Criminalising Hate Crime and Hate Speech at EU Level: Extending the List of Eurocrimes Under Article 83(1) TFEU

In September 2020, President von der Leyen announced the Commission’s intention to propose to extend the list of EU crimes or Eurocrimes to all forms of hate crime and hate speech, as later reflected in the Commission Work Programme 2021. The article first examines the need for such action at EU level, highlighting also certain shortcomings with existing regulation of hate crime and hate speech across the EU. Next, it raises a few additional challenges, relating to the regulation of the freedom of expression in view of the historical experience in some EU countries, the criminal offence element of public order violation or endangerment, and the harm-offence distinction. It then inspects whether specific conditions for EU action under Article 83(1) TFEU can be satisfied by the proposed area(s) of crime, not only from the perspective of a textual legal analysis but also drawing where appropriate on relevant empirical data. While acknowledging the somewhat controversial topic of regulation in the already sensitive field of EU criminal law as well as certain clear political hurdles linked with the procedural aspects of enlarging the EU crimes’ list, it is submitted that the mentioned crimes and their regulation raise legitimate concerns that warrant the proposed legislative action at EU level.