exploratory technical focus group discussion 

The technical focus group discussion took place on 11 March 2021 with the aim to gather 
direct feedback from SLAPP targets or those working on SLAPP on the type of support 
that  would  be  helpful.  Among  the  ten  participants  (representing  the  media  and  civil 
society), four targets of SLAPP shared their personal experience and lessons drawn. Two 
academics and representatives of the Council of Europe helped putting the contributions 
into  the  wider  context  of  fundamental  rights  and  EU  competences.  The  focus  group 
discussed about the rising number of alerts received by the Council of Europe on its 2015 
platform; the difficulty to establish a clear, undisputable criteria characterising a SLAPP 
case; the need for a mix of measures and a combined effort at EU and national level, such 
as  easier  access  to  legal  aid  and  financial  assistance  for  targets,  awareness  raising  and 
training  of  legal  professionals  concerned;  the  complexity  added  by  the  cross  border 
dimension  of  cases;  the  crucial  role  played  by  the  independence  of  the  judicial  system 
and  expertise  of  the  judiciary  professionals  to  identify  and  use  tools  available  to  end 
SLAPP cases. 

Open (online) public consultation (OPC)103 

The open public consultation received 178104 replies from across the European Union and 
abroad,  mostly  from  NGOs  (70)  and  citizens  (60),  representing  22  Member  States. 
However,  some  of  the  respondents  were  umbrella  organisations  with  members  in  all 
Member States105. These EU-wide organisations reported that SLAPP are on the rise in 
the  EU,  including  cross-border  cases.  Among  the  NGOs,  organisations  of  journalists, 

103 The contribution received in the context of the OPC cannot be regarded as the official position of the 
Commission  and  its  services  and  thus  does  not  bind  the  Commission  nor  the  contributions  can  be 
considered as a representative sample of the EU population 

104  The  OPC  received  146  replies  but  the  Coalition  against  SLAPPs  in  Europe  (CASE;  the-case.eu) 
requested that 32 signatory organisations of its reply be each calculated as a respondent. However, for 
the  purposes  of  illustrating  facts  and  figures  from  the  OPC,  the  Coalition  has  been  considered  as  a 
single respondent 

105 e.g. European Broadcasting Union, EBU, and ILGA Europe 

40 

 
                                                           
 
 
environmental  organisations  and  human  rights  organisations  were  most  prominent.  The 
ENNHRI (European  Network of Human Rights  Institutions) flagged the  use of SLAPP 
against  national  human  rights  institutions.  Seven  Member  States106  participated  in 
consultation,  including  France  and  Czechia.  Citizens,  NGOs  and  trade  unions  strongly 
support  EU-wide  action  against  SLAPP,  both  legislative  and  non-legislative,  whilst  the 
views  among  Member  States  were  more  divided,  in  particular  concerning  legislative 
action. 

The opinions expressed in the OPC were convergent in terms of the content of training 
on SLAPP and its audience, the need to raise awareness across the board and to provide 
support  to  SLAPP  targets,  the  benefits  of  collecting  data  systematically  and  proper 
monitoring of SLAPP. 

Feedback taken on board in the Recommendation includes in particular the invitation to 
review defamation laws, the promotion of professional and ethical standards on SLAPP, 
the  emphasis  on  fundamental  rights  and  practical  information  in  SLAPP  trainings,  the 
forms  of  assistance  to  SLAPP  targets  and  defendants,  which  comprise  provision  of 
information  and  public  funding,  as  well  as  collection,  monitoring  and  publication  of 
SLAPP. 

Some feedback was not taken into account, as it is outside the scope of the initiative (e.g. 
the  possibility  of  the  defendant  to  be  substituted  in  proceedings  by  a  third  party,  the 
setting up of a mechanism to refinance journalistic activities, the establishment of a EU 
register  of  claimants  or  of  dedicated  professional  indemnity  insurance  schemes  for 
journalists, and ensuring access to psychosocial support services). 

Targeted consultation of national judges  

The  targeted  consultation  received  130  replies,  in  11  languages107.  All  the  respondents 
answered  as  individual  national  judges.  Unlike  the  majority  of  respondent  to  the  OPC 
consultation, the majority of judges were unfamiliar with the concept of SLAPP (60.77% 
of the respondents, 79 out of 130 replies). The respondents signalled that there is no legal 
definition  of  SLAPP  or  a  special  procedure  in  their  Member  State.  However,  many 
respondents  referred  to  general  remedies,  which  are  applicable  to  SLAPP,  such  as 

106  CZ,  EE,  FI,  FR,  IT,  LT  and  MT.  Also  some  regional  authorities  (ES,  DE)  and  national  Ombudsmen 

(HR, PL). 

107 CZ, DE, FI, FR, IE, IT, LV, NL, PL, PT and SE 

41 

 
                                                           
 
 
applicable  law  rules,  an  early  dismissal  procedure,  legal  aid  for  the  target,  third  party 
interventions  and  suspensive  measures.  Majority  of  the  respondents  were  not  able  to 
reply to  the question related to  the need of legislative changes  at  national  and/or at  the 
EU level. As for non-legislative measures, judges listed in order of preference: training 
(prioritizing  specific  training  on  SLAPP),  exchange  of  best  practices  with  other  legal 
professionals in their Member State or from other Member States and a specific contact 
point  for  guidance  and  monitoring.  The  majority  considered  that  SLAPP  should  be 
monitored in Member States. 

Technical meeting with Member States experts 

The  meeting  took  place  on  26  October  2021.  The  Commission  presented  the  plan  to 
propose a comprehensive initiative in the form of a package of both legislative and non-
legislative components. Member States’ experts discussed the questions prepared by the 
Commission with regard to the legislative elements, which are limited to civil procedural 
area.  They  also  exchanged  information  on  the  provisions  available  under  their  national 
procedural systems, the cross-border dimension of the phenomenon and the possible key 
components  of  a  legislative  and  non-legislative  anti-SLAPP  initiative  at  EU  level.  The 
French  Presidency  expressed  a  mainly  positive  opinion  towards  the  initiative  and 
considered that both legislative and non-legislative action is needed. In contrast, Czechia 
signalled  that  it  would  not  support  legislative  action  against  SLAPP  in  cross-border 
situations  and,  instead,  action  should  be  non-legislative.108  Most  Member  States109 
demonstrated support or some support. In contrast, FI, HU and PL expressed a negative 
opinion  towards  legislation.  Some  Member  States110  showed  hesitation,  in  particular 
towards legislation, while others were still reflecting or on a waiting mode111.  

Stakeholder workshop 

On  25  November  2021,  the  Commission  organised  a  stakeholder  workshop  with 
participation  of  34  interested  organisations,  including  the  Council  of  Europe  and  the 
Fundamental Rights Agency and with the participation of the European Parliament. The 

108 Both FR and CZ positions are based on their reply to the public consultation.  

109 BE, DE, ES, FR, HR, IE, IT, LV, LT, MT, NL, PT and SK. 

110 EE and SE 

111 AT, BG, EL, LU and RO 

42 

 
                                                           
 
 
attending  organisations  expressed  strong  support  to  EU-level  action  on  SLAPP  and 
provided important additional evidence on SLAPP in the EU. 

Other consultations  

Informal expert Group  

The Commission worked intensively both with the main Expert Group and the legislative 
sub-group, who met on a monthly basis. An informal sub-group on monitoring was also 
organised on 17 January.  

European Parliament 

The European Parliament  adopted an own-initiative report on SLAPP on  11 November 
2021112  calling  for  the  Commission  to  present  a  comprehensive  package  of  measures 
against SLAPP, including legislation.  

Commissioned studies 

The  Commission  has  also  commissioned  two  studies  in  order  to  develop  a  better 
understanding of the phenomenon in  the EU and a first  mapping of the situation in  the 
Member States.113  

Feedback to the Roadmap  

Feedback  resulted  from  six  NGO’s,  three  EU  citizens  and  a  micro  enterprise,  whose 
countries of origin  are Spain  (2), Germany (2),  Netherlands  (1),  Italy  (1), Hungary  (1), 
Czech Republic (1), Belgium (1) and Austria (1). The contributions emphasized the need 
of  a  broad  definition  of  the  personal  and  material  scope  and  suggested  to  put  in  place 
procedural  safeguards,  such  as  accelerated  proceedings,  measures  to  deter  the  filing  of 
multiple  claims  against  the  same  claimant  and  related  to  the  same  publication, 
specialization of courts. Other suggestions concerned the mapping of SLAPP within the 
rule of law monitoring, funds to support and assist the targets and data collection.  

Contributions received outside the formal consultations 

112  European  Parliament  resolution  of  11  November  2021  on  strengthening  the  democracy  and  media 
freedom  and  pluralism  in  the  EU:  the  undue  use  of  actions  under  civil  and  criminal  law  to  silence 
journalists, NGOs and civil society (2021/2036(INI)). 

113 See Annex 1. 

43 

 
                                                           
 
 
Ministry  of  Justice  of  Land  Nordrhein-Westfalen  in  Germany  issued  a  Position 
Paper, stating that the  initiative can be supported insofar  as corresponding mechanisms 
are to  be launched  in  legal  systems  which do not  yet  offer sufficient  protection against 
abusive court proceedings. The basic prerequisite for combating SLAPP claims however 
is  to  ensure  the  independence,  quality  and  efficiency  of  the  judicial  systems  of  the 
member  states.  Where  effective  procedural  and  substantive  rules  for  the  dismissal  of 
abusive  claims  already  exist  in  Member  States,  the  intended  European  requirements 
should take these into account and be consistent with them. Amendments to international 
civil  procedural  law  and  soft  law  measures  appear  particularly  suitable  to  prevent 
possible abuse. 

The Office of the Croatian Ombudsman issued the replies to the questionnaire of the 
OPC via mail outside the EU survey Portal, reporting that they had not been granted user 
profile registration. The contribution has been taken into account even if it does not result 
the statistics provided by the software available to the Commission services. 

The Government of Malta issued the replies to the questionnaire of the OPC via mail 
outside the EU survey Portal two days after the closure. The contribution has been taken 
into  account  but  it  has  not  been  included  in  the  statistics  provided  by  the  software 
available to the Commission services. 

44 

 
Annex 3: Overview of the characteristics of civil proceedings in 
Member States relevant for SLAPP 

1  

Early Dismissal 

As  explained  in  the  analysis  of  the  characteristics  of  SLAPP,  they  aim  at  draining 
defendant’s resources, such as time and money. Because of that, the possibility to detect 
and dismiss a SLAPP at the earliest stage possible is a critical measure in the anti-SLAPP 
toolbox.  At  the  same  time,  the  benefits  of  early  dismissal  must  be  weighed  against  the 
principle of the right to be heard and right of access to justice.  

1.1 

First instance proceedings 

The technical workshop with Member States on 26 October 2021 revealed that none of 
the Member States had any specific safeguards against SLAPP. However, some Member 
States  have  reported  on  general  procedural  safeguards,  which  may  provide  some 
protection against SLAPP. This section concerns predominantly provisions that allow the 
court  to  dismiss  a  SLAPP  before  the  first  hearing.  Table  1  presents  seven  EU 
jurisdictions (CY, EE, FI, NL, PL, PT, SE), where reasons that could be associated with a 
SLAPP  case  -  such  as  lack  of  sufficient  interest,  a  clearly  unfounded  claim  or  its 
frivolous nature – could lead to such dismissal.  

Member 
State 

Cyprus 

Estonia 

Condition 

Result; stage of the 
proceedings 

Remarks 

Applies  to  any  stage 
of the proceedings  

Action is frivolous or vexatious 
(Order  27  Rule  3  of  the  Civil 
Procedure Rules) 

-  The  violation  of  the  rights  of 
the  plaintiff  is  not  possible  on 
the  basis  of 
factual 
circumstances presented;  

the 

stayed, 
Action 
dismissed 
or 
judgement  to  be  enter 
accordingly 

The  court  may  refuse 
to  hear  an  action  – 
inadmissibility. 

- The action is not filed for the 
protection of a right  or interest 
of the plaintiff protected by law 
or  for  a  purpose  for  which  the 
state 
legal 
protection, or the action cannot 
achieve the aim pursued by the 
plaintiff  (article  371(2)  of  the 

should 

grant 

45 

 
 
 
Civil Procedure Code) 

Finland 

- Claim is clearly unfounded  

Inadmissibility  

-  No  sufficient 
bringing the case 

interest 

in 

Netherlands  -  No  sufficient 

in 
bringing the case (Article 3:303 
of the Civil Code) 

interest 

Inadmissibility 

Applies  to  all  legal 
the 
remedies  during 
course 
of 
proceedings114 

Sweden 

-  Plaintiff’s  statement  does  not 
constitute  a  legal  basis  for  the 
case 

 -  Case  is  clearly  unfounded 
(Chapter  42  Section  5  Code  of 
Judical Procedure) 

The  court  may  enter 
judgement 
into 
without 
a 
summons  –  decision 
on the merits. 

issuing 

Portugal 

Claim  is  manifestly  unfounded 
(article  590(1)  of  the  Civil 
Procedure Code)  

 Claim is dismissed  

Poland 

Claim  is  obviously  unfounded 
(article  1911  of  the  Code  of 
Civil Procedure) 

Dismissal  –  decision 
on  the  merits  during 
an in camera sitting 

Analogous  conditions 
are  laid  down  for  an 
appeal  that  is  lodged 
judgement 
against  a 
to 
issued  pursuant 
article  1911 
(article 
3911  of  the  Code  of 
Civil Procedure) 

Table 1. Instruments allowing for early dismissal of the case in civil proceedings at the 
court of first instance  

114 ECLI:NL:HR:1928:86, https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:1928:86  

46 

 
 
 
 
                                                           
 
 
 
As  to  the  conditions,  only  the  Cypriot  provision  refers  explicitly  to  a  “frivolous  or 
vexatious” action, which may be best suited to counter SLAPP. The remaining provisions 
refer to, i.e., the action being “manifestly unfounded” and the lack of sufficient interest. 
With regard to the result, the mechanisms allow for declaring an action as inadmissible or 
for dismissing it by entering into judgement. While both of these solutions are beneficial 
for  potential  SLAPP  defendants,  the  second  one  allows  the  case  to  gain  a  res  iudicata 
quality – barring subsequent attempts to bring the same case before a court.  

Case  law  and/or  legal  commentaries  underline  the  extraordinary  nature  of  the  above-
described  mechanisms.  The  Supreme  Court  of  Cyprus  has  underlined  that  the  use  of 
Order 27 is “appropriate only in cases that are simple, obvious and clear” and cannot be 
applied  where  the  decision  required  taking  testimony  either  in  writing  or  orally.115  In 
Estonia, an action may be dismissed only if the plaintiff’s claim could not be upheld on 
any substantive basis, even one not mentioned in the claim itself.116 The courts may also 
not examine any evidence when deciding to dismiss a claim.117 The Supreme Court of the 
Netherlands has also ruled that courts should be cautious about rejecting a claim on the 
ground that there is no sufficient interest.118 

In  some  jurisdictions,  the  possibility  to  use  the  early  dismissal  mechanism  for  SLAPP 
cases  has  been  questioned  explicitly.  According  to  legal  commentaries  concerning  the 
Dutch  mechanism,  it  seems  that  the  fact  that  an  action  is  lodged  only  to  harm  another 
party  or  for  a  purpose  other  than  that  for  which  the  legal  remedy  was  envisioned  does 
not, in itself, mean that there is no sufficient interest in the proceedings.119 Similarly, the 

115 Judgement of the Supreme Court of Cyprus in the case Charilaos Aloneftis Ltd. (Industry) and Others 

Alpha Bank Ltd former Lombard Natwest Bank Ltd (2003) 1 AAD 990. 

116 Judgement of the Supreme Court of Estonia of 5 June 2007, 3-2-1-56-07, points 11 and 12, points 11 

and 12 https://www.riigikohus.ee/et/lahendid/?asjaNr=3-2-1-56-07  

117  Judgement  of  the  Supreme  Court  of  Estonia  of  6  January  2021,  2-19-20574,  points  9  and  10, 
https://www.riigiteataja.ee/kohtulahendid/fail.html?id=281852456; Judgement of the Supreme Court of 
Estonia 
13 
https://www.riigiteataja.ee/kohtulahendid/fail.html?id=206130530  

3-2-1-31-12, 

2012, 

point 

May 

of 

2 

118 Judgement of the Sureme Court of the Netherlands of 17 September 1993, ECLI:NL:HR:1993:ZC1058, 

https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:1993:ZC1058  

119  V.C.A.  Lindijer,  De 

goede 

procesorde 

(BPP 

nr. 

IV) 

2006/9.5.3.2, 

at 

546, 

https://www.navigator.nl/document/ida1a9a6de8f62af34ba43ec31f7d810d5/de-goede-procesorde-
burgerlijk-proces-praktijk-nr-iv-9532-criteria-voor-misbruik-van-procesbevoegdheid-uitoefening-
zonder-redelijk-belang?ctx=WKNL_CSL_1311  

47 

 
                                                           
 
 
Appellate Court in Łódź (Poland) has ruled that the early dismissal mechanism “…seems 
to  refer primarily to  situations in  which, by bringing an action, a party seeks neither to 
obtain a favourable judgment nor to oppress his  opponent, but merely to  instigate legal 
proceedings for the sake of participating in them”.120 

Finally,  in  some  legal  systems  that  do  not  foresee  explicitly  a  possibility  for  early 
dismissal  of  a  case,  there  are  some  elements  which  may  nevertheless  expedite 
proceedings of SLAPP, to the benefit of the defendant.  

In  Slovakia,  the  court  may,  pursuant  to  article  171(2)  of  the  Code  of  Civil  Procedure 
(Civilný sporový poriadok) decide the merits of a case  during a preliminary hearing, as 
long as it is “possible and expedient”. (In other cases, the preliminary hearing serves as 
an opportunity for the court, together with the parties to the dispute, to determine whether 
the procedural conditions have been met and to take measures to eliminate the identified 
deficiencies, determine which factual allegations are disputed, take decisions on evidence 
and the expected data of the hearing.) 

Pursuant to article 86a(2) of the Austrian Code of Civil Procedure (Zivilprozessordnung), 
if a written pleading consists of confused, unclear or pointless statements, and if it fails to 
recognise the request, or exhaustively repeats points of dispute which have already been 
settled  or  claims  already  made,  it  shall  be  rejected  without  any  attempt  to  improve  it. 
Similarly, pursuant to Order 19 r. 26 of the Cypriot Civil Procedure Rules, the court may 
at any stage of proceedings order to struck or amend any matter in any of the pleadings 
which  may  be  unnecessary,  scandalous,  or  which  may  tend  to  prejudice,  embarrass  or 
delay the fair trial of action. These tools, which concern specific pleadings or actions and 
aim at countering the unnecessary delay of proceedings, bear resemblance to instruments 
allowing judges to punish the abuse of procedural rights (see below under 5.2).  

1.2 

 Second instance proceedings 

There are also some possibilities for “early” dismissal of a SLAPP case at the courts of 
second instance (appellate courts). Table 2 contains relevant mechanisms from seven EU 
jurisdiction (DK, MT, EE, ES, IE, IT, PT). 

120  Judgement  of 

the  Appelate  Court 

in  Łódź  of  30  October  2020, 

I  Aca  1050/20, 

https://sip.lex.pl/#/jurisprudence/523201844 (own translation, emphasis added). 

48 

 
                                                           
 
 
Member 
State 

Provision 

Condition 

Result/procedure 

The  appeal  could  manifestly 
not be upheld. 

The  court  of  appeal  should 
not accept an appeal. 

Estonia  Article 

637(1)(6)  of 
the 
Civil 
Procedure 
Code 

Article  473 
Civil 
Procedure 
Act 

Spain 

Ireland  Order 

19, 
Rules  27-28 
of 
the 
Superior 
Court Rules 

Italy 

Malta 

cf.  Art.  348 
bis 
Civil 
Procedure 
Code 

Section 
195(7)  of  the 
Code 
of 
Organisation 
Civil 
and 
Procedure 

The  appeal 
unfounded 
extraordinary 
procedural infringements). 

is  manifestly 
(concerns  only 
for 

appeals 

The  action  is  frivolous  or 
vexatious. 

The  appeal  has  no  reasonable 
probability of being upheld. 

The  appeal  is  frivolous  and 
vexatious. 

The appeal shall be declared 
inadmissible. 

The  Court  may  order  the 
action 
to  be  stayed  or 
dismissed,  or  judgment  to 
(issued) 
be 
accordingly, as may be just. 

entered 

is  dismissed, 
The  appeal 
after  a hearing in  which the 
court  has  to  determine  the 
changes that the appeal  will 
be upheld. 

The  Court  of  Appeal  may 
dismiss  the  appeal  in  open 
court  on  the  day  fixed  for 
the  first  hearing,  after  the 
are 
written 
deemed to be concluded. 

pleadings 

The  rapporteur  shall  give  a 
summary  decision,  which 
may  consist  in  a  simple 
to  a  previous 
reference 
decision. 

Portugal  Article  656 
of  the  Civil 
Procedure 
Code 

The  appeal 
unfounded. 

is  manifestly 

Table 2. Instruments allowing for early dismissal of the case in civil proceedings at the 
court of second instance 

This shows that some jurisdictions set significantly higher conditions for appeals than for 
the  claims  submitted  at  first  instance  and  may  therefore  constitute  a  barrier  against 

49 

 
 
 
 
frivolous  SLAPP  appeals.  In  particular,  two  jurisdictions  (IE  and  MT)  foresee  the 
“frivolous and vexatious” nature of an appeal as a reason for an early dismissal.  

2. 

Abuse of procedural rights 

The  principle  of  prohibition  of  abuse  of  rights  is  a  principle  common  to  the  legal 
traditions of essentially all the Member States. This is reflected in the fact that the Grand 
Chamber of the Court of Justice recently recognised that the principle of prohibition of 
abuse  of  rights  is  a  general  principle  of  Union  law,  which  individuals  must  comply 
with.121 Similarly, Article 54 of the Charter of Fundamental Rights explicitly lays down 
the  prohibition  of  abuse  of  rights.  That  provision  is  itself  based  on  Article  17  of  the 
ECHR122 which also sets out the prohibition of abuse of rights. 

Whilst this principle has a wider application in the legal systems of the Member States, it 
also applies – in  almost every Member State  – to the abuse of procedural rights during 
judicial  proceedings.  As  such,  it  is  intended  to  prevent  –  or  at  least  discourage  –  the 
lodging  of  abusive  legal  actions  and/or  the  submission  of  abusive  procedural  requests 
during  the  course  of  proceedings.  If  effective,  it  can  therefore  prove  a  useful  means  of 
countering SLAPP, provided that the latter fulfil the conditions laid down in national law 
to be considered as abusive. 

It appears that virtually all Member States – with the exception of Denmark – apply the 
principle  of  prohibition  of  abuse  of  procedural  rights  to  civil  proceedings.  There  are, 
however,  significant  differences  in  the  way  the  principle  is  applied  in  practice.  In 
particular,  two  main  distinctions  ought  to  be  highlighted.  Firstly,  Member  States  apply 
different criteria to determine whether an action is abusive (2.1). Whereas a majority of 
Member  States  applies  the  concept  of  good/bad  faith  in  order  to  determine  whether  a 
given  action  is  abusive,  other  national  legal  systems  focus  on  whether  the  (procedural) 
right  is  being  relied  upon  for  reasons  other  than  those  intended  by  the  legislator. 
Secondly, national legal systems diverge on the sort of remedy to be granted in case the 
action  is  indeed  deemed  abusive  (2.2).  On  the  one  hand,  most  Member  States  prefer 
either  to  award  damages  to  the  party  which  has  suffered  from  the  abusive  action  or  to 
impose fines on the party that acted abusively. On the other hand, some Member States 

121  Judgment  of  6  February  2018,  Altun,  C-359/16,  EU:C:2018:63,  paragraph  49.  See  also  Stefan 
Vogenauer, ‘The Prohibition of Abuse of Law: An Emerging General Principle of EU Law’ in Rota de 
la Feria and Stefan Vogenauer (eds), Prohibition of Abuse of Law (Hart 2011) 521. 

122 Cf. Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 17. 

50 

 
                                                           
 
 
have  chosen  to  empower  the  national  courts  to  dismiss  abusive  requests  or  actions 
instead. 

2.1 Criteria for abuse of rights 

In all Member States a party to legal proceedings will be deemed to have acted abusively 
only  in  exceptional  circumstances.  Indeed,  as  parties  are,  in  principle,  entitled  to  bring 
legal  actions  and  to  rely,  during  the  course  of  proceedings,  on  the  procedural  rights 
available  to  them,  it  is  only  in  particularly  extreme  situations  that  national  courts  will 
make a finding of abuse of rights. 

For  instance,  the  Lithuanian  Supreme  Court  has  stressed  that  it  is  only  in  exceptional 
circumstances that it can be concluded that a procedural right was abused, namely when 
the  right  was  manifestly  not  used  for  the  purpose  for  which  it  was  intended.123  The 
Portuguese  Supreme  Court  equally  ruled  that  courts  should  be  cautious,  prudent  and 
reasonable  when  examining  whether  there  is  a  case  of  bad  faith  litigation,  which  only 
occurs  when  it  is  demonstrated,  manifestly  and  unequivocally,  that  the  party  acted 
maliciously  or  with  severe  negligence.124  Similarly,  according  to  the  Italian  Supreme 
Court,  punitive  damages  for  abusive  appeals  cannot  be  awarded  simply  because  the 
grounds of appeal were unfounded – or even manifestly founded. Rather, they can only 
be awarded if the party failed to display the minimum level of diligence that would have 
allowed it to realise that its arguments were unfounded or inadmissible.125  

The exceptional nature of a finding of abuse of rights is also reflected in the case-law of 
the European Court of Human Rights on the application of Article 17 of the Convention. 
In  its  first  ever  judgment,  the  Strasbourg  Court  held  that  the  crucial  criterion  for  an 
assessment  under  Article  17  of  the  ECHR  is  whether  the  applicant  sought  to  rely  on 
his/her Convention rights ‘in order to justify or perform acts contrary to the rights and 
freedoms recognised therein’.126 Thus, the Grand Chamber of the Court has for instance 
held  that  the  glorification  of  wartime  French  collaborators,  which  fell  short  of  denying 

123 Judgment of the Supreme Court of Lithuania of 29 October 2020, No 3K-3-279-684/2020. 

124 Judgment of the Supreme Court of Portugal of 2 June 2016, No 2326/22.09TBLLE.E1.S1. 

125 Judgment of the Supreme Court of Italy of 20 April 2018, No 9912. 

126 ECtHR, Lawless v Ireland, ECLI:CE:ECHR:1961:0701JUD000033257, para 7. 

51 

 
                                                           
 
 
Nazi  atrocities  committed  in  France,  was  not  an  abuse  of  the  freedom  of  expression 
enshrined in Article 10 of the Convention.127 

Generally,  all  national  legal  systems  require  a  case-by-case,  in-depth  assessment.  For 
instance, the Spanish Supreme Court has called for a prudent and restricted application of 
the  doctrine  of  abuse  of  rights,  underlining  that  a  finding  of  abuse  requires  strong  and 
effective  proof  of  the  exercise  of  an  action  for  a  tortious  and  fraudulent  purpose.128  In 
Germany, the case-law has also explicitly underlined the need for a careful examination 
and weighing of the relevant individual circumstances, taking into account the behaviour 
of the claimant in pursuing the action, the type and severity of the incriminated behaviour 
and  the  behaviour  of  the  defendant.129  Furthermore,  in  carrying  out  their  assessment, 
national  courts  must  take  into  account  not  just  the  behaviour  of  the  parties  during  the 
course of proceedings, but also prior to them.130 

The need for an individual assessment demonstrates the difficulty inherent in drawing up 
general  criteria  to  determine  the  abusive  nature  of  a  party’s  conduct  during  legal 
proceedings.  Indeed, in  most circumstances,  a finding of abuse  will be extremely case-
specific  and  based  on  the  unique  circumstances  of  those  proceedings.  Nonetheless, 
national legislators and national courts have sought to devise different sets of criteria to 
guide the  assessment to  be carried out  by the courts. Whilst  each national  legal  system 
has  its  own  peculiarities,  two  main  strands  can  be  identified.131  On  the  one  hand, 
approximately half of the Member States rely – at least to some extent – on the concept 
of good faith and a party will thus be considered as having acted abusively if it failed to 
comply with the requirement of good faith. On the other hand, in some Member States, 
national  courts  examine  whether the party’s  conduct  was motivated  by  a  purpose other 
than that for which the procedural right had been bestowed upon that party. 

127 ECtHR, Lehideux and Isorni v France, ECLI:CE:ECHR:1998:0923JUD002466294, para 47. 

128 Judgment of the Supreme Court of Spain No 4623/2010.  

129  BGH,  Judgment  of  15  December  2011  -  I  ZR  174/10  (OLG  Hamm)  Bauheizgerät,  para  15;  OLG 

Brandenburg (6. Zivilsenat), Judgment of 26 June 2020 – 6 U 119/19, para 18. 

130 OLG Brandenburg (6. Zivilsenat), Judgment of 26 June 2020 – 6 U 119/19, para 19. 

131  One  outlier  in  this  respect  is  Ireland,  where  the  crucial  test  for  granting  the  so-called  Isaac  Wunder 
orders  is  whether  the  plaintiff  has  habitually  or  persistently  instituted  vexatious  or  frivolous  civil 
proceedings.  See  Lavery  J.  in  Keaveney  v  Geraghty  [1965]  IR  551.  Similarly,  the  Maltese  Code  of 
Organisation and Civil Procedure refers to ‘frivolous or vexatious’ appeals. 

52 

 
                                                           
 
 
2.1.1  Good/bad faith 

Most  legal  systems  contain  a  provision  requiring  parties  to  legal  proceedings  to  act  in 
good  faith.  Either  by  means  of  legislation  or  through  case-law,  these  provisions  have 
become also the underlying legal basis for a finding of abusive of procedural rights. This 
is, for example, the case of: 

1.  Section 200 of the Estonian Civil Procedure Code132 
2.  Section 74(6) of the Latvian Code of Civil Procedure133 
3.  Article 95 of the Lithuanian Civil Procedure Code134 
4.  Article 6(1) of the Luxembourgish Civil Code135 
5.  Article 5 of the Hungarian Code of Civil Procedure 
6.  Article 1295(2) of the Austrian Civil Code. 

That said, the way in which legal systems have articulated and implemented the principle 
of good faith varies greatly. 

In Germany, an action is admissible only if it has Rechtsschutzbedürfnis, which roughly 
translates  to  ‘need  for  legal  protection’.136  This  prerequisite  is  a  generally  recognised 
legal principle, which is common to all procedural rules. It is derived from the principle 
of  good  faith  enshrined  in  §  242  of  the  Bürgerliches  Gesetzbuch  (Civil  Code),  which 
obliges  the  parties  to  legal  proceedings  to  conduct  honest  litigation  and  prohibits  the 
abuse  of  procedural  rights.  The  exercise  of  such  rights  is  illegal  and  therefore 
inadmissible if they are used for purposes other than those stipulated by law and which, 
whilst  not  necessarily  forbidden,  are  legally  disapproving.137  Accordingly,  whilst  based 

132 See judgment of the Estonian Supreme Court of 2 November 2017, No 21462992. 

133 ‘Parties shall exercise their rights and perform their obligations in good faith.’ The official translation 
of the Code is available here. For an example of a practical application of Section 74, see judgment of 
the Supreme Court of Latvia of 25 August 2020, SKC-1304/2020. 

134 See the judgment of the Supreme Court of Lithuania of 29 October 2020, 3K-3-279-684/2020. 

135 See judgment of the Cour de Cassation of Luxembourg of 5 January 1993, pas. Lux, XXIX, p.241. 

136 As the German Federal Constitutional Court explained, there is an interest in legal protection as long as 
the person seeking legal protection is currently affected and can achieve a concrete practical goal with 
the legal remedy (BVerfG, judgment of 05 December 2001 - 2 BvR 527/99 -, para 33). 

137 OLG Brandenburg (6. Zivilsenat), judgment of 26 June 2020 – 6 U 119/19, para 18. 

53 

 
 
                                                           
 
 
on the principle of good faith, the concept of abuse of rights in German law draws also 
from  the  second  type  of  criteria  chosen  in  certain  Member  States,  namely  whether 
procedural rights are used for purposes other than those provided for by law. 

The Spanish Civil Code also provides that rights must be exercised in accordance with 
the requirements of good faith. Article 7 of the Code specifically provides that any act or 
omission  which  by  the  intention  of  its  author,  by  its  object  or  by  the  circumstances  in 
which  it  is  carried  out  manifestly  exceeds  the  normal  limits  of  the  exercise  of  a  right, 
with damage to third parties gives rise to liability in damages. According to the Spanish 
Supreme  Court,138  three  cumulative  conditions  must  be  fulfilled  in  order  for  a  court  to 
make a finding of abuse of rights. First, a party has used a right, which is objectively or 
externally legal. Second, the exercise of that right has caused damage to an interest of a 
third party, which is not protected by a specific legal provision. Third, the damage must 
be of an immoral or anti-social nature, either from a subjective perspective (i.e. the right 
is replied upon with the intention to harm, or simply without a serious or legitimate aim) 
or  from  an  objective  perspective  (i.e.  the  damage  is  the  result  of  the  excessive  or 
abnormal reliance on the right, which is contrary to the right’s economic-social purpose). 

In  Italy,  Article  96  of  the  Codice  di  procedura  civile  (Civil  Procedure  Code)  provides 
that  the  losing  party  in  a  civil  case  may  have  to  pay  compensatory  as  well  as  punitive 
damages. The latter may be awarded in case the losing party acted in bad faith or with 
gross negligence. In accordance with the case-law of the Italian Supreme Court, bad faith 
requires  that  the  party  knew  that  the  arguments  it  presented  in  court  were  unfounded, 
whereas  gross  negligence  corresponds  to  a  lack  of  normal  diligence  that  would  have 
allowed the party to realise that its arguments were unfounded.139 Punitive damages have, 
for  instance,  been  awarded  where  the  cassation  appeal  on  a  point  of  law  requested,  in 
essence, a new assessment of the facts or of the substance of the case, which is clearly 
inadmissible  in  such  appeals.140  Damages  have  also  been  awarded  where  the  judgment 
under appeal was fully reasoned and the grounds of appeal submitted by the losing party 
were  manifestly  wrong.141  On  the  other  hand,  the  Supreme  Court  has  refused  to  award 

138 Judgment of the Supreme Court of Spain of 3 April 2014, No 159/2014. 

139 Judgment of the Supreme Court of Italy of 13 September 2018, No 22405. 

140 Judgment of the Supreme Court of Italy of 2 April 2019, No 9064. 

141 Judgment of the Supreme Court of Italy of 28 November 2019, No 31075. 

54 

 
                                                           
 
 
punitive  damages  where  the  applicable  legal  framework  was  unclear142  or  where  the 
arguments  presented  seemed  prima  facie  well  founded  or  at  least  worthy  of  careful 
examination.143 

Portugal seems to be the only Member State in which the national legislator laid down 
in the Civil Procedure Code, in an explicit and exhaustive manner, the circumstances in 
which a party to legal proceedings can be considered to have acted in bad faith. Article 
542(2)  of  the  Civil  Procedure  Code  lists  four  instances  of  bad  faith,  including  the  fact 
that  the  party  in  question  used  the  proceedings  or  procedural  means  in  a  manifestly 
reproachable  manner.  It  should  be  stressed,  however,  that,  as  noted  also  by  the 
Portuguese Supreme Court, a party only acts in bad faith where there is clear evidence of 
willful or grossly negligent conduct.144 Thus, the Court of Appeal of Lisbon has defined a 
party  acting  in  bad  faith  as  ‘the  party  which,  not  only  intentionally  but  also  with  gross 
negligence,  makes  a  manifestly  unfounded  claim  or  opposition,  alters  by  action  or 
omission the truth of the relevant facts, commits an inexcusable omission of the duty to 
cooperate or makes a reproachable use of adjectival instruments’.145 

2.1.2   Purpose of the action 

In a smaller number of Member States, the assessment of an abuse of procedural rights is 
instead based on whether the party to the proceedings relied upon a right for a purpose 
other  than  that  intended  by  the  law.  This  is  the  case,  for  example,  in  Czechia,  in  the 
Netherlands, in Poland and, to some extent, in Italy. However, whereas in Czechia and in 
Italy this criterion results from the case-law of the national courts, in the Netherlands and 
Poland146 it is explicitly provided for in national law. 

In  particular,  Article  3:13  of  the  Dutch  Civil  Code  provides  a  non-exhaustive  list  of 
circumstances that constitute an abuse of power. One of those three circumstances refers 
to situations in which a power is exercised for a purpose other than that for which it was 

142 Judgment of the Supreme Court of Italy of 24 September 2020, No 20039. 

143 Judgment of the Supreme Court of Italy of 7 January 2021, No 87. 

144 Judgment of the Supreme Court of Portugal of 11 December 2003, SJ200312110038937. 

145 Judgment of the Court of Appeal of Lisbon of 27 April 2017, 

ECLI:PT:TRL:2017:735.15.3T8LSB.L1.2.66. 

146 Article 4 of the Polish Code of Civil Procedure. 

55 

 
                                                           
 
 
granted. Since it may not be very easy to assess for what reason the legislature granted a 
given  power  relating  to  legal  proceedings,  the  judgment  finding  that  there  has  been  an 
abuse of power may, sometimes, have a circular reasoning. In other words, the court will 
first  examine  the  reason  for  which  the  party  exercised  its  power  and  will  then  decide 
whether such a reason  could  possibly have been the reason intended by  the legislature. 
For instance, it is unlawful to conduct proceedings seeking to bring pressure to bear on 
another person, to encourage that other person to provide a service on a matter other than 
that brought before the court or to cooperate better in other proceedings. The same is true 
if  procedural  powers  are  exercised  for  the  sole  purpose  of  prolonging  the  legal 
proceedings.147 

In Czechia, the Supreme Court ruled in 2015 that ‘an abuse of a procedural right may be 
regarded as an act of a party which is contrary to the purpose of a procedural rule or to 
a procedural concept and by which a party seeks to obtain an advantage unforeseen by 
procedural law or to frustrate the proper conduct of proceedings’.148  

The Italian Supreme Court held that one the circumstances in  which punitive damages 
may  be  awarded  at  the  end  of  civil  proceedings  is  where  the  losing  party  abused  the 
potestas agendi, i.e. if it initiated civil proceedings for reasons other than those for which 
the legal remedy was originally intended.149  

It  is  also  interesting  to  note  that  the  case-law  of  the  Court  of  Justice  would  appear  to 
also fit within this category, at least to some extent. As the Court has explained, a finding 
of  abuse  requires  a  combination  of  objective  and  subjective  elements.150  In  particular, 
with regard to the objective element, it must be apparent from a combination of objective 
circumstances that, despite formal observance of the conditions laid down by EU rules, 
the  purpose  of  those  rules  has  not  been  achieved.  Thus,  when  assessing  the  objective 
element, the Court examines whether a party’s reliance on the rights laid down in Union 

147 V.C.A. Lindijer, De goede procesorde (BPP nr. IV) 2006/9.5.3.2, point 550. 

148 Judgment of the Supreme Court of the Czech Republic of 10 February 2015, No 30 Cdo 3190/2014. 

149 Judgment of the Supreme Court of Italy of 13 September 2018, No 22405. 

150 Judgment of 17 July 2014, Torresi, C-58/13 and C-59/13, EU:C:2014:2088, paragraph 44 to 46. 

56 

 
                                                           
 
 
law is one of the possible situations in which the objectives of the piece of Union law at 
issue are achieved, in which case there can be no abuse of right.151 

2.2 Remedies granted in case of abuse of rights 

2.2.1   Award of damages and imposition of fines 

In the majority of Member States, the primary remedy granted where a court has made a 
finding of abuse of procedural rights is of a financial nature. In principle, such a remedy 
can take two forms: either the winning party is  awarded damages or the losing party is 
ordered to pay a fine. Furthermore, whereas in most cases only one of these remedies will 
be  granted,  in  Belgium,  Lithuania,  Poland  and  Portugal  a  court  can  potentially  grant 
both.152 

The  imposition  of  a  fine  is  provided  for  in  Latvia,153  Hungary,154  Malta155  and 
Slovakia156.  However,  it  is  questionable  to  what  extent  such  fines  can  have  a  real 
dissuasive effect upon parties intending to pursue SLAPP. Fines range from between 15 
and 2 500 EUR in Belgium, to a maximum of 1 200 EUR in Latvia and up to 5 000 EUR 
in  Lithuania.  Whilst  such  amounts  could  dissuade  an  average  person  from  lodging 
abusive proceedings, they could scarcely have a real impact on wealthy individuals or big 
corporations. 

151  Ibid.,  paragraph  49.  As  it  is  clear  from  the  Opinion  of  AG  Wahl  in  Torresi  (C-58/13  and  C-59/13, 
EU:C:2014:265, paragraph 95), a finding of abuse would require, in essence, unequivocal evidence that 
the person concerned sought to fulfil the conditions laid down in Union law by fraud or illegal means, 
such as forgery, bribery or misrepresentation). 

152  For  Belgium,  see  Article  780  bis  of  the  Code  judiciaire.  For  Lithuania,  see  Article  95  of  the  Civil 
Procedure  Code.  For  Poland,  see  Article  226(2)  of  the  Code  of  Civil  Procedure.  For  Portugal,  see 
Article 542 of the Code of Civil Procedure.  

153 Article 74(6) of the Code of Civil Procedure. 

154 Article 5 of the Code of Civil Procedure. 

155 In the form of increased court courts to be paid to the Registrar of Courts in accordance with the Code 

of Organisation and Civil Procedure. 

156 Article 58 of the Code of Civil Procedure. 

57 

 
                                                           
 
 
In most other Member States, national courts are empowered to order the losing party to 
bear  the  additional  costs  linked  to  the  legal  proceedings157  and/or  to  indemnify  the 
winning party for the damages it suffered. In particular, in a number of Member States, 
the  losing  party  can  be  required  to  pay  compensation  to  the  winning  party  for  material 
and  non-material  damage.  This  is  for  instance  the  case  in  Spain,158  Italy,159 
Luxembourg,160 Austria,161 Portugal162 and Romania.163 

Interestingly, the Italian Code of Civil Procedure also lays down the possibility to award 
punitive damages on top of the compensatory damages.164 Although such a possibility 
was introduced already in 2009, its use has been limited thus far as a consequence of the 
diverging  views  as  to  its  scope  of  application  expressed  in  the  case-law,  including  the 
case-law of the Supreme Court. More recently, the Supreme Court has, however, begun 
to  clarify  the  issue  and  has  started  applying  the  provision  on  a  regular  basis.165  Since 
punitive  damages  are  a  real  novelty  in  the  Italian  legal  system,  their  introduction  was 
subject  to  some  controversy  in  light  of  the  wide  margin  of  discretion  exercised  by  the 
national courts when determining the amount of damages. The Supreme Court has thus 
sought to limit that discretion by ruling that the amount of punitive damages should be 
calculated by reference to the cost of proceedings.166 Such an approach would, however, 

157 This is for instance the case in Czechia. See Article 147 of the Code of Civil Procedure. Italian criminal 
law  also  provides  for  the  reimbursement  of  the  costs  of  proceedings,  to  be  born  –  under  certain 
circumstances – by the person who alleged having being defamed. See, in that regard, Articles 427 and 
541(2) of the Code of Criminal Procedure. 

158 Article 1902 of the Civil Code. 

159 Article 96, first indent, of the Code of Civil Procedure. 

160 Article 6 of the Civil Code and Article 240 of the New Code of Civil Procedure. 

161 Article 408(1) of the Civil Procedure Code. 

162 Article 542 of the Code of Civil Procedure. 

163 Article 12 of the Civil Code. 

164 Article 96, third indent, of the Code of Civil Procedure. 

165 Judgments of the Supreme Court of Italy of 2 April 2019, No 9064; of 28 August 2019, No 21759; of 21 
November  2019,  No  30328;  of  28  November  2019,  No  31075;  of  20  April  2020,  No  7954  and  of  3 
November 2020, No 24258. 

166 Judgment of the Supreme Court of Italy of 13 September 2018, No 22405. 

58 

 
                                                           
 
 
seem to limit the effectiveness of punitive damages. In a 2018 judgment,167 the Supreme 
Court  ordered  Ryanair  to  pay  just  5  000  EUR  in  punitive  damages,  since  the  costs  of 
proceedings  were  5  200  EUR.  Whilst  punitive  damages  can  be  awarded  on  top  of 
compensatory  damages,  it  is  doubtful  whether  such  limited  amounts  can  have  a  real 
deterrent effect on a big company like Ryanair.  

2.2.2   Dismissing an action or request 

that 

inadmissible 

legal  actions 

to  dismiss  as 

In a more limited number of Member States, a finding of abuse of procedural rights can 
be a ground for dismissing an action or a request lodged by the party that committed the 
abuse  in  question.  Such  a  dismissal  can  take  various  forms.  German  courts  are  for 
lack 
instance  empowered 
Rechtsschutzbedürfnis  on  account  of  their  abusive  nature.168  Claims  have  even  been 
dismissed as inadmissible due to their abusive character without an explicit reference to 
the  concept  of  Rechtsschutzbedürfnis.169  In  Cyprus,170  defendants  can  request  that  the 
court dismiss or set aside the whole claim or just a part of thereof on the ground that the 
proceedings are frivolous or vexatious or constitute an abuse of the court’s process. An 
application to set dismiss or strike out court proceedings must be made without delay and 
as soon as possible, preferably before the filing of a statement of defence. As explained 
by  the  Cypriot  Supreme  Court,  such  a  procedure  cannot  be  applied  in  cases  where 
diagnosis of the problem requires a lot of examination, argumentation of reflection.171 It 
is  an  exceptional  and  drastic  measure  which  must  be  exercised  sparingly  and  only  in 
obvious and clear cases.172 

167 Judgment of the Supreme Court of Italy of 20 April 2018, No 9912. 

168 OLG Brandenburg (6. Zivilsenat), judgment of 26 June  2020  – 6 U 119/19, para 17; OLG Hamm (5. 
Zivilsenat),  Notice  Decision  of  10  August  2015  -  5  U  46/15,  para  15.  See  also  VG  München  (16. 
Kammer), judgment of 8 April 2008 - M 16 K 07.3303. 

169 BGH, decision of 12 July 2012 − V ZB 130/11, para 10; BGH, judgment of 17 November 2005  - I ZR 

300/02 (OLG Hamburg) MEGA SALE. 

170 Order 19 r.26 & Order 27 r.3. 

171  Charilaos  Aloneftis  Ltd.  (Industry)  and  Others  Alpha  Bank  Ltd  former  Lombard  Natwest  Bank  Ltd 

(2003) 1 AAD 990. 

172  Judgment  of  the  Supreme  Court  of  Cyprus  of  22  November  2017,  Nasas  Papatapiou  Christofidou  N. 

Radio Foundation of Cyprus, Political Appeal No. 226/2012. 

59 

 
                                                           
 
 
In certain jurisdictions, the powers of national courts are even more wide-ranging, as they 
entail  the  right  to  dismiss  even  individual  motions  raised  by  a  party  during  the 
proceedings. In the Netherlands, Article 3:13 of the Civil Code173 enables courts to make 
exceptions  to  powers  and  rights,  often  enshrined  in  law,  when  they  are  used  in  an 
unacceptable manner. Thus, during the course of proceedings, a court can rely on Article 
3:13 BW to (partially) set aside a provision conferring a given power on a party, insofar 
as  the  exercise  of  that  power  would  constitute  an  abuse  of  power.  This  may  therefore 
apply to both procedural rights of parties during the proceedings (e.g. the right to request 
a hearing174 or to hear witness testimony) as well as to the forms of order sought by the 
parties.175  Similarly,  Latvian  courts  may  rely  on  Article  74(6)  of  the  Code  of  Civil 
Procedure  to  dismiss  requests  on  the  ground  that  they  were  not  submitted  in  good 
faith.176 The powers of Estonian courts  are perhaps even more extensive, since Section 
200  of  the  Code  of  Civil  Procedure  stipulates  that  the  courts  must  not  allow  parties  to 
abuse their rights, prolong the proceedings or mislead the court, thereby providing also 
for an active role of the court. For instance, in a 2017 judgment,177 the Estonian Supreme 
Court held that a breach of the principle of acting in good faith needed to be taken into 
account when judging the evidence presented to the court, insofar as one party’s actions 
could potentially have hindered the other party’s chance to present their own evidence. 

Finally, the Irish legal system appears to provide the most effective means of redress in 
case of repeated abusive actions lodged by the same claimant against the same defendant. 
If the claimant is found to have habitually or persistently brought frivolous or vexatious 
actions against the defendant, the court may issue a so-called Isaac Wunder order, i.e. 
an  injunction  preventing  the  claimant  from  suing  the  defendant  without  a  preliminary 
leave  from  court.178  If,  despite  the  Isaac  Wunder  order,  the  claimant  brings  an  action 

173 Where relevant, by virtue of Article 3:15 of the Civil Code. 

174 See, for  instance, judgment of the Supreme  Court of the Netherlands of 24 June 2016, No 15/03942, 

ECLI:NL:HR:2016:1290. 

175 F.S. Bakker, Billijkheidsuitzonderingen (SteR nr. 40) 2018/4.2.2. 

176 See notably judgment of the Supreme Court of Latvia of 25 August 2020, SKC-1304/2020 

177 Judgment of the Supreme Court of Estonia of 2 November 2017, No 21462992. 

178 High Court, unreported, Ó Caoimh J., 11 May 2001 at pp. 2-3; affirmed by the Supreme Court (Keane 
C.J.)  on  19th  October  2001.  See  also  Queen’s  Bench  Division,  unreported,  Auld  L.J.  and  Smedley  J., 
14th April, 1997. 

60 

 
                                                           
 
 
against the defendant in question without first obtaining leave from court, the defendant 
is not required to appear or take any steps in relation thereto. Such proceedings would be 
treated as void and of no effect. Whilst this remedy is highly effective against repeated 
future claims, it does not constitute a basis for striking out the first claim lodged by the 
plaintiff despite its clearly frivolous or vexatious nature. 

61 

 
Annex 4: Cost Rules in Member States  

Member 
State 

Austria 

Lawyer fees 

Fees paid to 
lawyers for 
services rendered 
can be freely 
agreed upon 
between client 
and lawyer 

What do civil 
proceeding costs 
include 
The court fees payable 
for using the services 
of the courts take the 
form of either a flat 
fee or a proportional 
fee of the basis of 
assessment.  

Procedural fees/costs - 
when are they paid 

Court fees - For civil 
proceedings at first 
instance a flat-rate fee 
must be paid when lodging 
the application.  
Generally, each party must 
initially pay the costs 
incurred by their 
involvement in the 
proceedings. Mutually 
incurred costs are initially 
to be equally split between 
the parties. 

The registry fee must be 
collected when the case is 
entered in the register.  
Costs arising during the 
proceedings are generally 
collected while the 
proceedings are underway.  
For some costs, a reserve 
must be established, e.g. 
for expert costs.  

Belgium 

Lawyers’ fees are 
not regulated. 
Lawyers set them 
freely and they 
may be 
negotiated 
between client 
and lawyer, but 
lawyers must still 
set them within 
suitably 
restrained limits. 
The lawyers’ 
association may 
check that 
lawyers do not 
exceed these 
limits. 
Several 
calculation 
methods are 

Court costs which are 
fixed in Belgium. 
Costs vary depending 
on the court before 
which the proceedings 
are brought and the 
stage of the 
proceedings (first 
instance or appeal). 
These include: (a) 
registry and 
registration fees, (b) 
cost of an emoluments 
and salaries for 
judicial documents, 
(c) cost of executing a 
copy of the judgment, 
(d) costs of all 
measures of 
investigation – e.g. 
witness and expert 

Loser pays principle 

Yes – the principle is that the costs 
are awarded to the successful party, 
when the court decides the case it 
makes an order to costs. A party who 
loses a dispute in every respect must 
compensate the other party for all the 
fees and costs that were necessary for 
the proper prosecution or defence of 
the case. If the parties have 
succeeded in some of their claims 
and failed in others, the costs are 
mutually offset or shared 
proportionately. Departure from the 
principle that costs are awarded to 
the successful party is justified in 
certain cases:  
1) in the case of defeat on a relatively 
minor point, if the part of the action 
that is dismissed has occasioned no 
particular costs;  
2) if the amount of the claim is 
determined by experts, or is at the 
court’s discretion, and where costs 
are to be offset against each other;  
3) if the defendant’s conduct has 
given no cause for bringing the 
action and he or she has 
acknowledged the claim at the first 
opportunity; and 
4) if one of the parties has caused the 
proceedings to be cancelled or to be 
declared null and void, that party 
may be required to pay the full costs. 
Yes - the costs that constitute legal 
costs (costs of bailiff, expert, court 
etc.) are, in general, awarded to the 
losing party, once the judgment was 
delivered.  
In some cases, costs may be shared.  

A one-off contribution to the lawyer 
costs and fees of the winning party is 
part of the legal costs awarded 
against the losing party. This 
contribution is termed the ‘case 
preparation allowance’ and is a one-
off contribution calculated according 
to a scale based on the amounts 
involved in the case. It does not 
necessarily cover all of the fee costs. 
A Royal Decree of 26 October 2007 
determines the amounts of this case 
preparation allowance. The amounts 
are minima and maxima and it is for 

 
 
 
possible: hourly 
remuneration, 
remuneration for 
each service 
provided, 
remuneration 
according to the 
value of the case 
(percentage of the 
amount involved 
in the 
proceedings), etc. 
A fees pact solely 
linked to the 
outcome of the 
action is 
prohibited by 
Article 446b of 
the Belgian 
Judicial Code. 
Lawyers must 
inform their 
clients in advance 
of their fee 
calculation 
method. Lawyers’ 
fees are not 
subject to VAT in 
Belgium. 

The remuneration 
(fee) is regulated 
in line with the 
Ordinance of the 
Supreme Bar 
Council No 1 
from 2004. 

Bulgaria 

Croatia 

Lawyers costs are 
part of the costs, 
but limited 
according to the 
tariff. 

The Tariff 
determines the 
manner of 
evaluation, 
calculation and 
payment of legal 

the judge to assess the amount of the 
allowance within this range 

allowances, (e) travel 
and subsistence costs 
for members of the 
national legal service, 
registrars and parties, 
(f) case preparation 
allowance, and (g) 
fees, emoluments and 
costs of a mediator. 

Civil law: The fees are 
paid before the 
proceedings begin or the 
required actions are 
performed. The fees are 
fixed as an exact sum or as 
a percentage of the 
claimed amount. 

Criminal law: The costs 
must be deposited in 
advance by the private 
complainant (according to 
the Criminal Procedure 
Code). If they are not 
deposited, he or she must 
be given seven days to 
deposit them. 

Civil law: In general, each 
party bears its own costs 
during the proceedings. 

Yes  

Yes. 

Common to all these costs is that 
their compensation by the opposing 
party in the dispute depends on the 
success of the proceedings.  

In principle, each party pays the costs 
caused by its actions (Article 152 of 
the LCP), while upon completion of 
the proceedings, the party to the 
dispute who succeeds in the dispute 

 
 
 
 
 
 
 
 
 
 
 
services and 
expenses that the 
parties are 
obliged to pay to 
the lawyer or law 
firm for actions 
performed by 
power of attorney 
or decision of the 
competent 
authority. 

The Tariff on 
Remuneration 
and 
Reimbursement 
of Attorneys' Fees 
specifically 
regulates the 
issue of 
reimbursement of 
costs for various 
types of 
proceedings 
(criminal and 
misdemeanor, 
litigation, etc.). 
For each 
performed action, 
the lawyer is 
obliged to adhere 
to the Tariff and 
is obliged to issue 
an invoice to the 
party. 

The tariff may be 
increased by the 
lawyer for 
specialist 
knowledge 
required (up to 
100%) or lowered 
for 50% 
depending on 
specific 
circumstances.  
Fees for legal 
services are set on 
the basis of a 
scale of court 
costs approved by 
the Supreme 
Court. The 
advocate can 
agree on a higher 
fee with the 
client.  

Cyprus 

will be entitled to reimbursement of 
the costs of the proceedings in full 
(Article 154 of the LCP). And).  

But here, too, it should be borne in 
mind that these costs were necessary 
for the conduct of the litigation, 
because that party is entitled to 
reimbursement only of these costs 
(Article 155 of the LCP). 

In the case of partial success in the 
proceedings, the court may, in view 
of the success achieved, order that 
each party bear its own costs or that 
one party reimburse the other and the 
intervener a proportionate share of 
the costs. The court may decide 
that one party shall reimburse all 
costs incurred by the opposing 
party and its intervener if the 
opposing party has failed only in a 
relatively insignificant part of its 
claim and no special costs have 
been incurred as a result of that 
part.  

The two basic principles that 
accompany the decision on the costs 
of litigation are the principle of 
success (causae) and the principle 
of guilt (culpe). 

--> The Court order concerning the 
costs should be issued by the end of 
the main hearing or 15 days after the 
end.  

Yes. As a rule, the losing party pays 
the other side’s costs, although the 
question of costs is at the discretion 
of the court, which may order 
otherwise.  

Initial costs for court fees 
are prescribed on the basis 
of the scale of the petition 
or some other procedure 
and are paid when the 
petition is filed. Court fees 
are not prescribed as a 
specific sum; they depend 
on how the case proceeds 
and are calculated on the 
basis of an approved scale. 

Czech 

The Regulation of  Fixed fees apply in 

Costs must be paid within  No - It is up to the judge to decide (in 

 
 
 
 
 
 
 
 
 
 
 
three days of the date of 
notification, before the 
first hearing takes place. 

their final decision) in each specific 
case; the judge may order the losing 
party to pay all or part of the costs. 
However, this does not apply in 
divorce proceedings. Orders for costs 
may also cover the lawyer’s costs. 

As noted above, the 
claimant must pay a court 
fee on submitting the 
claim. 
The fee for the court 
hearing must be paid by 
the time the date of the 
hearing is set, but at the 
earliest three months 
before the hearing. 

Yes - As a general rule, the losing 
party must pay the winning party's 
costs. However, if special 
circumstances so require, the court 
may decide that the losing party need 
not pay the winning party's costs, or 
must pay only a proportion of such 
costs. 
Only costs necessary for the proper 
handling of the case can be awarded. 

Republic 

Denmark 

the Ministry of 
Justice No. 
177/1996 Sb. of 
4th June 1996 
deals with the 
fees and 
remuneration 
payable to 
lawyers for the 
provision of legal 
services (the 
lawyers’ tariff). A 
lawyer’s fee is 
regulated by a 
contract between 
the lawyer and 
the client, where 
it is not set by the 
contract, it is 
regulated by the 
said Regulation. 
Where a client is 
awarded 
compensation of 
costs of 
proceedings by 
the decision of a 
court or any other 
body, the amount 
of the lawyer´s 
fee shall be set in 
compliance with 
provisions for 
non-contractual 
fees.  
In principle there 
is no regulatory 
framework 
governing fees 
charged by the 
legal professions. 
However, the 
High Court 
(landsret) has 
established 
guidance rates, 
which can be 
consulted by the 
public. Anyone 
can submit a 
complaint about a 
lawyer's fee to the 
Disciplinary 
Board of 
Lawyers. 

some cases; in others, 
the fee payable is 
calculated on the basis 
of a percentage. 
Orders for costs may 
also cover the 
lawyer’s costs. 

The court pays the 
fees of experts it 
appoints, as well as 
translators and 
interpreters. The 
contending parties are 
responsible for an 
expert’s fees only 
when they themselves 
request the services of 
an expert. In certain 
specific cases, the 
court may decide that 
the losing party 
should pay an expert's 
fee. 

Danish law requires 
the claimant to pay a 
court fee for 
submitting the claim. 
As a starting point, the 
fee is set at DKK 500. 
Where the sum 
claimed is more than 
DKK 50 000, the fee 
is DKK 750, plus 
1.2% of the amount 
by which the sum 
claimed exceeds DKK 
50 000. 
Where the sum 
claimed is more than 
DKK 50 000, an 
additional hearing fee 
is payable for the 
court hearing. This fee 
is the same as the fee 
paid when the claim is 
submitted. For the 
court hearing too, 
therefore, the claimant 
must pay DKK 750 

 
 
 
 
 
 
 
 
 
plus 1.2% of the 
amount by which the 
sum claimed exceeds 
DKK 50 000. 
An upper limit of 
DKK 75 000 is set for 
each of the two types 
of court fee (the fee 
for submission of the 
claim and that for the 
court hearing). In 
some cases (for 
example, those 
relating to the exercise 
of public authority), 
the upper limit is only 
DKK 2 000. 
In some types of civil 
case, including those 
involving family law, 
there are no fees 
payable to the court. 

The fixed costs 
incurred by litigants in 
civil proceedings are 
set on the basis of 
Sections 139–144 of 
the Code of Civil 
Procedure and are 
divided into judicial 
costs and extra-
judicial costs. Judicial 
costs consist of State 
fees, security and the 
costs of reviewing a 
case. At each instance, 
the court keeps a 
record of the 
procedural costs 
involved, including 
the costs of reviewing 
a case. 

Estonia 

The fees of legal 
advisers, lawyers, 
attorneys-at-law 
and advocates are 
not regulated in 
Estonia.  

Bailiffs’ fees are 
regulated in 
Estonia by the 
Bailiffs Act. A 
bailiff’s fee may 
consist of a fee 
for initiating 
proceedings, the 
principal fee for 
the proceedings 
and an additional 
fee for 
enforcement 
activities. A 
bailiff also has 
the right to charge 
a fee for the 
provision of a 
professional 
service. 

The following costs must 
be paid in advance by the 
party applying for 
proceedings to be initiated 
or procedural acts to be 
carried out: 
- 
- 

- 

- 

- 

- 

- 

the State fee; 
security on 
cassation; 
security for a 
petition to set 
aside a default 
judgment; 
security for the 
reopening of 
proceedings or to 
reset the term; 
the costs of 
bailiffs 
forwarding 
procedural 
documents; 
the costs of 
publishing 
summonses or 
notices in the 
official 
publication 
Ametlikud 
Teadaanded 
(Official 
Announcements) 
or in a 
newspaper; 
other costs of 
reviewing a case, 
to the extent 
determined by a 

Yes  -  The  successful  party  bears  the 
legal 
remunerating 
costs  of 
representative  or  adviser  for  those 
costs  considered  by  the  court  to  be 
reasonable and not to be borne by the 
unsuccessful party. 

the 

to 

the 

judgment  on 
According 
determining  procedural  costs, 
the 
unsuccessful  party  must  reimburse 
the  procedural  costs  borne  by  the 
successful party, which may include: 
- 
- 
- 

relating 

interpreters 

the State fee; 
security; 
to  witnesses, 
costs 
experts, 
and 
translators,  and  the  costs  of  an 
expert  analysis  carried  out  by  a 
person  who  is  not  a  party  to  the 
proceedings and which are to be 
reimbursed  under  the  Forensic 
Examination Act; 
costs  of  obtaining  documentary 
and physical evidence; 
inspection 
necessary 
incurred by the court; 
costs  of  delivering,  forwarding 
and 
procedural 
documents; 
costs of determining the value of 
the civil case; 
costs 
the 
representatives  and  advisers  of 
the parties to the proceedings; 
travel,  postal,  communications, 
accommodation 
other 
similar expenses incurred by the 

including 
expenses 

costs, 
travel 

relating 

issuing 

and 

to 

- 

- 

- 

- 

- 

- 

 
 
 
 
 
court. 

Unless the court rules 
otherwise, the fees charged 
by experts, interpreters and 
translators are to be paid in 
advance by the party to the 
proceedings who 
submitted the application 
resulting in the costs. 
The court sets out the 
definitive procedural costs 
to be recovered and 
awarded in its final 
decision in the main case 
or in a ruling after that 
final decision has entered 
into force. 

- 

- 

- 

- 

- 

- 

- 

parties  to  the  proceedings  in 
connection with the proceedings; 
earnings  or  other  permanent 
income  not  received  by 
the 
parties to the proceedings; 
costs  of  pre-trial  proceedings 
laid  down  by  law,  unless  the 
action  was  filed  later  than  6 
months  after  the  end  of  the  pre-
trial proceedings; 
the  bailiff’s  fee  for  securing  an 
action and the costs of executing 
a  ruling  on  the  securing  of  an 
action; 
the  bailiff’s  fee  for  the  delivery 
of procedural documents; 
an 
processing 
costs 
of 
application 
procedural 
for 
assistance  in  bearing  procedural 
costs; 
costs of the accelerated order for 
payment procedure; 
costs 
in 
of 
conciliation  proceedings  if  the 
court  has  required  the  parties  to 
participate under Section 4(4) of 
the  Code  of  Civil  Procedure  or, 
if 
are 
mandatory,  pre-trial  conciliation 
proceedings  under  Section  1(4) 
of the Conciliation Act. 

participating 

proceedings 

the 

The  party  to  the  proceedings  who  is 
required  to  pay  the  procedural  costs 
of the party to the proceedings who is 
entitled 
of 
procedural costs will only be ordered 
to  pay  those  costs  that  are  necessary 
and justified. 

reimbursement 

to 

Costs must be paid at the 
end of the proceedings. 

Yes - As a general rule, the costs in 
civil justice cases are borne by the 
losing party (exceptions include 
matters involving petitions and 
matters involving imperative 
provisions of the law, such as many 
family law issues). In administrative 
courts, each party must bear her or 
his own costs. The court’s judgment 
will state whether the losing party is 
required to pay the winning party's 
cost. 

In Finland, fixed costs 
include processing 
charges and 
document charges. 
Processing charges 
(trial charges, petition 
charges, delivery 
charges) are collected 
from a party as 
compensation for 
hearing a case and the 
measures taken in the 
process. The 
processing charge also 
covers the delivery of 
the official instrument 
containing the 
decision or interim 
decision in the case. 
The trial charge varies 
from €79 in civil 

Finland 

Barriste

- 
rs (including 
solicitors and 
lawyers) 
In Finland, 
barristers’ fees 
are regulated by 
the Rules of 
Proper 
Professional 
Conduct for 
Advocates and 
the Fee 
Guideline, 
approved by the 
Finnish Bar 
Association. 
- 
In Finland, 
bailiffs’ fees are 

Bailiffs 

 
 
 
 
 
 
regulated by 
Government 
Decree 925/2008, 
the Act on 
Enforcement Fees 
(34/1995) and 
Government 
Decree 35/1995. 
- 
Advocat
es 
In Finland, 
advocates’ fees 
are regulated by 
the Code of 
Commerce 18:5, 
the Legal Aid Act 
(257/2002) and 
Government 
Decree 290/2008. 

matters in district 
courts to €223 in 
market court cases. 
Document charges 
(extract charges, copy 
charges, certificate 
charges) are collected 
for specifically 
requested documents, 
unless a statutory 
exemption from 
charges is in effect. 
For instance, there is 
no charge for 
documents issued to 
the injured party in a 
criminal case pursued 
by the public 
prosecutor. 
Details on costs are 
available on the 
Justice website and in 
the Act on court 
charges (Act on the 
Charges for the 
Performances of the 
Courts and Certain 
Organs of Judicial 
Administration 
701/1993) and the 
corresponding 
Decrees of the 
Council of State. 
In divorce cases, the 
total trial charge 
consists of an initial 
charge of €79 and a 
charge of €44 for 
continued proceedings 
after the 
reconsideration 
period. An advocate’s 
assistance may cost 
approximately €1000. 
In matters involving 
petitions, the charge is 
€72. In civil law 
cases, the trial charge 
is €79 to €179 in the 
district court and 
another €179 if an 
appeal is made before 
the Court of Appeal. 
Advocates’ costs can 
be up to and in excess 
of €6000. 
Stage of the civil 
proceeding where 
fixed costs for 
litigants must be 
paid 

 
 
 
France 

Civil proceedings costs 
include all sums paid out 
or owed by the parties 
before or in the course of 
an action. 
These are for example, 
before the opening of the 
proceedings, the costs of 
consulting legal advisers, 
technical specialists and 
travel costs. 
In the course of the 
action, these costs may 
concern the costs of 
proceedings paid to 
officers of the court or 
court officials, fees paid 
to the State and 
consultancy fees.  
After the proceedings, 
they may concern the costs 
of enforcing the judgment. 

Yes - In civil matters, any judgment 
or decision that brings an end to an 
action must make a ruling on the 
costs incurred in the proceedings. 
As a general rule, costs (fixed fees – 
see above) are payable by the losing 
party. However, the court may in a 
reasoned judgment order the other 
party to pay some or all of those 
costs. 
A party may also request that the 
opponent bear all or part of the 
charges incurred, and which are not 
included in the costs. These 
concern, for example, the lawyer’s 
advocacy fees, the fees for the 
process server’s report and travel 
expenses. If this happens, the court 
can order the party required to pay 
the costs, or in default the losing 
party, to pay the other party an 
amount which the court determines 
to cover the expenses incurred and 
not included in the costs. The court 
will have regard to principles of 
fairness and the financial 
circumstances of the party ordered to 
pay. The court may, of its own 
motion, state that there are no 
grounds for making such an order for 
reasons based on the same 
considerations. 

Fixed costs for 
litigants in civil 
proceedings must be 
paid at the end of the 
proceedings. 

In civil matters, there 
are fees that are 
legally indispensable 
in order to pursue an 
action, and their 
amount has been set 
either by legislation or 
by order of the court. 
These fees are known 
as costs.  
They comprise: 
  Fees, charges, 
taxes or levies 
paid to court 
offices or the tax 
authorities (these 
fees or levies are 
rare since Law 
no. 77-1468 of 30 
December 1977 
established the 
principle of free 
public service 
with regard to the 
civil and 
administrative 
courts);  
  The costs of 

translating 
documents, where 
this is required by 
statute or by an 
international 
undertaking; 

  Witness 

expenses; 

  Remuneration of 

technical 
specialists;  

  Fixed outlays 

(fees for process 
servers, court 
advocates, 
lawyers); 
  Emoluments for 

court or public 
officials; 

  Remuneration of 
lawyers in so far 
as this is 
regulated, 
including 
pleadings and 
advocacy fees; 

 

The rates are 
made up of fixed 
fees and variable 
fees (often as 
percentage of the 
value of the 
dispute). A 
distinction 
should be made 
between: 
 

officers of 
the court 
(lawyers and 
legal 
representativ
es), whose 
remuneration 
is only 
partially 
fixed; for the 
most part, 
fees are 
agreed freely 
with the 
client.  
court or 
public 
officials, 
whose 
remuneration 
is fixed by 
the 
regulatory 
framework of 
the French 
government.  
Court 

- 
advocates 
Decree no. 80-
608 of 30 July 
1980 sets the 
rates for court 
advocates at the 
Courts of Appeal. 
Officers of the 
court / Lawyers. 
Regulations set 
the rates for 
lawyers 
representing 
parties at first 
instance (Decree 
no. 72-784 of 25 
August 1972 and 

 
 
 
 
 
no. 75-785 of 21 
August 1975). 
Court appointed 
process servers 
The rates for 
court appointed 
process servers to 
serve claim 
forms, notices of 
application and 
court orders are 
dealt with in 
decree no. 96-
1080 of 12 
December 1996. 

Germany 

Lawyers’ fees are 
charged either in 
accordance with 
the Lawyers’ 
Remuneration 
Act 
[Rechtsanwaltsve
rgütungsgesetz] 
(RVG) or on the 
basis of fee 
agreements. In 
principle, fee 
agreements are 
always possible 
as an alternative 
to the statutory 
charges. 
However, if the 
lawyer represents 
the client in court, 
the agreed fees 
cannot be less 

  Costs incurred in 

 

serving a 
document abroad; 
Interpreting and 
translation costs 
made necessary 
by evidential 
enquiries carried 
out abroad at the 
request of the 
courts under 
Council 
Regulation (EC) 
No 1206/2001 of 
28 May 2001 on 
cooperation 
between the 
courts of the 
Member States in 
the taking of 
evidence in civil 
or commercial 
matters; 
  Social welfare 

reports ordered in 
family matters 
and wardship 
proceedings for 
adults and 
minors; 

  Remuneration of 
the person 
appointed by the 
courts to 
represent the 
interests of the 
child. 

Usually, the court 
receives a court fee, 
calculated according 
to the value of the 
claim. In civil cases it 
is determined by the 
Court Costs Act 
[Gerichtskostengesetz
] (GKG] and the Court 
Costs (Family 
Matters) Act [Gesetz 
über Gerichtskosten in 
Familiensachen] 
(FamGKG). The 
amount of the fees 
depends on the matter 
under dispute (e.g. 
marital matters or 
matters relating to 
children). 

 
 
 
 
 
 
Greece 

than those laid 
down by law. 
Lawyers' fees are 
generally 
regulated. 
Lawyers may also 
agree on fees with 
clients in writing, 
with no legally 
set minimum or 
maximum fee. 

In the absence of 
a written 
agreement, a 
legally 
established 
system of fees 
(for appearing in 
court and based 
on the amount at 
issue) determines 
court costs, 
lawyers' fees for 
legal aid, etc. 

Lawyers agree 
with their clients 
on when their 
fees will be paid. 
Generally, these 
fees are paid in 
instalments as 
proceedings 
progress. 

Hungary  As a general rule, 
an attorney’s fee 
is set by 
agreement 
between the party 
and the attorney. 
If no settlement is 
reached, the fee is 
decided by the 
court on the basis 
provided in law 
(5 percent of the 
claimed amount 
and at least 
10,000 HUF [27 
EUR]). The 
parties can ask 
the judge to apply 
the fee stipulated 
by law if they do 
not want the 
settlement to 
become public. 
The basis on 
which fees are 

Ireland 

Yes - Once a court issues a decision, 
the legal costs and expenses incurred 
by the winning party generally 
become payable by the losing party, 
depending on the extent of each 
party's victory or loss. The court 
must also make this part of the 
decision enforceable. Expenses and 
costs are calculated according to the 
above rules, with particular 
consideration for provisions on legal 
professionals’ fees and possible fixed 
costs for litigants in civil 
proceedings. The calculated amount 
is generally less than actual costs. 

Yes - In its final decision, the court 
requires that the losing party pay the 
costs incurred by the winning party 
within a period of 30 days.  

The obligation to pay court 
duties in civil proceedings 
arises when the request 
for litigation is made. 
Therefore, the court duties 
must be paid together with 
the request of litigation. If 
the party does not pay the 
court duties, or pays less 
than is required by law, the 
court must ask him/her to 
pay the remaining court 
duties on submission of 
the request.  

In first instance cases, 
the fee for court 
proceedings is 6 
percent of the value of 
the claim, there are 
specific rules for 
different types of 
actions (e.g., divorce, 
appeal). As a general 
rule, the experts’, 
translators’, 
interpreters’ fees are 
paid by the losing 
party, and if (in 
specific cases) the 
state is responsible for 
paying the costs, it 
also bears these costs.  

With the exception of 
the items set out in 

In the cases of Order 27 
rule 1A(3) and rule 9 

The award of costs is at the 
discretion of the courts. The exercise 

 
 
 
 
 
 
 
 
 
of that discretion has to be carried 
out in accordance with certain well 
established rules and principles 
derived from case law of the courts. 
For example, the primary rule is that 
costs follow the event, i.e., the losing 
party pays the winning party's costs. 
This is however subject to exceptions 
which will depend upon the 
circumstances of the case. For 
example the winning party may not 
get all of his costs if he has been 
considered by the court to have 
delayed or unnecessarily prolonged 
the proceedings or while winning the 
case may have lost on certain discrete 
issues within the case. In certain 
cases such as cases involving 
constitutional issues and raising 
matters in the public interest the 
losing party may obtain some or all 
of his costs. 

Order 27 rule 1A(3) 
and rule 9 (costs 
payable by a party 
lodging a pleading 
after other party has 
brought application 
for judgment in 
default of lodgement 
of that pleading) and 
Appendix W, Rules of 
the Superior Courts 
and Schedule E, 
District Court Rules, 
costs items are 
generally 
discretionary. 

Costs payable also 
include disbursements 
such as court fees, 
which are fixed by the 
Fees orders of the 
Supreme and High 
Court, Circuit Court 
and District Court, 
respectively. 

payable to 
solicitors may be 
categorised in 
terms of 
contentious 
business (i.e. 
advice and 
representation in 
respect of 
litigation before a 
court, tribunal or 
arbitrator) and 
non-contentious 
business. Insofar 
as contentious 
business is 
concerned, costs 
may be further 
categorised as 
solicitor and 
client costs (i.e. 
costs payable by 
the party to his or 
her solicitor) and 
party and party 
costs (i.e. costs 
which are 
awarded to one 
party to 
proceedings 
against another 
party to those 
proceedings). 

Barristers fees are 
treated as a 
disbursement by 
the solicitor to 
whom they are 
invoiced, and as 
such are regarded 
as a disbursement 
by the solicitor 
and are regulated 
by the legislation 
governing 
solicitors’ fees 
and decisions of 
the courts 
concerning the 
allowance to be 
made for 
counsels’ fees. 

The fees of the 
sheriff, court 
messenger and 
bailiffs for 
execution of 
execution orders 
of the court are 

(costs payable by a party 
lodging a pleading after 
other party has brought 
application for judgment in 
default of lodgement of 
that pleading) , the costs 
are payable on striking out 
of the application for 
judgment in default of the 
pleading concerned. 
The costs items set out in 
Appendix W, Rules of the 
Superior Courts, are 
recoverable: 
 

by the solicitor from 
the client on receipt of 
the bill of costs one 
month after receipt of 
the bill if the client 
has not within that 
time sought taxation 
(assessment) of the 
bill (section 2, 
Attorneys’ and 
Solicitors’ Act 1849). 
However, the client 
has in any event a 
period of twelve 
months from receipt 
of the bill within 
which to demand and 
obtain taxation. After 
the expiry of twelve 
months or after 
payment of the 
amount of the bill, the 
Court may, if the 
special circumstances 
of the case appear to 
require it, refer the bill 
to taxation, provided 
the application to 
Court is made within 
twelve calendar 
months after payment; 

  where one party is 

awarded costs against 
another party, on the 
issue of a certificate of 
taxation of the costs or 
in accordance with 
any agreement 
reached between the 
parties for payment. 
The costs items set out in 
Schedule E, District Court 
Rules, are payable: 
  where judgment in 

default of defence is 
given, by the party in 
default on the issue of 

 
 
 
 
 
 
 

the judgment in 
default 
in the case of other 
costs, by the party 
against whom the 
court has awarded 
costs , on the issuing 
by the court of the 
decree for such costs. 

In civil proceedings, 
each party — in 
addition to bearing the 
costs of his lawyer’s 
fees — is to pay the 
costs of the acts which 
it carries out and 
advances the costs of 
the acts necessary for 
the proceedings when 
the law or the 
magistrate charge 
them (Article 8 of the 
Consolidated Law on 
the costs of justice). 

The fees in civil 
action are as follows: 
the standard fee, the 
service at the request 
of the office, the costs 
of notifications, the 
copy and certificate 
rights.  

Italy 

regulated by the 
Sheriff's Fees and 
Expenses Order, 
2005 and include 
provision for fees 
chargeable on 
lodgement of the 
execution order 
and poundage, 
expenses of 
travelling, 
removal and 
storage 
/safekeeping of 
goods or 
livestock seized. 
Lawyers 
The rules 
governing the 
costs of 
proceedings are 
laid down in the 
Consolidated 
Text of the laws 
and regulations 
on legal costs 
referred to in 
Presidential 
Decree No 115 of 
30 May 2002, 
with the 
amendments most 
recently 
introduced by 
Decree-Law No 
83 of 27 June 
2015, converted, 
with 
amendments, into 
Law No 132 of 6 
August 2015, 
Legislative 
Decree No156 of 
24 September 
2015 and Law No 
208 of 28 
December 2015, 
and in the new 
Law on Legal 
Profession (Law 
No 247/2012, or 
‘L.P.F.’), as 
supplemented by 
Ministerial 
Decree No of, 
which replaced 
Ministerial 
Decree No of, 
and in the new 
Law on Legal 
Profession (Law 

Yes - In civil matters, Articles 91 to 
98 of the Code of Civil Procedure 
deal with the award of costs. 

By the judgment closing the 
proceedings before it, the court shall 
order the unsuccessful party to 
reimburse the costs to the other party 
and shall pay the amount thereof 
together with the defence fees. 

If it upholds the claim to an extent 
which does not exceed any proposed 
settlement made by the court in the 
course of the proceedings, it shall 
order the party who has unjustifiably 
refused to pay the costs incurred after 
the proposal has been made, unless 
the conditions for set-off are satisfied 
(each party’s unsuccessful party, the 
absolute novelty of the matter being 
dealt with, or a change in the case-
law in relation to the relevant 
questions). 
In making the order referred to in the 
preceding article, the court may rule 
out the recovery of the costs incurred 
by the successful party if it considers 
them to be excessive or unnecessary; 
and may, irrespective of the 
unsuccessful party, order a party to 
pay the costs, even those which are 
not recoverable, which, by reason of 
a breach of the duty of loyalty and 
probity, have caused the other party 
to pay the costs. 
If there is a mutual loss or if the 
matter at issue is completely new or 
the case-law has changed in relation 
to the relevant questions, the court 
may order that the parties bear some 
or all of the costs. 
If the parties have agreed, the costs 
shall be deemed to be shared, unless 
the parties themselves have agreed 

 
 
 
 
 
 
 
 
Latvia 

No 140/2012, or 
‘L.P.F.’), as 
supplemented by 
Ministerial 
Decree No 
55/2014 (which 
replaced 
Ministerial 
Decree No). 
‘Determination of 
the parameters for 
the payment of 
fees for the legal 
profession in 
accordance with 
Article 13 (6) of 
Law No 247 of 
31 December 
2012’, in force 
since 3/4/2014. 

Bailiffs 
The fees for the 
services of 
certified bailiffs 
(zvērināti tiesu 
izpildītāji) are 
determined in line 
with the statutory 
rates. Agreeing 
on a fee that 
differs from the 
statutory rate is 
prohibited. 

Lawyers 
Except in cases 
where the state 
provides legal 
aid, there is no 
fixed fee for the 
services provided 
by certified 
lawyers (zvērināti 
advokāti) in 
Latvia; the lawyer 
agrees on a fee 
with the client. 
Pursuant to 
Section 57 of the 
Lawyers Act 
(Advokatūras 
likums), certified 
lawyers conclude 
a written 
agreement with 

Fixed costs for 
litigants include state 
fees, a chancery fee, 
and costs associated 
with the examination 
of the case. 

otherwise in the conciliation report. 
If it is established that the 
unsuccessful party has acted or has 
been resisted by bad faith or gross 
negligence, the court shall, at the 
application of the other party, order 
the party to pay the costs and pay 
damages, which it shall pay, of its 
own motion, in the judgment. The 
court which finds that there is no 
right in respect of which a protective 
measure has been enforced, 
transcribed the document instituting 
the proceedings or registered as a 
mortgage, or where enforcement has 
been initiated or completed, on the 
application of the injured party, the 
plaintiff or the creditor seeking 
damages, who acted without normal 
caution. 
In any event, where the court makes 
an order for costs, it may also, of its 
own motion, order the unsuccessful 
party to pay to the other party a sum 
determined in an equitable manner. 

Yes - A party in whose favour a 
judgment is delivered can recover 
from the other party all the court 
costs they have paid. If a claim is 
upheld in part, the costs can be 
recovered in proportion to the extent 
of the claims accepted by the court. 
The defendant will be reimbursed in 
proportion to the part of the claim 
dismissed in the action. Where 
judgment is delivered by default, 
state fees for an application for the 
reopening of court proceedings and a 
fresh adjudication of the matter will 
not be reimbursed. 
If the plaintiff’s application is upheld 
in whole or in part, the defendant will 
be ordered to make good, to the 
extent provided for by law, the costs 
incurred by the plaintiff in bringing 
the action, such as lawyers’ fees, 
expenses in connection with 
attendance at court, or expenses in 
connection with the gathering of 
evidence. If the application is 
dismissed, the court will order the 
plaintiff to make good the costs 
incurred by the defendant in 
defending the action. 

 
 
 
 
 
 
the client that 
provides that the 
lawyer will act 
for the client in 
the case and sets 
the relevant fee. 
In the event of a 
dispute where 
there is no written 
agreement, the 
amount 
chargeable for the 
lawyer's fees can 
be set at double 
the amount laid 
down in the 
legislation on the 
payment of state 
legal aid, and 
other expenses 
can be 
determined 
subject to the 
limits laid down 
in that legislation. 
Section 12 of the 
Lawyers Act 
provides that in 
the cases laid 
down by law the 
state will cover 
the fees of 
lawyers and other 
related expenses. 
The legislation 
governing state 
legal aid (the 
State Legal Aid 
Act (Valsts 
nodrošinātās 
juridiskās 
palidzības 
likums) and the 
Criminal 
Procedure Act) 
(Kriminālprocesa 
likums)) lays 
down the 
circumstances in 
which legal aid 
may be granted, 
in civil cases, 
administrative 
cases and 
criminal cases, 
the assistance 
given being paid 
for by the state. 
The costs and 
expenses of 
providers of legal 

 
 
aid are covered 
by the state 
pursuant to 
Cabinet 
Regulation No 
1493 of 22 
December 2009 
laying down rules 
on the scope of 
state legal aid, the 
amount of 
payment, related 
expenses and the 
procedure for 
payment thereof. 
The regulation 
lays down fixed 
fees (a certain 
amount or hourly 
rate) that the state 
pays to legal aid 
providers in line 
with the 
established 
procedure. See 
also the replies to 
questions below. 

Lithuania  Lawyers 

Lawyers' fees are 
not regulated in 
Lithuania. They 
vary according to 
the level of 
complexity of the 
case and of the 
resources 
involved. 
However, fees 
may not be 
superior to the 
maximum amount 
established by 
recommendations 
approved by the 
Minister for 
Justice and the 
Chairman of the 
Council of the 
Lithuanian Bar 
Association 
(Lietuvos 
advokatų tarybos 
pirmininkas). 

Bailiffs: Bailiffs 
play a role only if 
the debtor does 
not comply with 
the judgment and 
legally 

Stamp duty is normally 
paid before presenting a 
claim to the court. 

?- The amounts paid to experts and 
expert institutions must, when no 
surety has been collected, be charged 
to the court’s special account and 
paid by the party against whom 
judgment was made, or by the parties 
in proportion to the magnitude of the 
claims allowed and dismissed. 

In civil proceedings, 
litigation costs 
comprise stamp duty 
and other costs: legal 
representation, 
delivery of court 
documents, experts’ 
or witnesses’ fees, 
execution, etc. Stamp 
duty is, where 
applicable, defined in 
the Code of Civil 
Procedure and is 
fixed. Litigation costs 
are defined in section 
VIII of the Code of 
Civil Procedure 
(Civilinio proceso 
kodeksas). 

 
 
 
 
enforceable 
documents have 
to be produced. 
The fees, their 
payment and 
exemption from 
enforcement costs 
are regulated by 
the Instructions 
for executing 
judgements. All 
enforcement costs 
must be paid by 
the judgment 
creditor. The 
bailiff’s fees are 
to be recovered 
from the debtor 
during or after the 
execution of the 
judgment. 
The amount of 
the fees depends 
on the type of 
enforcement 
required and the 
number of times 
it is provided. 
Some 
enforcement costs 
are fixed: some 
cost LTL 60 per 
hour and some 
are determined 
based on a 
percentage of the 
value of the assets 
subject to 
enforcement. 

A lawyer’s total 
fees and 
professional 
expenses are set 
by the lawyer. 
When 
determining their 
fees, lawyers take 
the different 
elements of the 
case file into 
consideration, 
such as the 
importance of the 
case, the level of 
difficulty, the 
result achieved 
and the client’s 
financial 
situation. Where 
the amount 

Luxembou
rg 

In principle, no court 
costs are incurred in 
the civil courts.  

 Following judgment, there 
may be costs incurred to 
enforce the decision at the 
request of the successful 
party. 

No. Each party, even if it wins the 
case, must bear all its own legal 
costs. 
The judge may, however, 
exceptionally and on express request, 
order the party who loses the case to 
pay the other party a procedural 
indemnity. But the amount is often 
symbolic and covers only part of the 
lawyer's fees. 

 
 
 
Malta 

Netherland
s 

calculated is 
found to be 
excessive, it may 
be lowered by the 
Bar Council. 
The fees charged 
by lawyers are 
regulated by 
Tariff E of 
Schedule A 
annexed to the 
Code of 
Organisation and 
Civil Procedure 
(Chapter 12 of the 
Laws of Malta). 
Advocates are 
also guided by the 
Code of Ethics 
and Conduct for 
Advocates when 
establishing their 
fee: this is done 
either by the 
advocate himself 
or by agreement 
between him and 
his client. This 
Code of Ethics 
considers a fee to 
be reasonable if it 
in keeping with 
specific factors, 
such as the time 
required, the 
novelty and 
difficulty of the 
issues involved; 
responsibility 
undertaken, the 
time limitations, 
the nature and 
length of the 
professional 
relationship; the 
experience, 
reputation and 
ability of the 
advocate, the 
costs recoverable 
from the other 
party. 
With the 
exception of fees 
payable to those 
offering 
subsidised legal 
assistance, fees in 
the Netherlands 
are not regulated. 

Fixed costs for 
litigants vary 
depending on the 
nature of the case and 
whether it has a 
monetary value. 

Yes. The successful party normally 
recuperates all judicial costs provided 
that the judgment orders the 
unsuccessful party to pay the costs. 
The unsuccessful party has to pay the 
costs of the case and those of the 
successful party. 

Under the Court Fees 
(Civil Cases) Act 
(Wet griffierechten in 
burgerlijke zaken), 
parties in civil cases 
are required to pay 
court fees. Court fees 
are fees that must be 
paid to the court 

In civil cases, every 
claimant and defendant 
must pay fixed costs. 
Claimants must pay court 
fees as soon as their case is 
referred to a court, while 
defendants must pay court 
fees after appearing in 
court. 

- 

Yes - In civil cases, the winning 
party may incur the following costs: 
legal assistance (e.g. 
lawyers’ fees); 
remuneration or 
compensation of witnesses 
or experts; 
travel and accommodation 
expenses; and 

- 

- 

 
 
 
 
 
registry (the court’s 
administrative office) 
when your 
proceedings begin. 

The fee is the amount 
of money charged for 
every document 
presented to the court, 
where the law 
provides for such a 
fee. There are three 
different types of fees: 
variable, fixed and 
basic. 
The expenses include 
charges linked to the 
participation of the 
parties, witnesses and 
experts in the 
proceedings. Expenses 
may include the 
remuneration of 
interpreters and 
translators, costs of 
travel and 
accommodation, and 
remuneration for 
income lost by 
witnesses because of 
time spent in court. 
Other expenses 
considered are: 
remuneration of other 
institutions and 
persons, the 
examination of 
evidence, transport 
and safekeeping of 
animals and objects, 
time spent under 
arrest, and making 
announcements. 
Additionally, there are 
litigation costs. These 
consist of judicial 
costs, the costs of trial 
preparation and 
actions taken by the 
advocate or attorney 
at law to represent the 
client. 

Fixed costs are set out 
in Articles 5-7 and 
Tables I and II 
annexed to the 
Regulation on 

Poland 

Remuneration in 
individual cases 
is determined by 
agreement 
between the 
advocate and the 
client.  

Portugal 

Fees for legal 
advisers and for 
lawyers are not 
regulated. 

The court fees are charged 
when a document is 
presented to the court.  

The winning party must 
wait until sentencing 
before the costs can be 
reimbursed. The question 
of costs is decided in the 
last phase of a judicial 
proceeding, just before 
final judgement. 

- 

other legal and non-legal 
expenses. 

The losing party incurs the same 
costs as the winning party, but may 
also be ordered by the judge to bear 
the costs incurred by the winning 
party. 

Yes - The general rule is that the 
losing party must reimburse the 
successful party for costs that were 
reasonably incurred to safeguard the 
latter’s interests, unless provided 
otherwise. However, the amount 
granted by the judge (for the 
representation provided by the 
advocate) must respect the limit set 
out in the Regulation of the Minister 
of Justice on Fees for Advocates' 
Services of 28 September 2002. 
Therefore, the fee may not exceed 
the minimum rate multiplied by six, 
nor the value of the object of 
litigation. The amount of the fee also 
depends on the nature and objectives 
of the case and the stage of the 
proceedings. 

 Court fees are paid at the 
start of the proceedings 
and when the date is set 
for a court hearing. 

Yes. The successful party is entitled 
to compensation for cots, which is to 
be paid by the unsuccessful party in 
the proportion laid down by the 
judge, depending on the final ruling.  

 
 
 
 
 
 
Romania 

Slovakia 

Lawyers' fees are 
variable and 
determined 
according to the 
case's level of 
difficulty, size 
and duration. The 
level of fees may 
be agreed upon 
freely between 
the lawyer and his 
client, yet within 
the limits of the 
law and the 
Statute of the 
profession 

A lawyer’s fee 
must be 
determined by 
agreement 
between the 
lawyer and his or 
her client. The 
vast majority of 
all lawyers’ fees 
are agreed on a 
contractual basis, 
unless the law 
prescribes tariff 
fees. 

Slovenia 

Procedural Costs. 
- Cost of bringing an 
action to the courts - 
court fees (variable 
EUR 0.5 to over EUR 
1,500) 
and the stamp duty 
- Judicial Executors' 
fees 
- Translators or 
interpreters' fees - 
Experts' fees 

- court fees;  
- loss of earnings by 
the litigants and their 
counsels, 
- the costs of 
furnishing evidence 
(including experts’ 
fees),; 
- notaries’ 
compensation for 
services in their role 
as judicial 
commissioner, and 
their out-of-pocket 
expenses, 
- compensation for the 
administrators/executo
rs of inheritance and 
their out-of-pocket 
expenses;  
- 
translation/interpretin
g fees, 
- fees for 
representation – if a 
litigant is represented 
by a licensed lawyer 
registered with the 
Slovak Bar 
Association. 
- court fees, 
- attorneys’ fees, 
- experts’ fees, 
- translators' and 
interpreters' fees and 
travel costs (e.g. those 
of witnesses and 
experts) 

Court fees and Judicial 
Executors' fees must be 
paid in advance, 
interpretation fee is paid 
by a court-fixed fee, the 
official travel expenses or 
the interpreter‘s fee within 
5 days of the fixing of the 
fee are paid and experts’ 
fees are paid five days 
after the appointment of 
the judicial technical 
expert by the party 
requesting the expert or if 
the court so decides by 
both parties 

Only the court fee must be 
paid before the hearing 
begins. Other costs are 
usually paid after the court 
judgement has been 
rendered.  

Yes - The losing party is obliged 
(upon request) to pay the costs of the 
court proceeding; 
The judge cannot reduce the court fee 
or any other expenses paid by the 
winning party; In principle, a 
defendant who has admitted the 
plaintiff’s claim at the first hearing 
need not pay the judicial expenses, 
unless he or she was officially 
notified by the bailiff through the 
specialised prior- to-judgment 
procedure, previously presented 
above; 

No - A person may apply to the 
competent court for a full or partial 
exemption from court fees. The 
court may, on its own motion, 
award the (fully) successful party the 
costs necessarily incurred in the 
proceedings (including court fees). In 
the case of partial success, the court 
will award a portion of the costs of 
proceedings to each of the parties, 
and also may rule that none of the 
parties has the right to compensation 
for the costs of proceedings. 
However, the court may award the 
partially successful party full 
compensation for the costs of 
proceedings if the decision on the 
amount of the payments imposed to 
be made by such party depended on 
an expert opinion or the court’s 
discretion, or if the lack of success is 
related to a relatively negligible part 
of the proceedings. 

Civil law:  
Court fees are usually paid 
at the beginning of the 
proceeding when the 
application has been filed. 
In some cases, the fees are 
paid when the court hands 
down a decision (e.g. 
social matter disputes 
before first instance courts, 

Yes - the principle of success and the 
principle of fault (each party must 
request the compensation of costs, 
not ex officio, but it is part of the 
standard steps in the procedure). 

Note also that the system is almost 
the same as in Croatia. 

In civil proceedings, the unsuccessful 

 
 
 
 
 
 
 
 
 
land register proceedings, 
proceedings concerning 
first instance decisions on 
indemnities). 

In probate proceedings, the 
fee is paid at the end of the 
hearing – once the exact 
estate of the deceased is 
known. 

Attorneys’ fees must be 
paid after the court issues 
an order on the costs of the 
proceeding. Attorneys may 
request that a portion or 
the full amount of their 
fees be paid in advance, 
which is common practice. 

The party who suggests an 
examination of the 
evidence (e.g. by an expert 
or witness), or the use of 
the service of a translator 
or interpreter must pay 
these costs in advance. 

Clients are always required 
to pay fees to their lawyers 
and pay advances on fees 
to their legal 
representatives. Clients 
have a rough idea of the 
sum involved from the 
outset, but the exact 
amount of the bill has to 
be established once 
litigation has ended. 
Lawyers and legal 
representatives can claim 
payment from their clients, 
including through special 
procedures such as an 
advance on fees (provisión 
de fondos, while the 
proceedings last) or a final 
statement of accounts (jura 
de cuentas, once 
proceedings are 
concluded). 

In practice, what usually 
happens is that clients 
initially pay an amount in 
advance and then await a 
decision on costs. In cases 
where the other party has 
to pay the fees, lawyers 
and legal representatives 
present their fees to the 

party must refund the costs incurred 
by the successful party. Each party 
must cover costs resulting from their 
own fault or by coincidence. If none 
of the parties wins in full, the costs 
are divided proportionally.  

In criminal proceedings, the court 
will generally rule that the defendant 
reimburses costs, if found guilty. 

Yes. 
In actions for a full judgment, the 
costs of first instance are payable by 
a party whose claims have all been 
dismissed, unless the case raises 
serious matters de factor or de jure to 
be clarified.  

If claims are granted or dismissed in 
part, each party pays its costs and 
half the joint costs, unless there are 
grounds from imposing them on one 
of the parties because of reckless 
litigation.  

Where the costs are imposed on the 
losing party, he or she will be 
required to pay, for the part 
corresponding to lawyers and other 
legal professionals not subject to 
rates or scales, only a total amount of 
no more than one third of the sum at 
issue for each of the litigants that 
have secured the decision. For these 
purposes only, claims on which no 
value can be put will be valued at 
€18 000, unless the court determines 
otherwise because of the complexity 
of the case. 

The provisions in the preceding 
paragraph do not apply if the court 
declares that the litigant ordered to 

Spain 

Lawyers set their 
fees according to 
guidelines 
published by their 
professional 
association. 
These rules are 
based on general 
criteria for 
drawing up 
lawyers’ bills, 
such as the 
complexity of the 
case, 
proportionality, 
etc., and are 
followed by all 
lawyers when 
issuing their bills. 
These rules 
always 
distinguish 
between the 
separate court 
systems in which 
litigation takes 
place.  

Article 241(1)(1) of 
the Code of Civil 
Procedure (Ley de 
Enjuiciamiento Civil) 
specifically covers the 
fees charged by 
lawyers and legal 
representatives 
(procuradores) for 
cases where their 
assistance is 
mandatory. These fees 
are included as an 
item in calculating 
costs. 
The Code of Civil 
Procedure provides 
for lawyers to set their 
fees subject to the 
rules governing their 
profession.  

Since Law 10/2021 
came into force, a 
court fee must be 
paid, i.e. a natural tax 
that must be paid in 
certain cases by users, 
whether natural or 
legal persons, for 
going to court and 
making use of the 
public service of the 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
court, and once the fees 
are approved they are paid 
by the opposing party. 

The filing fee must be paid 
to the court when the 
application is made. 
However, the Legal Aid 
Act states that if legal aid 
has been granted the party 
should pay a legal aid fee 
to the legal representative 
once the costs arise. This 
fee is principally based on 
the party’s income. 

pay the costs has acted recklessly. 

Yes - As a rule, the losing party pays 
the winning party’s litigation costs. 
Compensation for litigation costs 
fully covers the costs of preparing for 
trial and of representation by the 
counsel in court, and the costs 
involved in presenting evidence 
(including witnesses and experts), 
provided that these costs were 
necessary to protect the party's 
interests. Compensation is also 
payable for the time and effort 
expended by the winning party on 
account of the trial. Negotiations 
aimed at settling the dispute which 
are directly related to a party's action 
are considered as measures taken for 
the preparation of the trial. 

Sweden 

Legal 
professionals’ 
fees are not 
regulated in 
Sweden. 
However, if legal 
aid is granted, an 
hourly fee rate 
determined by the 
government 
applies. In 2012, 
this rate is, in 
most cases, SEK 
1 205 exclusive 
of VAT (i.e. SEK 
1 506 inclusive of 
VAT). The Code 
of Conduct for 
Members of the 
Swedish Bar 
Association 
(advokater) states 
that fees charged 
by members of 
the Bar must be 
reasonable. 

administration of 
justice. 

For an application in a 
civil case, the 
applicant must pay a 
filing fee to the court. 
At present the filing 
fee is SEK 450 
(approximately EUR 
50). 
In cases where out of 
court settlement is 
permitted and the 
value of the claim 
obviously does not 
exceed half of the 
base amount 
prescribed in the 
National Insurance 
Act (the base amount 
for 2012 is SEK 44 
000; i.e. half the base 
amount for 2012 is 
SEK 22 000), 
compensation for 
litigation costs may 
not include other 
expenses, except for: 
  Costs arising 

from legal advice, 
which is 
restricted to one 
hour at a time for 
each matter dealt 
with; the fee 
charged 
corresponds to 
the amount 
payable for one 
hour of legal 
advice under the 
Legal Aid Act 
(1996:1619) 
  The application 

fee 

  Travel and 

subsistence costs 
incurred by the 
party or the 
party's legal 
representative in 
order to attend a 
court hearing or, 
if the party is not 
required to attend 
in person, the 
travel and 
subsistence costs 
incurred by the 

 
 
 
 
 
legal 
representative 

  Expenses 

incurred by 
witnesses  

  Translation costs.  
Compensation is 
granted only if the 
costs incurred were 
necessary in order to 
safeguard the interests 
of the party 
concerned. 
For other civil cases 
(i.e. where the value 
of the claim exceeds 
half of the base 
amount according to 
the National Insurance 
Act) no such 
limitations or fixed 
costs apply.