Return hubs – innovative lawmaking or a dangerous legal experiment?

 

 

By Jonas Bornemann, Assistant Professor of European Law at Rijksuniversiteit Groningen and re:constitution fellow 2024/2025 and Isabela Brockmann, Research intern at the Department of European and Economic Law, Rijksuniversiteit Groningen.

 

Photo credit: Konstantin von Wedelstaedt, via Wikimedia commons

 

1.     Legislative creativity: thinking outside the (legal) box?

 

In lawmaking, creativity is an asset. The ability to devise innovative solutions can break deadlock and help align previously irreconcilable positions. But even the most innovative idea must stay within the limits of legality. This is particularly true for sensitive areas like migration law, where ‘out-of-the-box’ thinking has recently become fashionable among political leaders in Europe to signal their determination to pursue a more restrictive migration policy.

 

The most recent illustration of such an out-of-the-box mentality figured in the Commission’s reform of the Return Directive. Among the changes proposed, the Commission seeks to introduce an option for Member States to create so-called return hubs – centres established in third states to facilitate the return of persons who are not or no longer authorised to stay in the territory of EU Member States. The term ‘return’ is used here, following the terminology used by the Commission, although it should be borne in mind that persons send to return hubs are usually expelled to places they have never been to before. Speaking of ‘return’ in such a context may therefore already be a euphemism. Be that as it may, the Commission’s proposal has been presented and hailed as an innovative way to increase the effectiveness of returns, offering an avenue of deporting persons from the territory of EU Member States who cannot, for practical or legal reasons, be returned to their country of origin. However, the fate of this innovative instrument is far from certain. Even if it would ultimately be accepted by the co-legislatures, several important aspects regarding the implementation of the proposed policy remain unclear. This blog post discusses the potential limits in EU primary law that circumscribe the way that return hubs can be established and run, and proposes refinements to the legal design of the currently discussed reform of the Return Regulation.

 

The post will do so by, first, placing the idea of return hubs in the broader scheme of initiatives that seek to offshore migration administration (2.). It will subsequently present the legal basis for the establishment of return hubs as proposed by the Commission (3.), before zooming in on the options regarding the practical implementation of these hubs by the Member States. Specifically, it will discuss possible limits to the geographical location of these hubs (4.), the risk of systematised detention (5.) and the paramount importance of an effective remedy (6.). It concludes by drawing attention to aspects that should be addressed during the legislative process, to circumscribe, with greater clarity, the mandate of Member States to establish and use return hubs (7.).

2. Return hubs – a piece in the puzzle of offshoring migration administration

 

The idea of return hubs is closely linked to related attempts of offshoring migration administration. The Rwanda scheme, for instance, attempted to outsource asylum examinations through the adoption of a bilateral agreement between Rwanda and the UK that would have enabled the latter to send asylum-seekers to Rwanda to have their claims processed by Rwandan officials. However, following successful legal challenges before the UK Supreme Court and a new government which subsequently repealed the Safety of Rwanda Act, the Rwanda scheme was  abandoned and now largely serves as a cautionary tale for efforts to externalise migration administration. The (voluntary) return of four asylum-seekers pales in contrast to the extreme financial costs of the scheme, estimated to amount to £700m. Costs included upfront payments to Rwanda, asylum processing and operational costs and funding for an integration package covering five years if the individual decided to stay. The results, however, remained extremely meagre.

 

More recently, the Italy-Albania deal followed a similar but not identical template. The deal took the format of a protocol concluded between the two states to allow for the transfer of asylum seekers to Albanian asylum facilities. This measure applied exclusively to persons intercepted in international waters, and would have allowed Italian authorities to process claims under Italian law, although physical access to Italian territory is prevented. After transfer to these newly established facilities had been halted by Italian courts, and legal challenges are currently pending before the Court of Justice, the government decided to ‘reactivate’ the now moot asylum facilities, turning them into so-called ‘repatriation hubs’. A similar initiative was announced by the British Prime Minister during his visit in Albania: the UK would establish ‘return hubs’ in Albania to facilitate return of persons whose asylum application had been rejected.

 

All this suggests that there is a functional connection between the attempts to offshore asylum processing and the emergence of ‘return hubs’, even though the categories of persons targeted by these initiatives differ. Return hubs have no role to play in the context of asylum processing, but rather during the return of third country nationals that are not or no longer authorised to stay in the territory of the Member States. This may relate to third country nationals who are not or no longer allowed to stay and cannot be returned to their state of origin. Return hubs could therefore equally be used to return persons whose application for international protection had been rejected. With a view to this group of persons, however, it should be borne in mind that the Commission’s recently proposed changes to the Asylum Procedures Regulation could give rise to situations where the third state in which a return hub is established will be designated as ‘safe third county’ and that would-be beneficiaries of protection would be returned to that third state without their case being assessed on the merits in the EU.

 

3.     Return hubs as a Member State project

 

Despite the fact that several Member States are currently considering the use of return hubs, and the Commission’s proposal would adjust the legal framework in EU law accordingly, the design – both in law and fact – of these hubs remains far from clear. The Commission’s proposal indicates that persons may be returned to a third country with which an agreement has been concluded, thereby effectively creating a legal basis in EU law for such agreements (see here at 6). However, the proposal only vaguely predetermines the elements that such an agreement should satisfy, thereby backloading potential legal problems to Member States’ implementation of return hubs.

 

First of all, the proposal suggests that return hubs may be established on the basis of either an ‘agreement or arrangement’. The reference to ‘arrangements’ may be read as permitting Member States to resort to forms of cooperation other than formal international agreements. This wording may be inspired by the blueprint of the original UK-Rwanda deal, which took the form of an informal Memorandum of Understanding rather than an international agreement and was termed an ‘asylum partnership arrangement’. Informal arrangements, however, would likely fall short of the requirements outlined by the Commission’s proposal, specifically the obligation to ensure that the third state would be ready to accept the returnee (on this point, see here at 17). While an informal agreement may, in principle, likewise practically ensure that the third state accepts entry of returnees (here at 148), it is characterised by weaker normativity than formal international agreements and appears less suitable to ensure the willingness of third states to accept entry of returnees or ensure respect for safeguards of migrant protection. The importance of formal rules is acknowledged not just by the UNHCR (here, point 3. v), but likewise by the EU legislature, as Art. 59 (7) of the Asylum Procedures Regulation, seems to rest on the view that a formal international agreement adopted under the procedure of Article 218 TFEU would ensure full respect of the principle of non-refoulement.

 

The Commission’s proposal spells out several requirements that the international agreement adopted with third states should satisfy. An agreement establishing return hubs would have to outline the procedure for transfer, the conditions of stay in the third state, including the responsibilities of the Member State and third state respectively, modalities of onward return and the consequences if onward return would not be possible. In addition, the Commission’s proposal clarifies that unaccompanied minors and families with minors shall not be returned to a return hub and insists, moreover, that the agreement would include an independent monitoring mechanism to verify the effective application of the agreement. Last, the agreement must make provision for cases in which the arrangement would be violated or a significant change had occurred that would adversely impact the situation of the third country.

 

While the Commission’s proposal therefore lists certain elements that agreements establishing return hubs should satisfy, it is safe to say that the Commission wishes to ensure that the establishment of return hubs is a Member State project. For EU lawmakers, the choice for national solutions may seem preferable for several reasons: first, it accepts a level of diversity, to the effect that Member States remain free to decide whether they wish to include return hubs as an element of their return efforts. In addition, a legal design that simply requires agreements to respect essential safeguards, such as respect for international law and human rights, may be viewed as a means to keep one's hands clean. Any violation of these safeguards would be attributable to Member State authorities rather than EU institutions. In this sense, the Commission can present its proposal as conforming with standards of EU and international law, whilst leaving the implementation of return hubs, and associated legal challenges, to national authorities.

 

 

4.     Does EU law accept arbitrary geographical choices?

 

The establishment of return hubs is legally operationalised through a broadening of the concept of the ‘country of return’. Pursuant to Article 4 (3) of the Commission proposal, a country of return includes not only the country of origin or transit of a third country national, but has been extended to any third state willing to host a return hub and has entered into an agreement to that end with one or several Member States. Leaving the issue of political feasibility at the side, this raises the question whether Member States’ choice for the location of return hubs would be subject to any standards of legality, or whether this would essentially allow national governments to make an entirely arbitrary geographical choice. Are Member States allowed to return persons to hubs in third states that are extremely remote from both the EU and the country to which the person should ultimately be returned?

 

Current legal standards limiting the geographic stretch of the deportation of asylum-seekers may not be applied by analogy when it comes to the return of third country nationals who are no longer authorised to legally stay in the EU Member States. Indeed, the ‘connection criterion’, a safeguard against arbitrary deportation which has aptly been referred to as the ‘anti-Rwanda’ rule, stipulates that asylum seekers may only be deported to a safe third state to which (s)he has a connection ‘on the basis of which it would be reasonable for him or her to go to that country’ (Article 59 (5) Asylum Procedures Regulation). While such a criterion may not be mandatory under international law and the Commission has recently proposed to allow Member States to derogate from it, one of the innovative aspects of the Commission’s proposal concerns the fact that this safeguard does not apply mutatis mutandis to persons who are not or no longer asylum seekers. More generally, the connection criterion does not apply outside refugee law, and is therefore a ground that cannot be relied upon to limit a Member State’s geographical choice for setting up return hubs.

 

In the absence of a legal standard such as the connection criterion, Member States appear, in principle, to be free to return third country nationals to hubs located in states to which the individual has no personal link whatsoever. However, it is not unreasonable to argue that this principled freedom should be limited by general principles of EU law, specifically the principle of proportionality. While the proposed Return Regulation would leave significant room for maneuver to Member States, it would nonetheless create a legal framework governing the use of return hubs, to the effect that Member States would act within the scope of EU law (for a discussion of the case law, see here at 141). If this is a correct reading of the proposed Regulation, return to a return hub in a region far removed from the country of origin of the person and to which that person has no connection may be viewed as violating this principle. While the principle of proportionality would not preclude Member States from establishing return hubs in third states, it may limit their geographical choice, nonetheless. As UNHCR rightly points out, return hubs would only further the effective return of a person if such hubs are geographically located in places from which individuals may actually be able to travel onwards, either by virtue of visa-free or other forms of mobility regimes. If this would not be the case, return hubs might not be suitable to attain the objective of effective return.

 

5.     Conditions in return hubs – towards systematised detention?

 

The Commission’s proposal suggests that an international agreement setting up return hubs must clarify the conditions of stay in the third state. However, it remains silent about the nature of these conditions. This has given rise to criticism by NGOs and scholars (see here, here, here as well as here, here and here), suggesting that return hubs may incentivise practices of arbitrary detention. On the one hand, it is not inconceivable to argue that an international agreement may allow third country nationals deported to a return hub in a third country to move freely in that country. However, existing practices suggest that cooperation with third states will most likely take the form of restricted mobility or ‘semi-carceral spaces’ (for this apt description, here at 34). This raises questions regarding the respect for fundamental rights in return hubs, specifically the right to liberty. Depending on the length and nature of stay, mobility restrictions in return hubs in third states may amount to detention. If it is presumed that return hubs will not magically resolve the obstacles of onward return to countries of origin, it is entirely reasonable to presume that these hubs will frequently amount to a restriction of liberty which would coincide with significant habeas corpus safeguards, particularly also the obligation to provide for periodic review of detention and to respect maximum detention periods.

 

The presumption that return hubs will frequently be designed as closed facilities follows from political preferences rather than legal necessity. Governments willing to host return hubs might accept that returnees are staying short-term before they are returned to their country of origin, but they might be much less enthusiastic about the prospect of returnees establishing themselves more permanently in that country. There is no obligation for Member States to ensure that third country nationals would remain at or in the proximity of return hubs. While Member State authorities (or the European Border and Coast Guard, as the case may be) may remain responsible for bringing the return of a third country national to her country of origin to a successful end (see here, point 14), there is no provision in EU law that would require Member States to limit the mobility of third country nationals in the country in which the return hub is located. Rather, with a view to persons who cannot be returned in the short- or medium-term to their country of origin, UNHCR advocates for arrangements that minimise restrictions to movement, and that allow for pathways to self-sufficiency in the host third country.

 

6.     Could return hubs increase the effectiveness of the EU’s return policy?

 

The creation of return hubs is driven by the ambition to increase the effectiveness of return. Although the Commission’s proposal does not explain how the establishment of such hubs would help attain this objective, there seems to be an implicit assumption that a person who is returned to a country in which (s)he does not like to reside would be more easily convinced to return. This assumption is problematic, not just because of the lack of empirical data supporting it. Such a conclusion equally fails to acknowledge the variety of reasons why persons leave their country of origin, and ignores the fact that return is often hampered by lack of cooperation on the side of the third state, not the individual.

 

In addition to these factual uncertainties, the political objective of increasing the effectiveness may be criticised for being based on fair-weather presumptions. It presupposes that Member States would be able to ensure that returnees will not be exposed to inhuman or degrading treatment in the third state to which they have been transported. On the one hand, it can surely be welcomed that the Commission’s proposal explicitly reminds Member States of this obligation, requiring them to respect “international human rights standards and principles (…) including the principle of non-refoulement” (Article 17 (1) of the Commission proposal). On the other hand, NGOs, scholars and curiously, in a 2018 working paper, even the Commission itself, had warned against the significant risks of refoulement associated with the establishment of return hubs. For example, a third country may be declared prima facie safe, however, this may still fail to account for intolerance towards certain groups, such as LGBTQ+ individuals or religious minorities. A de facto risk of violating non-refoulement therefore remains.

 

In this context, it is crucial that individuals have the possibility to challenge their deportation to a return hub. National courts may find deportations to return hubs to be unlawful if this would amount to a violation of migrants’ fundamental rights. One of the key questions for the future of the idea of establishing return hubs will therefore revolve around the availability and nature of judicial redress. While the Commission’s proposal clarifies that individuals would benefit from a right to an effective remedy with a possibility of suspensive effect, a document drafted by the Council Presidency before the publication of the Commission’s proposal indicated that ‘the prevailing position’ in the Council was that ‘judicial scrutiny [...] could put the implementation of this innovative solution at risk’ and should therefore be precluded. This proposition is highly problematic, as it seems to be at odds with EU primary law, specifically the right to an effective remedy, proposing to sacrifice this crucial constitutional safeguard in the name of innovative lawmaking, thereby exacerbating the risk of refoulement that is inherent in the idea of offshoring return.

 

7.     The uncertain future of return hubs

 

Return hubs are one of the key innovations proposed by the Commission. Hopes may be high that this will enable Member States to increase the effectiveness of return policies, thus marking what is presented as a significant change in EU migration policy. As this blog post has argued, however, the fate of return hubs is far from certain. It is unclear whether the co-legislatures may be able to find common ground on this element of reform or whether the proposed legal basis for return hubs in EU law will be kept as it is, amended or abandoned altogether. Specifically, it should be worth critically reflecting on some of the underlying presumptions of this policy instrument: would it really persuade third country nationals to move back to their country of origin? And could Member States in practice enter into a cooperation with third states that ensures that courts will accept, in a significant number of cases, deportation?

 

Presuming there is a political majority for the idea of return hubs, based on the preceding analysis, the co-legislature may wish to consider some of the following aspects that may allow them to define, more clearly, the legal option of Member States to rely on these return hubs. First, the Return Regulation should clarify that such return hubs could only be established on the basis of formal international agreements. Second, return hubs would have to be established in a third state from which a person may, factually or legally, be able to move to her or his country of origin. Third, the EU legislature should oblige Member States to include, in their cooperation with third states, rules that clarify the legal position of third country nationals who cannot return to their country of origin. After a reasonable period of time, these individuals would have to be authorised to move freely within the territory of that third state, in order to avoid a practice of indefinite and systematic detention. Lastly, unlike views reportedly raised in the Council, ideas to drop or undermine the effectiveness of judicial review should be abolished. The right to an effective remedy is crucial in the context of deportation to a third state, and likewise a firmly enshrined constitutional guarantee. While judicial review may undermine the idea of effective return, this is surely a price worth paying. The fate and success of return hubs as an innovative policy instrument will depend on these safeguards. Should return hubs emerge as an innovative policy tool, its legal design needs to be waterproof.

 

 

Carrying a bigger stick: the EU strengthens its power to suspend visa waivers quickly, in pursuit of immigration policy and external relations objectives

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Jelger Groeneveld, via Wikimedia Commons

Introduction

What tools does the EU have to get non-EU countries to agree to do something the EU wants them to do – or to stop doing something the EU objects to them doing? One mechanism is foreign policy sanctions, which often limit trade or investment in some way, or freeze assets, but also sometimes impose an entry ban on individuals who are linked to a government, group or policy that the EU objects to. But under the law of the EU, foreign policy sanctions require unanimity, and sometimes that can be hard to reach. As an alternative approach, trade measures as such can be adopted by a qualified majority vote; hence the recent EU law increasing tariffs on some Russian and Belarusian products, which sits alongside the more traditional sanctions on those countries.

Another area for exerting such pressure is visas, where a common visa policy gives the EU leverage to (threaten to) require some or all of a non-EU country’s citizens to obtain visas to visit the EU, or, in the event of a visa requirement being imposed, to make those visas more difficult or expensive to get. Conversely, the EU sometimes offers carrots rather than sticks: it can be willing to drop visa requirements for some or all of a non-EU country’s citizens to visit the EU, or where a visa requirement is maintained, to make visas easier or cheaper to get, in return for some commitments from the non-EU country concerned.

Recently the EU has agreed to amend its visa law to add a new string to its bow in this field – making it easier to reimpose visa requirements on non-EU countries (or categories of their citizens) on a fast-track basis, and to provide for more grounds on which to do so. (The full text of the agreed new law is here) This ‘suspension mechanism’ now includes grounds for reimposing visa requirements going beyond the scope of immigration policy as such. The following blog post analyses the newly agreed law within the broader context.

Background

Current EU visa law generally

All EU countries except Ireland, plus the Schengen associated countries of Norway, Switzerland, Iceland and Liechtenstein, have agreed a common list of countries whose nationals are required (or not required) to have visas for a short-term visit (90 days out of every 180 days).  This is set out in the frequently-amended visa list Regulation, last codified in 2018. The recently-agreed law discussed in this blog post is an amendment to the visa list Regulation.

At present, the countries whose nationals are not subject to EU short-term visa requirements (the ‘whitelist’) comprise most non-EU European states (including the UK), North American and most Latin American countries, some wealthier Asian countries (such as Israel, the UAE, Japan and South Korea), Australia, New Zealand and a number of small middle-income islands in the Caribbean and the Indian and Pacific Oceans. All other countries (the ‘blacklist’) are subject to visa requirements.

While the list of countries on the visa whitelist or blacklist is harmonised, there is some discretion for Member States as regards categories of people from the non-EU countries on these lists. For example, individual Member States can drop visa requirements for holders of official or special passports even though their country is on the visa blacklist; or conversely impose visa requirements for holders of official or special passports even though their country is on the visa whitelist.

The detailed rules on issuing ‘Schengen visas’, ie a visa allowing travel across all the countries participating in Schengen (currently all EU countries minus Cyprus and Ireland, plus the Schengen associated countries), are set out in the EU visa code, adopted in 2009 and amended in 2019.  

The EU also has two types of visa treaty with non-EU countries. First, visa waiver treaties, where the EU and the non-EU country concerned agree reciprocally to waive visa requirements for short-term visits in each direction. Secondly, visa facilitation treaties, where the EU and the non-EU country concerned agree reciprocally to make visas easier to obtain – ie simplifying the documents required, reducing or waiving the fee for an application, and even dropping visa requirements entirely for holders of official or special passports. In practice, the EU usually links visa facilitation treaties to readmission treaties.

Current visa sanctions: broader context   

Since its amendment in 2019, the visa code has provided for the EU to (threaten to) sanction non-EU countries on the visa blacklist, by making visas harder and more expensive to get, if a country (in the EU’s view) does not cooperate sufficiently on readmission of its own citizens. This power has been used (or threatened) several times (see page 5 of the latest Commission annual report).

A further proposal to restrict EU trade preferences for developing countries on the same grounds has not yet been agreed (in part because it has been criticised for potentially breaching WTO law). Negotiations on this proposal broke off last year because the European Parliament objected in principle to this idea. However, they have recently resumed.

The EU has (respectively) wholly or partly suspended three visa facilitation treaties: wholly with Russia (due to the invasion of Ukraine); partly with Belarus (due to Belarus suspending the parallel readmission treaty, plus facilitating migration into neighbouring EU countries); and most recently partly with Georgia, due to concerns about human rights there. In the latter two cases, the EU targeted the removal of visa facilitation upon the holders of official passports; the general public still benefits from visa facilitation (as regards Belarus) and the subsequent visa waiver (as regards Georgia). But because the visa list Regulation (as it stands) still gives Member States discretion whether to drop visa requirements for Georgians with official passports or not, not all Member States have followed up the EU’s decision to partly suspend the treaty with Georgia: at time of writing, only eight Member States have notified the reimposition of visas for holders of official Georgian passports.   

Also the EU has partially then fully suspended the visa waiver treaty with the Pacific island of Vanuatu, due to its investor citizenship policy. This is linked to visa sanctions under the visa list Regulation, discussed further below. 

Current visa sanctions: visa list Regulation

The visa list Regulation provides for two routes to reimpose visa requirements on a fast-track basis. First of all, it’s possible to do so on reciprocity grounds, ie as a reaction to a country on the whitelist not waiving visa requirements in turn for all EU Member States. This issue is contentious in practice: the rules have been amended several times; the Commission frequently reports on them; and the CJEU has ruled on them twice (ruling against the Commission when it challenged the procedure involved, seeking less accountability; but later ruling for the Commission when the European Parliament sued it for ‘failure to act’ when it did not impose sanctions upon the USA in response to a lack of full reciprocity; in the Court’s view, the Commission was not under a legal obligation to sanction the USA). (During negotiations on the amendments discussed in this blog post, the European Parliament also tried to amend the reciprocity rules to overturn the outcome of this judgment going forward; it was unsuccessful).

But our main focus here is the second route to the fast-track reimposition of visa requirements (the suspension mechanism): dropping the visa waiver on immigration and asylum policy grounds, now also to include more general external relations grounds. For this is the only part of the visa list Regulation that will be amended by the newly agreed law. (Note that the amendments have not yet been formally adopted; this will likely take until the autumn).

The visa list Regulation was first amended to provide for a suspension mechanism in 2013, due to concern from Member States about the impact of dropping visa requirements for most of the Western Balkans several years beforehand. Those rules were amended in turn in 2017, this time due to concern from Member States about dropping visa requirements for eastern neighbourhood countries (eventually visas were waived for Moldova, Ukraine and Georgia).

Substantive grounds for using the suspension mechanism

Under the current law before amendment, the suspension mechanism can apply on any of four grounds:

-          there is ‘a substantial increase in the number of nationals of that third country refused entry or found to be staying in the Member State's territory without a right to do so’; or -          ‘a substantial increase in the number of asylum applications from the nationals of that third country for which the recognition rate is low’; or -          ‘a decrease in cooperation on readmission with that third country, substantiated by adequate data, in particular a substantial increase in the refusal rate of readmission applications submitted by the Member State to that third country for its own nationals’ (or nationals of other states who transited through that country, if a readmission treaty with the EU or the complaining Member State obliges the country concerned to readmit them); or -          ‘an increased risk or imminent threat to the public policy or internal security of Member States, in particular a substantial increase in serious criminal offences linked to the nationals of that third country, substantiated by objective, concrete and relevant information and data provided by the competent authorities’. All four grounds refer to a ‘substantial increase’. But what is a ‘substantial increase’? The concept is further defined in the preamble to the Regulation: it means an increase of more than 50% over a two-month period compared to the same period in the previous year (or compared with the last two months prior to dropping the visa requirement for a non-EU country). However, the Commission can use a threshold lower than 50% if it ‘deemed it applicable in the particular case’. As for a ‘low recognition rate’ for asylum applications, this is ‘around 3 or 4%’ according to the preamble, although again the Commission can deem a higher rate applicable in a particular case. For readmission, the ‘decrease in cooperation’ does not necessarily have to take the form of a substantial increase in refusal of readmission requests (as confirmed by ‘in particular’). The main text of the Regulation states that ‘non-cooperation’ on readmission (note the different wording from ‘decrease’) can also, as regards a readmission treaty with the EU, apply ‘for instance’ to ‘refusing or failing to process readmission applications in due time’; or ‘failing to issue travel documents’ or ‘refusing to accept European travel documents’ in accordance with the deadlines in the treaty; or ‘terminating or suspending’ the readmission treaty. Conversely, there is currently no further definition of ‘serious criminal offences’, or any indications of what might otherwise comprise ‘an increased risk or imminent threat to the public policy or internal security of Member States’, given that the ‘substantial increase in serious criminal offences’ ground is only an example of such a risk or threat (‘in particular’).  Procedural rules of the suspension mechanism The mechanism can be triggered either by the Commission or a Member State. In fact, as part of the rules on the suspension mechanism, the Commission has a specific obligation to monitor compliance with commitments given by a non-EU country in the context of a ‘visa liberalisation dialogue’, referring to a process over several years in which non-EU countries make commitments on immigration law and human rights issues, in return for which the EU eventually waives the visa requirement (in practice, this applies to Western Balkans and eastern neighbourhood countries; a dialogue is also currently underway with Armenia). The Commission must report on these countries annually for seven years after the visa waiver, and since 2023 has been reporting on some other whitelist countries too (see the most recent report). In effect, this is a fifth ground of suspension, because the visa list Regulation also refers to triggering the suspension mechanism ‘where a report of the Commission shows that one or more of the specific requirements is no longer complied with as regards a particular third country’. After taking account of evidence required by the Regulation, the Commission can ‘decide’ to sanction the non-EU country; seemingly it is obliged to do so if a simple majority of Member States (so 14 of them) have triggered the process as regards the four grounds for using the mechanism. This would take the form of an implementing act (ie subject to scrutiny by Member States’ representatives) suspending the visa waiver for some groups of that country’s nationals for nine months. If the issues persist, the Commission ‘shall’ adopt a delegated act (ie subject to control from the Council and the European Parliament) suspending the visa waiver for all nationals of that country for 18 months. That can be extended for six months if the Commission makes a legislative proposal (which would need to be agreed by the Council with a qualified majority of Member States, and the European Parliament) to make the move to the blacklist permanent.  The suspension mechanism in practice The EU has only used the rules once so far. As noted above, it punished Vanuatu for its investor citizenship rules, taking the view that the ‘public policy and internal security’ ground of the suspension mechanism justified reimposing visa requirements in these circumstances. (Remember that a substantial increase in criminal offences was only one example of a public policy or internal security threat: ‘in particular’) Applying the procedural rules, this entailed an implementing decision, then a delegated act, later extended while the legislation was amended, as well as the suspension of the visa waiver treaty discussed above. (Note that this process was different from that leading to the CJEU recently finding that a Member State (Malta) had breached EU law by, in effect, selling its nationality as a route to obtaining EU citizenship.) The newly agreed amendments The recently agreed amendments follow the Commission’s proposal in 2023 (and see the Commission's earlier discussion paper), the Council’s (ie Member States’) agreed position in March 2024, and the European Parliament’s position earlier this year. I analysed these competing versions several months ago. The different versions can also be compared in a four-column document, and there is a very useful later four-column document that gives a snapshot of where the negotiations stood in May. With the text of the amendments now agreed, the following sets out what those amendments will change, indicating if it was the Commission, the Council or the European Parliament that had the biggest role in securing the key amendments. I’ll also mention some proposed amendments that weren’t adopted. At first sight, the first two grounds for using the suspension mechanism – a substantial increase in refusals of entry or overstay rates, and a substantial increase in asylum applications from a country with a low recognition rate – remain the same. But in fact, changes to other parts of the Regulation will alter their interpretation: the main text (no longer the preamble) to the Regulation now defines a ‘substantial increase’ as 30%, instead of 50%, and a ‘low recognition rate’ is now defined as 20%, instead of 3-4%, matching the new asylum procedures Regulation. This means that it will be easier to trigger the suspension mechanism on these grounds. Indeed several countries assessed in the Commission's annual report will now potentially fall within the scope of the suspension mechanism (and see page 5 of this Council document). The Commission proposal would not have changed these numbers; the Council insisted on the amendments, with the European Parliament dropping its compromise proposal of 40% to define ‘substantial increase’. However, there is a requirement for the Commission to assess the interpretation of the 30% rate within three years. Unlike the current Regulation, the Commission could decide to change these rates either way, although (at the behest of both the Parliament and Council) it must ‘duly justify’ any decision to do so.    The third ground – a decrease in readmission cooperation – remains, but is reworded more simply, referring now to ‘a decrease on cooperation on readmission…or other cases of non-cooperation on readmission’. However, the text still separately retains a reference to a ‘substantial increase’ in refusal of readmissions, now defining this, as elsewhere, as a 30% increase. The European Parliament’s proposal to require that it must be shown that this reduction in cooperation is the fault of the country concerned was rebuffed. The current definition of other forms of non-cooperation on readmission is also retained, now supplemented by clarifying that it also applies to ‘failing to assist in identifying third-country nationals for whom a Member State has submitted readmission applications or otherwise creating persisting practical obstacles regarding the enforcement of returns’. The Parliament’s attempt to limit the potential use of the suspension mechanism against countries which did not issue travel documents (so the rules would apply only if the non-EU country failed to issue the documents for its own nationals, or for non-nationals who held a right of residence in that country) was rebuffed. The fourth ground – public policy or internal security – now refers to a ‘significant risk’ (rather than an ‘increased risk’, and adds to the list of examples of such risks or threats (this list is still non-exhaustive: ‘in particular’ is retained, at the Council’s behest). The first example remains a ‘substantial increase in serious criminal offences’, which is now defined, as elsewhere, as a 30% increase. On the other hand, ‘serious criminal offences’ is not defined; although the Council wanted the preamble to refer to ‘terrorist offences and activities of organised criminal groups’ in this context, this was not agreed. A new second example is ‘hybrid threats’, referred to in the preamble as including ‘state-sponsored instrumentalisation of migrants’ as defined in the EU’s asylum crisis Regulation; and a new third example is ‘systemic deficiencies in document security legislation or procedures’ (at the behest of the Council, although ‘systemic’ was added to limit its scope; there is no definition of ‘systemic’). A new fifth ground is investor citizenship schemes, defined as schemes ‘whereby citizenship is granted without any genuine link to the third country concerned, in exchange for pre-determined payments or investments’. As we have seen, though, this ground is not genuinely new, as the current ‘public policy or internal security’ ground has been interpreted to cover investor citizenship. The preamble asserts that ‘visa-free third countries should be deterred from using visa-free access to the Union as a tool for leveraging individual investment in return for their citizenship’, and adds a further rationale, at the behest of the European Parliament: ‘a lack of comprehensive security checks, vetting procedures and due diligence by such third countries with regard to investor citizenship schemes pose several serious security risks for Union citizens, such as those stemming from money laundering and corruption’.      Next, a new sixth ground is non-alignment with EU visa policy, where, in particular due to geographic proximity to the EU, this ‘could lead to a substantial increase in the number of third-country nationals, other than nationals of that third country, who enter irregularly the territory of the Member States after having stayed on, or transited through, the territory of that third country’ (italics added). The ‘could lead to’ wording is a compromise: the Commission had proposed ‘there is a risk of’; the Council agreed; but the European Parliament wanted to delete the words, meaning that this ground could only have applied if a ‘substantial increase’ had actually happened. Frankly, the European Parliament has conceded the point here: it’s hard to see any real difference between ‘risk of’ and ‘could lead to’. This brings us to the new seventh ground for using the suspension mechanism: non-compliance with commitments made to the EU during a ‘visa liberalisation dialogue’ which resulted in a country being moved to the whitelist. As we saw above, though, this is already a de facto ground for suspension under the current law. The new eighth ground for using the suspension mechanism is perhaps the most eye-catching, as it refers to external relations issues generally, not necessarily linked to immigration or asylum policy at all: a deterioration in the Union’s external relations with [whitelist country] caused by: (i) serious breaches by that third country of the principles set out in the Charter of the United Nations; (ii) grave violations by that third country of fundamental freedoms or of the obligations deriving from international human rights law or international humanitarian law; (iii) serious breaches of international law and international legal standards; (iv) that third country carrying out hostile acts against the Union or Member States with the aim of destabilising or undermining society or institutions which are key for the public policy and internal security of the Union or the Member States; or (v) non-compliance with international court decisions and rulings. The Commission did not propose this new ground; the European Parliament and the Council each proposed their own version of it, and the final text is based on the Parliament’s version, with some of the Council’s preferred text added in and parts of the Parliament’s version dropped. In particular, the final text uses: the Parliament’s version as regards any deterioration (the Council’s version set a threshold of a ‘significant and abrupt’ deterioration); the Parliament’s version of the necessary link (‘caused by’; the Council’s version was ‘when it relates to’ and ‘is deriving from’); the Parliament’s version as regards the broad scope (the Council version applied ‘in particular’ to human rights); the Parliament’s version as regards ‘serious breaches’ of the UN Charter; largely the Parliament’s version as regards ‘grave violations’ of human rights law et al (although the ‘fundamental freedoms’ point comes from the Council’s text, and the Council version did not differ much: ‘serious human rights violations and abuses’); the Council’s version as regards ‘serious breaches of international law and international legal standards’; the Parliament’s version as regards ‘hostile acts’; and the Council’s version as regards ‘non-compliance with international court decisions and rulings’. The Parliament’s suggested inclusion of ‘violations…of bilateral agreements between it and the Union’ and ‘non-compliance or non-alignment by that third country with relevant Union sanctions’ were dropped – perhaps because the former could have circumvented dispute settlement processes (whereas if the EU goes to dispute settlement and wins, the ‘non-compliance with court rulings’ ground could apply) and the latter attempts to insist that non-EU countries conform to EU foreign policy (although the new Regulation already attempts to insist that they conform to EU visa policy). The notion of ‘hostile acts’ is further defined in the preamble: this ‘could result from foreign interference in political processes, economic coercion, cyber operations, economic espionage or the sabotage of critical infrastructure’.  Finally, a new ninth ground for use of the suspension mechanism is ‘any other ground for suspension set out in a short-stay visa waiver agreement between’ the EU and a whitelist country, ‘limited to the scope of application of such agreement’. Both the Council and the European Parliament pushed for this new ground, although in effect it already existed and was applied already: the EU’s reaction to Vanuatu’s investor citizenship scheme took the form of invoking both the ‘public policy or internal security’ ground in the current Regulation, and the parallel ground to suspend the treaty concerned. The threshold for assessing increases in asylum applications etc compared to the previous year will be more flexible, changing to between two and twelve months. (The Commission proposed to make it even more flexible – ‘at least two months’ – but the European Parliament insisted on at least some limit applying).   At the behest of both the Parliament and the Council, most of the new grounds for suspension could be triggered by Member States too – with the significant exception of the ‘external relations’ exception, which only the Commission can trigger, because (according to the preamble) ‘the external relations of the Union will be affected as a whole’. Interestingly, the new law does not provide for any special rules as regards the evidence to be assessed, or the process to be followed, for applying that exception. In addition to assessing the evidence relating to the ground for using the suspension mechanism, the Commission will also have to assess (at the Parliament’s behest) ‘the necessity, proportionality and consequences of a suspension of the exemption from the visa requirement.’ There’s also a new obligation, if a suspension is adopted, to ‘work together in close cooperation with the third country concerned to find alternative long-term solutions in respect of the relevant ground or grounds…and take into account the political context, the economic matters at stake and the consequences of a suspension of the exemption from the visa requirement for the overall external relations of the Union and the Member States with that third country’. When it comes to applying sanctions in practice, the first level of sanctions (an implementing measure against categories of persons) can now apply for 12 months, rather than 9. There is still an apparent obligation to act here if a simple majority of Member States trigger the rules (although this does not apply to the ‘visa dialogue’ or ‘external relations’ grounds). Moreover, where the suspension mechanism is used, Member States can no longer choose to exempt holders of special or official passports from it, at the behest of the European Parliament. This addresses the issue that arose from the recent partial suspension of the visa facilitation treaty with Georgia, as discussed above (ie partially suspending the treaty as regards visa waivers for holders of official passports did not necessarily require that Member States reintroduce visa requirements for the category of Georgians holding those passports, because the Regulation still left them with discretion on that point). There is a new quicker fast-track possibility for the Commission to use the suspension mechanism in the event of ‘urgency’. The European Parliament attempted to restrict this process to the ‘public policy and internal security’ ground, but this was rebuffed – although the preamble suggests that urgency only applies ‘for example’ to prevent mass influx or ‘serious damage to the public policy or internal security of Member States’. Conversely, the Council successfully insisted that there must still be some advance scrutiny by Member States of draft Commission decisions (albeit quicker than usual) – rather than use the ‘full-fat’ urgency procedure in the comitology Regulation as the Commission had wanted (that procedure allows the Commission to act without prior discussion with Member States at all, although only for a limited period). If the issues persist, as under the current law, the Commission ‘shall’ adopt a delegated act suspending the visa waiver for all nationals of that country. But the new law extends the time those delegated acts can apply from 18 months to 24 months. Furthermore, if the suspension mechanism is invoked on external relations grounds, the new law allows the delegated act to apply still to limited categories of people only, because in such cases (according to the preamble), ‘the Commission should favour a targeted approach’, suspending visa waivers first for those ‘holding positions of responsibility, such as members of that third country’s official delegations, members of local, regional and national governments, members of parliaments or high-ranking public or military officials, minimising adverse consequences to the general population’. As with the implementing measures, if the delegated act applies to the holders of special or official passports, Member States lose their power to exempt them from the visa requirement (ie the recent Georgia issue). In the event of a legislative proposal to make the move to the visa blacklist permanent, the delegated act can be extended for 24 months (rather than six months under the current law). And it can be extended for a further 24 months where it is targeted on holders of special or official passports, on external relations grounds. Finally, the European Parliament had also proposed a change in the law aimed at blacklist countries. It wanted to give the Commission the power to adopt an implementing measure removing Member States’ option to drop the visa requirement for holders of special or official passports from those countries too, in the event of a deterioration in external relations as defined in the new law. However, this proposal was rebuffed.

Comments

All three institutions were broadly in agreement on the main features of the Regulation. Some of them won or lost on particular points: the Parliament lost its attempts to extend its scope to cover some issues relating to reciprocity or blacklist countries, but mostly won as regards a broader scope and lower threshold for the external relations ground, and the insertion of a ‘Georgia clause’ (removing the power of Member States to waive visa requirements for official passport holders when visa requirements are reimposed). The Council won lower thresholds for the definitions of ‘substantial increase’ and low recognition rates for asylum; and the Commission got at least a limited version of fast-track powers to apply the suspension mechanism, albeit still being subject to advance scrutiny by Member States. There was little dispute as regards adding most of the new grounds for using the suspension mechanism, and the lengthened periods for reimposing visa requirements via implementing or delegated acts.

One consistent feature of the new Regulation is the broadening of scope of the suspension mechanism: not only (most obviously) by adding new grounds for its use, but also lowering the thresholds for applying the existing grounds, and by widening the reference period for determining if any of the various ‘substantial increases’ have occurred.

Traditionally Member States have been reluctant to give up powers as regards visa exemption (or requirements) for holders of special or official passports, except when the EU negotiates visa facilitation treaties. But when negotiating the new law they were willing to accept the Parliament’s proposed ‘Georgia clause’, which will constrain their powers as regards holders of such passports from whitelist countries – although they did reject the Parliament’s parallel proposal to restrain their powers as regards holders of such passports from blacklist countries.

Member States have also been remarkably willing to address foreign policy issues – traditionally a closely guarded field where unanimous voting applies – by means of visa sanctions. Usually one might expect the European Parliament to be pushing this, against strong resistance from Member States; but on this occasion, the Council had suggested a new ‘external relations’ ground first, and largely accepted the Parliament’s broader version of the clause. This is so even though the focus on targeting government officials on external relations grounds is remarkably similar to the foreign policy process of naming individuals to be sanctioned.

There’s a key difference, though, despite the overlaps: the visa suspension mechanism can only lead to officials being required to apply for a visa, whereas foreign policy sanctions can entail an entry ban. (The EU has not resorted to Trump-style entry bans for entire countries). So even if (say) Hungary complies with the ‘Georgia clause’, it could be malicious compliance: the (hypothetical) police chief of Tbilisi, fancying a weekend break after a long week of thumping protesters, applies for a Schengen visa from Hungary. Not only is it granted; the Hungarian government lays on a hotel suite full of finely aged wine – and barely dressed women – to welcome him.

The breadth and lack of clarity of the external relations ground to invoke the suspension mechanism leaves the Commission much discretionary power to determine when it might be used. While, as noted above, the EU has always avoided using the reciprocity mechanism in the visa list Regulation, it has used every other form of visa sanctions power it has, at least once. Widening the scope of the suspension mechanism makes it likely that this visa sanctions power will be used more often.

Some political considerations will of course remain: the EU seems determined so far to avoid further confronting Trump (consistent with a longer history of avoiding conflict with the USA in this field); and whatever argument might be made about Israel and international (humanitarian) law, the EU rarely goes beyond mild expressions of concern.

There may be more enthusiasm for using – or at least threatening to use (cf the visa code sanctions) – the enhanced suspension mechanism as regards immigration and asylum policy. On this point the effect of the ‘visa policy alignment’ ground of the new rules – despite the EU’s supposed opposition to smugglers and to unsafe routes for asylum-seekers – is to make it harder for asylum-seekers to get to the EU via a safe, smuggler-free journey to a neighbouring country. Moreover, to apply the ‘visa policy alignment’ ground, there’s no requirement that the asylum recognition rate has to be low. Put another way, the EU wants to end a safe route for would-be asylum-seekers to get close to the EU in order to claim asylum there, regardless of whether their application might be successful. For all the rhetoric about evil gangs of smugglers and unfounded applications, it seems the reality is that the EU just does not want refugees.

Must cases be unfounded to qualify as SLAPPs? What unfoundedness means for GDPR-based SLAPPs

 

 

Léna Perczel, Legal Officer, Political Freedoms Program, Hungarian Civil Liberties Union

 

Photo credit: Dirk Beyer, via Wikimedia commons

 

Countering SLAPPs (Strategic Lawsuits Against Public Participation) has been at the forefront of political, legal and academic discourse over the past two years. The most significant legislative development has been the European Union’s Anti-SLAPP Directive (Directive), backed by a soft law instrument, the Council of Europe’s Anti-SLAPP Recommendation (CoE Recommendation).

But what exactly qualifies as a SLAPP? The Directive, which is limited to cases with cross-border elements, defines the term and treats unfoundedness as a key criterion. In contrast, the CoE Recommendation treats it as just one of several indicators for identifying such lawsuits. While both instruments acknowledge it as a factor, Hungary’s example for General Data Protection Regulation (GDPR) based SLAPP cases suggest it is not necessarily a defining feature. 

In this blog post, I aim to explore—through the lens of this Hungarian case group—whether assessing the SLAPP nature of a case based on unfoundedness could render legal efforts to combat SLAPPs ultimately ineffective. This issue is particularly pressing in Hungary, especially in cases where the press is required to comply with GDPR obligations—yet no benchmark has been established by the European Court of Human Rights (ECtHR, the Court) to date.

 

The GDPR’s burden on the press in Hungary

 

The SLAPP phenomenon gained attention in Hungary when individuals with economic power repeatedly attempted to erase their names and wealth from the media, invoking rights enshrined in the GDPR. This conduct demonstrated that the GDPR can become a powerful tool for SLAPPs when interpreted in a strictly formal manner. By placing the responsibility on data controllers, the GDPR established a rigid procedural framework, obliging them to comply with extensive administrative safeguards. The press becomes a data controller simply by gathering and storing someone’s name, even without publishing it. As a result, a journalist must begin preparing extensive documentation from the moment they start investigating an individual. Unlike commonly used legal remedies against the press, such as press rectification procedures or defamation claims, violations of the GDPR can stand regardless of whether the article is false or reputationally harmful, thus regardless of the journalist’s ethical conduct. Adhering to such duties makes reporting on public matters increasingly difficult. In fact, beyond the administrative burden itself, informing data subjects about articles in preparation can entirely undermine investigative journalism. Data subjects may resort to dismissing evidence or objecting to the data processing, effectively blocking the publication of articles. 

Despite Article 85  of the GDPR, the Hungarian government has not reconciled the GDPR with the freedom of the press, which could have led to exemptions from certain GDPR obligations (such as the strict notification obligations imposed on data controllers, explained below). This lack of reconciliation has created a constitutional loophole: a legal grey zone that reflects the state's failure to fulfil its positive obligation to protect the press. In the absence of clear legal provisions, and due to this unresolved tension, the responsibility has fallen on those applying the law to balance the competing rights of freedom of expression and data protection. 

The Hungarian National Authority for Data Protection and Freedom of Information (DPA) was the first forum in Hungary to detail these obligations, requiring data controllers to inform each data subject preliminarily, proactively, and individually about the data being processed and its legal basis—recognizing only legitimate interest under Article 6(f) of the GDPR as a valid ground for processing. This was despite Forbes’ argument that publishing on public matters falls within the constitutional duty of the press, thus the ground for processing should be public interest (Article 6(e) of the GDPR). This means that journalists, whose work consists primarily of processing personal data, must notify each data subject in advance while conducting their reporting, including during initial research. Compliance is required regardless of whether the data subject has initiated any procedure, making this an even more effective SLAPP tool. In its decision, the DPA entirely failed to consider how such a disproportionate workload could stifle the press. Had public interest been accepted as a legal basis for processing, these notification obligations would not have been imposed on journalists.

 

The manifestation of GDPR-based SLAPPs through legal proceedings against Forbes

 

In 2019, the owners of a Hungarian energy drink company—a family business that gained prominence partly through public funding—initiated proceedings after Forbes included them in its annual wealth rankings. Their inclusion prompted GDPR-based claims.

First, they argued that the press lacked a legal basis for publishing their personal data, and that the data processing therefore constituted a violation of their rights (primary claims). Second, they contended that even if legitimate interest were accepted as the legal basis, the press had failed to meet its procedural obligations—such as informing the data subjects about the legitimate interest assessment (ancillary claims).

Both GDPR-based claims proceeded in parallel before the civil court and the DPA. Initiating multiple proceedings simultaneously by the same claimant is a typical characteristic of SLAPPs, intended to increase pressure on the target. 

In this blog post, I will focus on the DPA case. However, it is important to illustrate the SLAPP nature of these proceedings by noting that, in the civil case, the claimants requested a preliminary injunction—which the court granted (The Metropolitan Court ordered the interim measure in its decision no. 25.Pk.23.297/2019/17-I. The Appellate Court and the Supreme Court upheld the decision in their decisions 2.Pkf.25.030/2020/2. and Pfv.IV.20.395/2020/4 respectively. The decision of the Supreme Court is currently before the EctHR).

As a result, until the court ruled on the merits of the case whether Forbes had a legal basis for processing the data, the magazine was prohibited from publishing any information about the family members—amounting to de facto censorship for more than four years (The interim measure was repealed by the first-instance court’s non-final decision, decision no. 25.P.21.067/2023/21).

It was in the DPA procedure initiated by this claimant that the authority first established a formal interpretation of the GDPR, as explained above. Although the DPA’s decision was challenged in the administrative courts—emphasizing the claimants’ economic position and the press’s constitutional duty—the Supreme Court, while acknowledging that “it is of particular importance to inform the public about the use of public funds for the development of private enterprises,” and that such reporting falls under the press’s watchdog role, nevertheless found no grounds for exempting the press. It affirmed that the press is required to fulfill notification obligations when relying on legitimate interest as a legal basis for data processing.

 

The definitions’ cornerstone: unfoundedness

 

Effectively countering SLAPPs requires clear definitions. This section examines those offered by the Directive and the CoE Recommendation, which both include unfoundedness. Unfoundedness has been central to debates over the Directive’s initial draft. Many still argue that it imposes an unnecessary limitation on what constitutes a SLAPP, potentially hindering the effectiveness of action.

The CoE Recommendation describes unfoundedness as one of several indicators that could help in recognizing SLAPPs, allowing a broader margin of appreciation for legal interpreters. In contrast, the Directive’s scope is limited to unfounded claims.

According to its title, the Directive operates within a dichotomy, providing safeguards against (a) manifestly unfounded claims or (b) abusive court proceedings. While it does not define “manifestly unfounded” or “unfounded”, it expands the definition of “abusive court proceedings against public participation.”

According to the definition, “‘abusive court proceedings against public participation’ mean court proceedings which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties, and which pursue unfounded claims”. Although the title and scope of the Directive suggests (a) and (b) as alternating categories (as indicated by the conjunction “or”), the definition of abusive court proceedings introduces “and,” requiring unfoundedness as part of both categories. This raises the question of whether the two are truly alternatives. (Note: most interpretations suggest that (a) and (b) are indeed alternatives, however, that contradicts the grammatical interpretation.)

One understanding could be that the Directive places “manifestly unfounded” claims and “abusive court proceedings” on a spectrum—with “manifestly unfounded”, as ab ovo unfounded at one end and “abusive” cases, potentially less clearly unfounded, further along that continuum. However, this interpretation creates additional uncertainty for courts in determining where to position a given case on that spectrum.

An interpretation aligned with paragraph 29 of the Directive’s preamble—which provides context for its operative definitions—suggests that only proceedings that are either fully or partially unfounded can be classified as abusive. If this is accepted, the Directive effectively collapses its own dichotomy, making unfoundedness the sole defining element and rendering the distinction between the two categories functionally meaningless. 

This distinction becomes most relevant when determining the appropriate safeguards. Defendants facing manifestly unfounded claims benefit from an early dismissal mechanism, whereas those facing abusive court proceedings—though still partially unfounded—must endure the full process and may only seek reparation after proceedings conclude. The legal uncertainty leaves the court’s decisions subject to accusations of cherry-picking. 

Despite earlier debates over elements of the definition and criticism of the distinction between manifestly unfounded claims and abusive court proceedings in terms of available remedies, this differentiation has persisted, along with the ambiguity surrounding 'unfoundedness.' The lack of a clear definition has left stakeholders in a state of legal uncertainty.

 

Unfoundedness in the context of GDPR-based SLAPPs

 

When examining what unfoundedness means for GDPR-based SLAPPs in Hungary, it is essential to continue distinguishing between the primary claim and the ancillary claims.

As discussed previously, the family members raised two distinct claims: the primary claim, namely the lack of legal basis for processing personal data, and the ancillary claims, concerning the failure to adhere to its procedural obligations.

First, let us examine the primary claim. The family argued that, in the absence of a legal basis, Forbes had no right to publish their personal data. The courts ultimately held that the press had a legitimate interest in reporting on the family members, given their receipt of public funds. However, as the GDPR was a relatively new legal instrument and no relevant precedent existed at the time, the legal question was considered unsettled until a final judgment had been delivered. Consequently, until then, the possibility of classifying such claims as unfounded could not have been seriously contemplated.

And although this decision enabled the press to report on the family in these circumstances, the publication of the family members’ personal data in other contexts will likely continue to be assessed on a case-by-case basis, meaning such claims may not be considered ab ovo (manifestly) unfounded. The case illustrates that unsettled legal questions are inherently difficult to classify as unfounded, allowing SLAPP proceedings to persist and continue imposing a burden on the press.

Second, when examining the ancillary claims, defining "unfoundedness" becomes even more ambiguous. Article 85 of the GDPR states: “Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information.” From a legal positivist perspective, the absence of implementing legislation under Article 85 of the GDPR has significant consequences. Since no national laws have been adopted to clearly define the boundaries of such reconciliation (for example, by exempting the press from the obligation to preliminarily, individually, and proactively inform data subjects, that is required of other data controllers like big companies), individuals may lawfully invoke GDPR provisions even in ways that restrict journalistic activities or the freedom of the press. As a result, legal claims based on alleged violations of GDPR obligations by the press cannot automatically be deemed unfounded. Therefore, under the Directive’s definition, such claims cannot be classified as SLAPPs.

However, the legal positivist approach is problematic, as it completely disregards context and fundamental rights aspects. From a fundamental rights perspective, it is contrary to freedom of the press to require full compliance with all GDPR-based duties, as it significantly hinders the press’s constitutional role. The lack of reconciliation in Hungary therefore constitutes a constitutional loophole, and exploiting such a loophole should never constitute a well-founded claim: applying the law in a way that contradicts the state’s positive obligations to protect the press and disproportionately hinders its operation is inherently problematic. It also disregards the state’s obligations stemming from the GDPR itself, as it uses mandatory language.

Furthermore, at the European level, the varying degrees of reconciliation between freedom of the press and data protection under Article 85 make it increasingly difficult and uncertain to draw a consistent line around unfoundedness.

 

The European interest

 

While the lawsuits against Forbes will most likely fall outside the Directive’s scope—due to their domestic nature and the fact that the procedure based on the DPA’s decision is administrative—interpreting the Directive’s definition remains relevant, particularly for future cross-border cases that do fall within its scope. Furthermore, the Directive sets only a minimum standard, meaning that national transpositions can expand its scope to include domestic cases, where unfoundedness would still be a determining criterion. Additionally, early-dismissed cases will likely reach the ECtHR, whether brought by the press or the claimant—ultimately forcing the Court to engage with the Directive’s interpretation. The relevance of interpreting the definition of the Directive extends beyond GDPR-based SLAPPs, as other claims that lack precedent or exploit constitutional loopholes can fall outside the scope of the Directive due to the definition. 

As the CoE Recommendation’s scope is not limited to cross-border claims, assessing the current cases from its perspective is highly relevant. In fact, since the ECtHR was established by the Council of Europe, the CoE Recommendation remains an important interpretive source when the Court rules on SLAPP-related cases.

These GDPR-based cases highlighted that the prolonged proceedings and ongoing legal uncertainty drain press resources and have already created a chilling effect. However, within the Directive’s framework, GDPR-based SLAPPs may not even fit the definition of “abusive court proceedings”. Even if they do, it is unlikely they would qualify as “manifestly unfounded,” placing them outside the scope of the early dismissal mechanism. As a result, the Directive might fail to effectively combat SLAPPs, especially the ones emerging in legal grey zones—even when defendants (the press) ultimately win. To put it more bluntly, the narrow definition could completely thwart the objective of the Directive and jeopardize its long-term legitimacy.

While broadening the definition of manifestly unfounded claims carries risks, it is unlikely that the drafters intended early dismissal to apply only in rare cases. The CoE Recommendation’s approach appears to offer a more suitable reference point for identifying SLAPPs. But let us wait and see what the ECtHR has to say. Until then, legal uncertainty continues to shield SLAPPs under the guise of procedural compliance. 

 

Acknowledgements: I would like to sincerely thank Beatrix Vissy and Tivadar Hüttl for their valuable insights and contributions.