The Treaty on the Functioning of the EU gives the European Parliament and the EU Council the option to adopt common rules on criminal offences in “areas of particularly serious crime with a cross-border dimension”. Terrorism, trafficking in human beings, arms trafficking, money laundering, corruption, and computer crime are currently considered as such.
This list may soon be extended to include hate speech and hate crimes. This is at least the wish expressed by Ursula von der Leyen in September 2020 (see EUROPE 12561/3) and the request formally expressed by the European Commission on Thursday 9 December.
However, to achieve this, the institution will have to convince the Member States. It is up to the EU Council to adopt a decision identifying new areas of European crime.
The European Commission therefore issued a Communication on Thursday inviting the EU Council to take action in this regard.
Increase in hate crime and hate speech
In it, the European Commission emphasises the necessity and legitimacy of its approach. “There is evidence for extending the list”, the European Commission says, noting, first of all, a sharp increase in and trivialisation of hate speech and hate crime in the EU.
Based on reports from various European bodies, the institution notes, for example, that one in ten LGBTIQ+ people report having been physically or sexually assaulted because of their gender identity. It is also concerned about hate speech and hate crime, particularly cyber-violence, targeting women (see EUROPE 12763/22).
The European Commission also notes an increase in hate speech and hate crime against people of Asian, sub-Saharan and North African origin, and against Roma people, and cites the results of studies by the EU Agency for Fundamental Rights showing an increase in anti-Semitic and Islamophobic acts.
To date, hate speech based on sexual orientation is criminalised in 20 Member States, and gender-based hate speech in 17. Disability-based and age-based discrimination are illegal in 14 and 6 states respectively.
Cross-border dimension and a common feature
“This background underlines the special need to combat hate speech and hate crime on a common basis”, the European Commission insists.
It justifies its request by stressing the cross-border dimension of these acts. “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”, it summarises.
The institution also considers that hate speech and hate crime form a “field of criminality”, since they share an “intrinsic special feature”, namely hatred towards a group of people or a member of a group, defined by reference to religion, national or ethnic origin, gender or sexual orientation, etc.
The perpetrator’s motivation - the discriminatory motive - is also a “key element” in “distinguishing these offences from other crimes and in determining their greater gravity”, the European Commission says.
Proposed decision
In addition to its communication on Thursday, the institution sent the EU Council a proposal for a decision to add this new area of crime.
Initially, the EU Council will have to unanimously adopt this proposal for a decision “with the consent of the European Parliament”.
Once adopted, the EU will have a legal basis for the European Commission to develop directives to establish, for example, common sanctions for hate crimes and hate speech.
The proposal was briefly presented on Thursday to the Council working group that will be responsible for this dossier. An exchange of views on the fight against hate speech and hate crime will also take place at the 'Justice' Council on Friday 10 December during a working lunch of EU justice ministers (see other news).
To consult the communication: https://bit.ly/3oFV3PG
To see the draft decision (in French): https://bit.ly/3pHL2R9 (Original version in French by Agathe Cherki)