Faced with an increasingly complex fight against cross-border crime, the European Commission, in collaboration with the Polish Presidency of the Council of the EU, has made the development of ‘Euro-crimes’ one of the main topics of discussion at the first plenary session of the High-Level Forum on the Future of Criminal Justice in the EU, held in Brussels on Tuesday 4 March.
The European Commissioner for Democracy, Justice, the Rule of Law and Consumer Protection, Michael McGrath, outlined the challenges of changing the current legal framework: “This could involve re-examining the EU'’s list of criminal offences and possible new areas for action in the field of substantive criminal law”.
EU criminal law is based in particular on Article 83 of the Treaty on the Functioning of the European Union (TFEU), which defines a restricted list of crimes considered to have a significant cross-border dimension, such as terrorism, human trafficking, or corruption.
The emergence of new threats, however, such as hate crimes, cybercrime and foreign interference, is prompting several European players – Member States and institutions – to call for a broader list of offences.
This proposal is provoking debate because it raises issues of judicial sovereignty. Some Member States fear that increased harmonisation of European criminal law will weaken their own national systems.
The inclusion of hate crimes and hate speech as ‘Euro-crimes’ is also a major issue.
In 2021, the European Commission invited the EU Council to adopt a decision identifying hate speech and hate crime as another area of crime. On 4 March 2022, the EU Council examined the proposal and a very large majority voted in favour of the initiative. But since then, even though the Parliament also voted in favour of a report to this effect in January 2024 (see EUROPE 13330/17), the matter has been blocked in the EU Council, which has not achieved the unanimity needed to adopt a decision extending the list of crimes.
“There is a broader reflection on the fact that extending coverage to hate crimes is a subject on which EU Member States agree, but we know that this could create additional obstacles regarding the modification of EU legislation on this subject”, admitted Polish Justice Minister Adam Bodnar.
Harmonisation of criminal law is therefore an inescapable problem, despite resistance to it. The Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), Javier Zarzalejos (EPP, Spanish), noted that “the harmonisation of substantive criminal law in the EU should contribute to the development of a common legal culture in the fight against crime”.
This harmonisation is not synonymous with total standardisation, but rather with creating a common reference framework of definitions and minimum sentences for certain offences, while respecting national legal traditions.
The European Commission will therefore have to set about finding a balance.
As Commissioner McGrath pointed out, “our objective must be to maximise the impact of the legal and administrative framework that we have collectively put in place”. (Original version in French by Nithya Paquiry)