The Commission proposes to extend the list of ‘EU crimes’ to hate speech and hate crime

This article is brought to you in association with the European Commission.

Today, the European Commission is presenting an initiative to extend the list of ‘EU crimes’ to hate speech and hate crime, as announced by President von der Leyen in her 2020 State of the Union speech.

Hate speech and hate crime have seen a sharp rise across Europe and have become a particularly serious and worrying phenomenon – offline and online. Common EU action is needed to tackle this EU-wide challenge. However, currently there is no legal basis to criminalise hate speech and hate crime at EU level. The existing list of EU crimes in the Treaty on the Functioning of the European Union (TFEU) needs to be extended to ensure minimum common rules on how to define criminal offences and sanctions applicable in all EU Member States. Today’s initiative is the first step in the process of extending the list of EU crimes. The next step would be for Member States to approve the initiative, before the Commission can present a legislative proposal. 

Vice-President for Values and Transparency, Věra Jourová, said: “Hate has no place in Europe. It goes against our fundamental values and principles. We need EU action to make sure that hate is criminalised the same way everywhere in Europe.”

Commissioner for Justice, Didier Reynders, said: “We need a strong response to the challenges posed by hate speech and hate crime across the EU: now and in the future. Today’s initiative is an important step towards a more effective European response to such threats against pluralism and inclusiveness. We won’t allow such phenomenon to weaken our democracies.”

Key elements of the Communication:

Today’s initiative sets out evidence for extending the list of EU crimes to hate speech and hate crime in the light of the criteria laid down in Article 83(1) TFEU:

• The cross-border dimension of hate speech and hate crime: Online hate speech spreads fast and is accessible to everybody anywhere. The ideologies behind hate speech and hate crime can be developed internationally and can be rapidly shared online. Hate crimes can be committed by networks with members from several countries.
• Hate speech and hate crime as an area of crime: The Commission considers that hate speech and hate crime are an area of crime as they share an intrinsic special feature, i.e. ‘hatred’ targeting persons or groups of persons sharing (or perceived as sharing) the same protected characteristics.
• Hate speech and hate crime as an area of particularly serious crime: Hate speech and hate crime are particularly serious crimes as they undermine the EU common values and fundamental rights, as enshrined in Articles 2 and 6 Treaty on European Union, as well as in the Charter. They have harmful impacts on the individuals, their communities and on society at large.
• Developments in crime: There has been a steady increase in the two phenomena due to various economic, social and technological changes and developments. The COVID-19 pandemic has been one of the factors contributing to this increase.
• No alternatives to extending the list of EU crimes: Hate speech and hate crime are criminalised to a varying degree in the EU Member States. Only the extension of the list of EU crimes to hate speech and hate crime can enable an effective and comprehensive criminal law approach to these phenomena at EU level, along with a consistent protection of the victims of such acts.

Next steps

The Council needs to unanimously adopt, after obtaining the consent of the European Parliament, a decision identifying hate speech and hate crime as another area of crime that meets the criteria set out in Article 83(1) of the TFEU.

Following that, the Commission may propose the adoption of legislation establishing minimum rules on the definitions and sanctions of hate speech and hate crime to be adopted by the European Parliament and the Council in line with the ordinary legislative procedure.

Background

The external study published today confirms the scale and worrying trend of hate speech and hate crimes. The increase in the level of hatred manifested against for example of Roma, Jews, Muslims and persons of Asian origin, or those perceived to be of such origin, including racist attacks and beatings, violent bullying, threats and racist abuse has increased during the pandemic. Sources found that 52% of young women and girls have experienced online violence, including threats and sexual harassment, while persons with disabilities are more at risk of being victims of violent crimes, including hate crimes, than other persons, and to face harassment.

Hate crime and hate speech are going against the fundamental European values set out in Article 2 of Treaty on EU. Pursuant to Article 83(1) of the Treaty on the Functioning of the EU (‘TFEU’), the European Parliament and the Council may establish minimum rules on the definition of criminal offences and sanctions in areas of particularly serious crime with a cross-border dimension. Such areas are, for example, terrorism, trafficking in human beings and sexual exploitation of women and children. Based on developments in crime, the Council may adopt a decision identifying other areas, like these, enabling the Commission– in a second step – to propose a robust framework to address hate speech and hate crime at the EU level.

At EU level, there is already in place a framework for a strong common response to racist and xenophobic hate speech and hate crime through the Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. The Framework Decision aims to ensure that serious manifestations of racism and xenophobia are punishable by effective, proportionate and dissuasive criminal sanctions across the EU. It requires Member States to criminalise hate speech, i.e. the public incitement to violence or hatred, on grounds of race, colour, religion, descent or national or ethnic origin. It also requires Member States to ensure, for offences other than hate speech, that such racist and xenophobic motivation is considered as an aggravating circumstance, or alternatively that such motivation may be taken into account in the determination of the penalties.

The Commission supports Member States’ efforts to effectively implement the Framework Decision through the work of the High Level Group on combating Racism and Xenophobia and other forms of intolerance.

Today’s initiative is part of a broader set of EU actions to counter illegal hate speech and violent extremist ideologies and terrorism online, such as the EU Code of Conduct on countering illegal hate speech online, the proposed Digital Services Act, the Regulation on addressing terrorist content online and the EU Internet Forum.

This initiative will support the EU Anti-racism Action Plan 2020-2025 and the Strategy on combating antisemitism and fostering Jewish life in the EU, as well as the Gender Equality Strategy 2020-2025.