German court reduced amount in dispute in proceedings with reference to EU SLAPP Directive

In a ruling dated October 22, 2024, the Higher Regional Court of Dresden, Germany significantly reduced the amount in dispute in injunction proceedings with reference to the new EU Directive against abusive litigation (SLAPP), among other things. This is one of the first documented cases in which a German court has taken into account Directive 2024/1069, which has not yet been transposed into national law, when assessing the value in dispute.

Hentschke Bau GmbH and its managing director Jörg Drews sued the VVN-BdA Saxony for various statements in an article on "Entrepreneurial commitment to the extreme right in eastern Saxony". The report had been published by the defendant under the name "15 Grad Research" in cooperation with the Else Frenkel-Brunswik Institute of the University of Leipzig.

The plaintiffs objected to several formulations in the report, which they considered to be untrue statements of fact, deliberately incomplete reporting and inadmissible reporting on suspicion. The Dresden Regional Court initially upheld the claim in full and set the amount in dispute at EUR 60,000.

The Higher Regional Court of Dresden partially reversed the judgment of the court of first instance and reduced the amount in dispute to EUR 20,000. The court based its decision on several considerations: The overlapping content of the various applications, the limited regional significance of the case, the presumably low circulation of the article in dispute, the basic idea of Art. 4 No. 3 of EU Directive 2024/1069 on abusive litigation against public participation

Reference to the SLAPP Directive - Now it's up to the German legislator

The Higher Regional Court of Dresden has taken EU Directive 2024/1069 against SLAPPs (Strategic Lawsuits Against Public Participation) into account when calculating the value in dispute, even though it has not yet been transposed into German law. SLAPP lawsuits are strategic legal proceedings that aim to intimidate critical voices through high legal costs, among other things. The consideration of the not yet implemented directive shows that German courts are already beginning to incorporate the European legislative will to protect public participation into their decisions. 

For legal practice, this means that in future, when determining the value in dispute in similar cases, it may be necessary to pay greater attention to whether the proceedings could fall within the scope of the SLAPP Directive. This applies in particular to actions against critical reporting or scientific research on topics of public interest.

It is noteworthy that the reduction in the amount in dispute does not follow directly from the text of the Directive. Rather, the Higher Regional Court of Dresden independently derived a reduction of the amount in dispute from the basic idea of the Directive. This raises a number of new questions: What exactly is meant by this "fundamental idea" of the Directive? In which cases must or may a court take it into account - for example, only in the case of applications with identical content, as in the present case? And what are the specific legal consequences of this? Does taking it into account automatically lead to a reduction in the amount in dispute or does it merely increase the requirements for the plaintiff to demonstrate the significance of the amount in dispute? 

The legislator could eliminate these legal uncertainties by clearly regulating the assessment of the value in dispute in SLAPP-type actions. The judgment of the Higher Regional Court of Dresden also makes it clear how urgently a prompt and comprehensive transposition of the EU Directive into German law is required. The fact that the Higher Regional Court of Dresden based its decision on a directive that has not yet been implemented is unusual and cannot be taken for granted - and, as seen, raises a number of questions. 

In order to ensure effective and comprehensive protection against SLAPP lawsuits and to clarify potential uncertainties among judges, the legislator must therefore swiftly and fully transpose the directive into German law. This is the only way that all courts can act uniformly and with legal certainty against abusive lawsuits and guarantee the protection of the public debate intended by the European legislator.