Lately, the phenomenon of highly effective companies and governments beginning lawsuits to focus on journalists and human rights defenders has captured a lot societal consideration, and the time period ‘Strategic Lawsuits in opposition to Public Participation’ (‘SLAPPs’) has turn out to be commonplace in authorized and political discourse. The rising consensus that SLAPPs are lamentable is fuelled additional by the simply digestible narrative presenting courageous truth-tellers as deserving of safety in opposition to dragging, costly lawsuits geared toward silencing them. ‘The synopsis of a foul and overly dramatic Netflix collection’, is how Greenpeace’s attorneys described a latest SLAPP. Nonetheless, on this case, the tables may flip. Following the adoption of the EU Anti-SLAPP Directive, the Amsterdam District Courtroom (‘ADC’) in July 2025 first heard Greenpeace’s claims for damages ensuing from a SLAPP. I argue that regardless of appreciable authorized obstacles, this case may characterize a breakthrough within the combat in opposition to SLAPPs.
Setting the stage
American oil big Vitality Switch (‘ET’) sued Greenpeace Worldwide (‘Greenpeace’) in 2017 over the latter’s help for the indigenous Sioux Tribe that protested development plans for a pipeline in North Dakota, USA, which endangered the Tribe’s entry to secure water. Though ET claimed in any other case, Greenpeace’s solely confirmed involvement is co-signing a letter with about 500 different civil society organisations (‘CSOs’) urging financiers to freeze funding till the Sioux’s calls for had been met. After fiery clashes between protestors and ET’s employed safety, the venture was seemingly cancelled. Nonetheless, then newly put in US President Trump, who obtained marketing campaign donations from ET’s CEO, issued an govt order to renew development. Nonetheless, ET sued Greenpeace and different signatories of the letter, and accused them, amongst different issues, of ‘extremism’. After years of litigation earlier than completely different courts, a North Dakota jury held Greenpeace liable in February 2025 for over $660 million. Greenpeace is interesting this judgment, however already suffered main authorized prices that won’t be reimbursed, whatever the end result of the enchantment.
To get well its prices, Greenpeace is countersuing within the Netherlands, which ET in flip tries to dam in US courts. Greenpeace’s declare comes within the wake of calls from the European Parliament, the Council of Europe, and the OECD to finish the rising menace of SLAPPs worldwide. Apart from political statements, the EU additionally took concrete motion by adopting the ‘Anti-SLAPP Directive’ 2024/1069 (‘the Directive’) as the primary binding authorized instrument in opposition to SLAPPs (see Eckes and Paiement on the principle parts and significance of the Directive).
Greenpeace understandably tries to achieve momentum for its lawsuit by presenting it as the brand new Directive’s first tour de drive. Nonetheless, it’s not simple whether or not this declare withstands authorized scrutiny. Within the the rest of this publish, I argue that this case shouldn’t be appropriate to judge the usual of safety that the Directive gives as of but, however that the adoption of the Directive may nonetheless have a vital affect on the end result of Greenpeace v ET, making this case a possible mannequin for future anti-SLAPP lawsuits within the EU.
The Directive’s Position
It will be legally unsound for Greenpeace to base its claims instantly on the Directive. Directives are addressed to Member States and can’t be invoked in opposition to personal events like ET. The EU legislator consciously selected to make use of this instrument moderately than a Regulation, which might have granted safety in opposition to personal events, to be able to afford Member States discretion in implementing the safeguards and never encroach on present divergences within the Member States’ nationwide procedural legislation. Furthermore, with the Directive’s implementation interval operating till Might 2026 (Article 22), Member States usually are not but obliged to ensure the Directive’s protections, and courts don’t but must interpret nationwide guidelines constantly with the Directive (Case C-212/04, Adeneler, para 135). A correct take a look at for the instrument, comparable to a lawsuit in opposition to a Member State for failing to grant the required protections to a sufferer, is subsequently not but attainable.
Whereas the Dutch authorities initiated laws to implement two particular guidelines of the Directive, it claims a lot of the Directive is in step with pre-existing Dutch legislation. The selection to not undertake complete implementing laws was criticised by CSOs (Greenpeace even dared to co-sign one other, this time not so controversial, letter to that impact). These CSOs argued that an specific authorized foundation in nationwide legislation would put anti-SLAPP protections past any doubt and thereby strengthen the preventative impact of the Directive.
Within the absence of such clear laws, the query of whether or not the ADC grants Greenpeace the protections it could get pleasure from if the Directive had been carried out verbatim is dependent upon pre-existing Dutch legislation and the ADC’s interpretation thereof. Though there exists no obligation to interpret Dutch legislation in accordance with the principles of the Directive, the Directive’s normative drive can nonetheless play a key position in guiding the ADC’s interpretation of the related norms of Dutch legislation. This shall be illustrated by highlighting two interpretation questions the ADC is confronted with on this case.
Jurisdiction
Arguably, probably the most difficult interpretation query issues jurisdiction. Greenpeace argues that, since it’s primarily based in Amsterdam and its damages had been paid from its Dutch checking account, the tort’s hurt occurred within the Netherlands, granting jurisdiction to Dutch courts. This reasoning aligns with Article 17(1) of the Directive. Nonetheless, as talked about earlier than, the Dutch authorities didn’t implement this provision, pointing as a substitute to Article 6(e) of the Code of Civil Process (‘Rv’), which grants Dutch courts competence in tort instances ‘if the incident inflicting the injury occurred or may happen in The Netherlands’. Dutch courts interpret this rule utilizing the CJEU’s interpretation of the equally worded Article 7 of the Brussels Ibis Regulation 1215/2012 as some extent of reference. The Dutch authorities, and in flip Greenpeace’s attorneys, asserted that the CJEU interprets Article 7 of the Brussels Ibis Regulation as permitting for jurisdiction when victims problem a SLAPP overseas, and thus Article 6(e) Rv does too.
As Van Houtert famous (right here and right here), this argument appears troublesome to reconcile with precise CJEU case legislation. In Common Music, Löber and Vereniging van Effectenbezitters, the ECJ mentions the necessity for ‘different circumstances particular to the case’ than ‘purely monetary injury’, suggesting Article 7 of the Brussels Ibis Regulation doesn’t grant jurisdiction in tort disputes the place the only real connecting issue is the placement of the sufferer’s checking account. This explains how Article 17(1) of the Directive enhances pre-existing EU legislation and was not an pointless repetition of earlier EU authorized devices.
For the reason that Brussels Ibis Regulation leaves jurisdiction points to nationwide legislation if the defendant is domiciled exterior of the EU (Article 6(1)), the ADC wants to use Article 6(e) Rv. Though Dutch courts usually view the CJEU’s interpretation of Article 7 of the Brussels Ibis Regulation as instructive, they don’t seem to be certain by it. And since there exists neither CJEU nor Dutch case legislation denying that the situations inherent in SLAPP disputes justify a extra beneficiant studying of competence standards, the query whether or not Article 6(e) Rv permits for jurisdiction in such disputes stays unsettled.
In gentle of the rationale underpinning Article 17(1) of the Directive, I might argue that the Dutch authorities’s assertion that in SLAPP instances, the tort ‘happens’ on the sufferer’s domicile has advantage. From the sufferer’s perspective, the dangerous results certainly materialise at dwelling. SLAPPs may be began wherever and infrequently in locations unexpected by the sufferer. It will be unreasonable to ask victims to countersue wherever the SLAPP began, since that’s probably extraordinarily expensive and troublesome. Furthermore, this is able to overlooks the truth that the place the place a SLAPP is began is usually chosen as a result of it gives strategic advantages to the claimant. North Dakota, for instance, is among the few US States with out anti-SLAPP laws. Consistent with the political and authorized consensus favouring extra lenient jurisdiction requirements for anti-SLAPP fits, it could be smart for the ADC to embrace a studying of Article 6(e) Rv that permits Greenpeace’s claims to be heard.
What About Profitable SLAPPs?
One other essential interpretation query issues substantive legislation. Given the restricted scope of this blogpost, I talk about just one criterion of the important thing Article 4(3) of the Directive, particularly that for litigation to be thought-about ‘abusive’, the underlying declare have to be ‘unfounded’. For the reason that North Dakota jury awarded much more damages than initially claimed, Greenpeace v ET raises the query of what to do when a strong actor information an extreme declare, geared toward penalising public participation, however the court docket … grants it in full?
The requirement of a declare being ‘unfounded’ displays a component of unseriousness inherent in SLAPPs. A literal studying would counsel that awarded claims can’t be abusive, since they apparently had advantage. The deviation from the unique Fee proposal’s wording of ‘partially unfounded’ additional implies a purposefully narrowed-down criterion. Then again, recital 29 states {that a} declare ‘doesn’t essentially must be fully unfounded’ to be abusive. Furthermore, Article 16 orders Member States to have their courts refuse recognition and enforcement of third-country judgements at any time when the associated proceedings are manifestly unfounded or abusive below the legislation of that Member State. Leaving apart whether or not the EU legislator had US courts in thoughts or primarily included this provision to supply safety in opposition to different third international locations with systematic rule of legislation deficiencies, this provision leaves little doubt {that a} declare being awarded by a international court docket can’t be decisive to put aside the Directive.
This conclusion doesn’t solely concern the Directive, but in addition the usual to find out legal responsibility below Dutch tort legislation. Greenpeace particularly invoked the ‘unwritten customary of care’ of Article 6:162 of the Civil Code. As was accomplished within the Urgenda and Shell rulings, this norm may be concretised and made justiciable through the use of related guidelines of worldwide legislation, together with delicate legislation. Therefore, the ADC will presumably apply the standards of the Directive, since that is the main authorized instrument in opposition to SLAPPs, regardless of the Directive being in its implementing section. As an alternative of submitting to the North Dakota jury, the ADC ought to thus assess whether or not below Dutch legislation this fact-pattern could be fertile floor for a multi-million-euro damages declare (quod non).
Conclusion
Greenpeace v ET is the primary case of its type, and its plot may take one other fascinating flip when the ADC delivers its ruling. This blogpost highlights that the case shouldn’t be straight-forward – it incorporates a Directive nonetheless in its implementing section, open-ended nationwide legislation, and intercontinental turns of occasions. Nonetheless, the Directive’s normative drive because the main worldwide authorized instrument to fight the specter of SLAPPs can information the ADC to interpretations of Dutch legislation which are conscious of the extensively shared conviction that SLAPPs threaten democracies, and victims ought to have recourse to efficient authorized safety. As such, this case may encourage different anti-SLAPP lawsuits within the EU and turn out to be a breakthrough within the efforts to considerably scale back the specter of abusive litigation.
Jesse Peters works as a Coverage Adviser for the Dutch Ministry of Finance. He beforehand labored as junior lecturer in Worldwide and European Legislation on the College of Amsterdam. Any views expressed on this publish are his, and don’t characterize the official place of the Dutch authorities.
