Will the alleged hatred speech be an EU crime?

The European Parliament is due to vote this Thursday to extend the categories of EU crimes to include the alleged hatred speech and hatred crimes. Ordo Iuris points out that the proposal to add hatred speech to the list of EU crimes raises many concerns and argues against the project.

The Ordo Iuris Institute for Legal Culture notes that as early as December 2021, the European Commission sent a communication to the European Parliament and the European Council entitled "More inclusive and safe Europe: extending the list of EU crimes to incite hatred and hatred crime". In order to combat these negative phenomena, the European Commission has developed a task to add to the list of EU crimes called hatred speech and hatred crimes, based on Article 83(1) of the Treaty on the Functioning of the European Union. The proposal was justified, among another things, by the alleged increase in the number of incidents related to hatred speech and hatred crimes or the increase in hatred speech on the net and social media in fresh years. It besides referred to the cross-border nature of these acts and the request to defend human rights and EU values.

Ordo Iuris monitored work on an EU task bearing the fruit of a memorandum drawn up by the Institute, which was sent to Members of the European Parliament in connection with the vote at the plenary session, scheduled for 18 January 2024. The paper sets out a number of crucial arguments in favour of rejecting EU plans.

Ordo Iuris points out that the EU task does not fulfil any of the conditions set out in Article 83 (1) TFEU. This provision grants the European Parliament and the Council of Europe powers to legislate in 10 well-defined areas, which are peculiarly serious cross-border crime. It is alleged minimum standards setting basic standards of protection, including definitions of crime and penalties. The memorandum points out that the behaviours of the “invoking hatred and hatred crimes” and, for example, the “vilification” or “training” of a individual should be powerfully negative. It has been noted that specified acts cannot be classified as ‘particularly serious cross-border crime’. It is not possible to compare "calling to hatred" with crimes specified as terrorism or sexual exploitation of women and children. In addition, hatred speech offences mostly do not have cross-border characteristics, as highlighted in the memorandum.

Attention has besides been paid to the hazard of a vague definition of terms specified as "hate speech" or "hate crime", which could have far-reaching negative effects if the task was adopted. This is due to the fact that the Council of Europe will first unanimously agree to recognise the vague, freely interpreted terms “loath speech” and “hate crime” as European offences, and only later will their definitions be clarified by means of a directive which will no longer require unanimity by the Council.

The memorandum besides highlighted the problems related to the effectiveness of this kind of regulation, as an example of the experience of any EU associate States that have chosen to adopt akin solutions. In this context, it is cited. casus Belgium, France and Spain, which have introduced rules on hatred speech on sexual orientation and socio-cultural sex (gender), which yet did not translate and a crucial decrease in the number of criminalised crimes.

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