Steve Peers

Coinciding with International Holocaust Remembrance Day, the European Commission has released its initial assessment of how EU member states are putting into action the EU Framework Decision. This legislation addresses combating racism and xenophobia through criminal law.

Putting EU Law into Practice

EU member states were obligated to incorporate this law, a carryover from the pre-Lisbon Treaty era, by December 2010. The Council was then expected to evaluate the member states’ progress based on the Commission’s report by November 2013. While the Commission’s report is slightly delayed, this is common, as member states often provide implementation updates late. Applying this law is mandatory for all member states, though the UK intends to opt out from December 2014 onward without plans to rejoin.

A critical initial legal question is whether member states have correctly implemented their obligations as outlined in the Framework Decision. This framework mandates the criminalization of: publicly inciting violence or hatred based on race and other factors; distributing materials with the same objective; denying, downplaying, or condoning war crimes, genocide, and crimes against humanity as defined by the International Criminal Court’s Rome Statute; and denying or downplaying the Holocaust.

The Commission’s report highlights potential instances where the Framework Decision is not being fully implemented. For example, two member states add further prerequisites for establishing criminal liability in the first category of offenses. Some members fail to explicitly state that the crimes apply to both individuals and groups. Two member states use “nationality” instead of “national origin.” Regarding the Rome Statute crimes and Holocaust denial, some member states’ laws don’t encompass all forms of conduct outlined in the first category or fully reflect the obligations related to Holocaust denial. Specifically, two member states limit the criminalization of Holocaust denial to cases involving their own nation or citizens. Some members lack specific laws on these matters, although a comprehensive law against incitement to violence covering all relevant actions could suffice.

Under the EU law, member states must either categorize racist and xenophobic motives as aggravating circumstances or allow courts to consider them during sentencing. Certain member states apply this solely to specific violent crimes. Additionally, some member states place conditions on the rules concerning the liability of legal entities or don’t fully implement jurisdiction rules, particularly regarding offenses committed online.

Looking ahead, the Commission proposes several recommendations for member states. These cover areas like specialized hate crime units, information sharing, cross-border collaboration, data collection, victim rights, and the influence of public figures. The Commission plans to engage with member states until December 1, 2014, to discuss the correct implementation of the Framework Decision. After this date, the Commission can initiate infringement proceedings concerning pre-Lisbon Treaty legislation. The report doesn’t mention any potential amendments to the legislation or address specific issues the Council is required to review (specifically, judicial cooperation on the relevant crimes).

Observations

It’s understandable that the Commission is delaying infringement proceedings, as they are unable to do so until the end of this year. Afterward, this legislation will become another EU measure that the Commission should strongly enforce through such proceedings if it’s genuinely committed to upholding the EU Charter of Fundamental Rights.

Amending the Framework Decision could provide clearer interpretation and, more importantly, enhance its provisions. The Commission’s recommendations to member states, for instance, could be integrated into the legislation, except for those concerning victim rights, which will become binding once the EU’s crime victims directive is implemented in 2015. However, the Commission doesn’t address potential amendments at all.

More significantly, the Framework Decision (or its successor Directive) could be broadened to cover additional forms of hate crime. The Commission might be avoiding the topic of amendment due to the current Treaties lacking a specific legal basis for this. While racism and xenophobia aren’t explicitly listed as crimes the EU can combat under Article 83(1) TFEU, they arguably fall under Article 83(2) TFEU. This article empowers the EU to adopt criminal law measures related to areas where the EU has established harmonization. Given the EU’s ban on race-based discrimination in all goods and services, and the potential impact of racial hatred crimes on equal access to transport, shopping, and leisure activities, further EU action could be justified on this basis. This argument also applies to bias crimes against women, given the existing EU harmonization on gender equality.

However, advocating for EU measures against hate crimes based on sexual orientation, disability, religion, or age is more challenging. The EU has only harmonized laws regarding workplace equality in these areas. Once the Commission’s proposed Directive extending equal treatment to these four grounds of discrimination is passed, a subsequent measure addressing related hate crimes could be proposed.

Barnard & Peers: chapter 25, chapter 20