Proposals to extend the list of EU crimes to all forms of hate crime and hate speech
In “Protecting our democracy, upholding our values”
Article 83(1) TFEU provides for an exhaustive list of areas of particularly serious crime with a cross-border dimension (known as 'EU crimes') for which the European Parliament and the Council may establish minimum rules concerning the definition of criminal offences and sanctions. Under Article 83(1), third subparagraph, based on 'developments in crime', the Council may adopt a decision (subject to the consent of the Parliament) extending this list by adding other areas of crime. The Commission may present an initiative to trigger such Council decision, through a Communication to the European Parliament and the Council.
On 16 September 2020, European Commission President von der Leyen announced, in her State of the Union Address at the European Parliament and in the accompanying letter of intent, a new initiative on extending the list of EU crimes to all forms of hate crime and hate speech - whether because of race, religion, gender or sexuality. It was later mentioned in the Commission Work Programme 2021 and in February 2021, the Commission published a roadmap on the initiative, scheduled for the fourth quarter of 2021.
On 9 December 2021, the Commission published the Communication: A more inclusive and protective Europe: extending the list of EU crimes to hate speech and hate crime, inviting the Council to adopt a decision identifying hate speech and hate crime as another area of crime meeting the criteria set out in Article 83(1) TFEU. A proposal for such Council decision is annexed to the Communication. If adopted, the Commission may make a proposal based on Article 83 TFEU for a directive on minimum rules concerning the definition of criminal offences and sanctions in this area of crime. Such directive would be adopted by the Parliament and the Council under the ordinary legislative procedure.
In the European Parliament, an own-initiative procedure was started under the previous legislature with the file assigned to the Committee on Civil Liberties, Justice and Home Affairs (LIBE). Maite Pagazaurtundúa (Renew, Spain) was appointed as rapporteur in January 2023. The Committee on Women's Rights and Gender Equality (FEMM) was designated as committee for opinion. It appointed Vera Tax (S&D, Netherlands) as rapporteur for opinion.
On 4 March 2022, the Council examined the proposal and a very broad majority was in favour of the initiative. However, since then, the file has stalled at the Council, which has not reached unanimity required to adopt a decision extending the list of crimes. On 18 May 2022, the European Economic and Social Committee adopted an opinion on the subject and so did the European Committee of the Regions on 30 November 2022.
In the Parliament, the draft report was presented on 28 June 2023. On 25 October 2023, the FEMM Committee adopted an opinion with a number of suggestions to be incorporated by the LIBE Committee in its motion for the resolution. The LIBE Committee adopted its report on 13 November 2023 and the Parliament endorsed it in plenary on 18 January 2024.
The January 2024 resolution bemoans the lack of progress on the file in the Council, urging it to adopt the decision so that the Commission can initiate the second stage of the procedure. Deploring the fact that Article 83 TFEU requires unanimity in the Council, it calls for the 'passerelle clause' to be activated.
The Commission is encouraged to consider an open-ended approach with the list of grounds of discrimination not being limited to a closed list in order to adapt to changing social dynamics. Moreover, the resolution addresses specific aspects of hate speech and hate crimes. It thus calls on the Commission and the Member States to act against misuses of the internet and social media, stressing that the business model of social media platforms, based on micro-targeted advertising, contributes to spreading and amplifying hate speech. It also notes that particular attention should be paid to minors to protect them from hate speech and hate crime and prevent the incidents of e.g. bullying in schools and cyber-bullying.
In December 2023, the Commission and the High Representative adopted a joint communication that urged the Council to decide on the extension of the 'EU crimes' list. Moreover, the communication outlined numerous Commission's commitments including stepping up the work on combating hate speech online through an upgrade of the Code of conduct agreed with major online platforms, supporting measures to enhance the protection of places of worship via an increased budget of the Internal Security Fund, as well as designating 'envoys' on combating antisemitism and fostering Jewish life, combating anti-Muslim hatred and combating racism.
In May 2024, the Commission published a response to the January 2024 resolution of the Parliament. Welcoming the Parliament's support, the Commission addressed the specific recommendations outlined in the resolution.
References:
- European Parliament, Extending the list of EU crimes to hate speech and hate crime, 2023/2068(INI)
- European Parliament, Resolution of 18 January 2024 on extending the list of EU crimes to hate speech and hate crime
- European Commission, Communication: A more inclusive and protective Europe: extending the list of EU crimes to hate speech and hate crime, COM(2021) 777 final, 9 December 2021
- European Commission, Annex to the Commission Communication on extending the list of EU crimes to hate speech and hate crime, COM(2021) 777 final, 9 December 2021
- European Commission, Joint Communication to the European Parliament and the Council 'No place for hate: a Europe united against hatred', December 2023
- European Economic and Social Committee, Opinion on Communication from the Commission to the European Parliament and the Council — A more inclusive and protective Europe: extending the list of EU crimes to hate speech and hate crime, EESC 2022/00299
- European Committee of the Regions, Extending the list of EU crimes to hate speech and hate crimes, opinion CDR 1407/2022
Further reading:
- B. Immenkamp, Hate speech and hate crime: Time to act?, briefing, EPRS, September 2024
- B. Immenkamp, Criminalisation of hate speech and hate crime in selected EU countries, briefing, EPRS, November 2024
- EPRS, Unlocking the potential of the EU Treaties: An article-by-article analysis of the scope for action, pp. 37-38, May 2020
- Policy Department for Citizens’ Rights and Constitutional Affairs, Hate speech and hate crime in the EU and the evaluation of online content regulation approaches, 2020
- European Commission, Hate speech & hate crime – inclusion on list of EU crimes, Roadmap
Author: Piotr Bąkowski, Members' Research Service, legislative-train@europarl.europa.eu