European Commission’s initiative on “hate speech” and “hate crime” may infringe constitutional freedoms

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· The European Commission has brought forward a proposal to the European Parliament and the Council of the European Union to include “hate speech” and “hate crimes” in the Treaty on the Functioning of the European Union as an “EU crime”.

· These acts do not meet most of the conditions set out in Article 83(1) of the TFEU required to extend the list of “EU crimes”.

· The entry into force of the initiative could be in violation of values such as freedom of speech, freedom of assembly, freedom of conscience or freedom of religion, guaranteed by the Polish Constitution and acts of international law.

· It may also force Member States to qualify particular behaviour as falling under the new area of crime.

· The Ordo Iuris Institute has prepared a relevant analysis.

In December 2021, the European Commission brought forward an extension to the Treaty on the Functioning of the European Union, which is one of the most important EU treaties, to add “hate speech” and “hate crime” to the list of “EU crimes”. Trafficking in human beings, sexual abuse of women and children, illegal arms trafficking and more are currently considered to be “EU crimes”. If implemented, the initiative would possibly make it compulsory for all EU Member States to penalise the new category of “EU crimes”, while at the same time laying down minimum standards relating both to the definition of the acts covered by the new area of crime and to the degree of penalty for these acts.

The Commission’s initiative requires unanimity on the part of the Council of the European Union and thus the approval of all Member States. A unanimous decision of the Council to extend the list of EU crimes in Article 83(1) of the TFEU would be the first step towards creating the legal basis necessary for the adoption, as the second step, a common legal framework for the establishment of minimum standards relating to the definition of crimes and the measures of penalties for offences covered by the new area of crime. Importantly, at the second stage of implementing the Commission’s initiative, unanimity would no longer be required from the Council. However, it is only then that the definition of hate speech and hate crime would be clarified. In practice, this situation may force Member States to qualify specific behaviour as falling under the new area of crime, despite some of them objecting to do so.

Furthermore, the extension of the catalogue of EU crimes depends on the fulfilment of certain material and legal conditions enshrined in the Treaty. Among other things, it is required that a new area of crime should relate to a particularly serious crime, should have a cross-border dimension and should be justified by the increasing incidence of the crime. All of these conditions should be met together, which is not the case with the new area of crime proposed by the Commission.

It is not a particularly serious area of crime as defined in Article 83(1) of the TFEU. The existing catalogue of EU crimes covers types of offences that seriously and directly affect life and freedom, threaten peace, the vital financial interests of states or the functioning of states.

The Commission argues that the extension of the list of EU crimes is necessary due to the rapid increase in incidents of hate speech and hate crime over recent decades. However, in its communication of 15 November 2021, the OSCE Office for Democratic Institutions and Human Rights highlights that many of the statistics kept by countries in the OSCE region on hate crimes are based on inadequate or insufficient recording mechanisms. They do not distinguish between hate crimes and other types of crimes. At the same time, even if these statistics were considered legitimate, OSCE reports demonstrate that penalisation of crimes such as racism and xenophobia in individual European states do not reduce this crime rate.

The proposed amendment to the Treaty on the Functioning of the EU would therefore also be incompatible with the principle of proportionality, which applies to EU institutions when exercising their powers and which requires, among other things, that the measures taken should be appropriate and necessary to achieve the objectives pursued. Furthermore, it would violate the values protected by the Constitution of the Republic of Poland, as well as by the EU Charter of Fundamental Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. the main pillars for the protection of fundamental rights in the European Union. In practice, if implemented, the Commission’s initiative would pose a real threat to values such as freedom of speech, pluralism of opinions, freedom of assembly, freedom of conscience and religious freedom.