Holocaust denial and hate crime: Can the EU and its Member States do more?

Steve Peers

The European Commission has chosen today, the International Holocaust Remembrance Day, to release its first report on Member States' implementation of the EU Framework Decision on combating racism and xenophobia by means of criminal law.

Implementing the EU legislation

Member States had to implement this law, a relic of the pre-Lisbon 'third pillar' of EU law (setting out special rules on policing and criminal law measures) by December 2010, and the Council had to assess the Member States' implementation of the rules, on the basis of the Commission report, by November 2013. So the Commission report is a little late, but most such reports arrive even later (due to Member States' tardy reporting on their implementation). All Member States must apply this law, although the UK is planning to opt out as of December 2014, and does not intend to apply to opt back in.

The first crucial legal question is whether Member States have properly implemented their obligations under the Framework Decision. They are obliged to criminalise: public incitement to violence or hatred based on race, et al; dissemination of tracts to the same end; the denial, trivilisation et al of war crimes, genocide and crimes against humanity as defined in the Rome Statute establishing the International Criminal Court; and denial or trivialisation of the Holocauat.

The Commission identifies some apparent breaches of the Framework Decision here; for instance, two Member States insist on some further conditions being met before criminal liability attaches to the first category of actions. Some Member States do not specify that the crimes can apply to an individual or to a group. Two Member States refer to 'nationality' instead of 'national origin'. As regards the Rome Statute crimes and Holocaust denial, some Member States' laws do not refer to all types of actions referred to as regards the first type of crime, or do not fully reflect the obligations as regards Holocaust denial. In particular, two Member States only criminalise Holocaust denial in relation to their own nation or citizens. Some Member States have no specific provisions on these issues, although arguably a general law on incitement to violence that fully covers all of the relevant actions would be sufficient.

According to the EU law, Member States must either provide for racist and xenophobic motives to be considered an aggravated circumstance, or provide that courts may take those motives into account. Some Member States restrict this obligation to certain violent crimes only. Furthermore, some Member States attach conditions to the rules regarding liability for legal persons, or do not fully apply the rules on jurisdiction, in particular as regards offences committed over the Internet.

As to the future, the Commission makes a number of recommendations to Member States, as regards (for instance) special hate crimes units, the exchange of information, cross-border cooperation, data collection, the rights of victims and comments by opinion leaders. The Commission intends to discuss the correct implementation of the Framework Decision with Member States up to 1 December 2014 - the date when it can begin infringement proceedings as regards pre-Lisbon third pillar legislation. It does not make any mention of any amendment of the legislation, or of the specific issues which the Council is required to review (the issue of judicial cooperation as regards the relevant crimes).

Comments

The Commission cannot be criticised for holding off on bringing infringement proceedings, since it cannot do so until the end of this year. After that point, this legislation will be another EU measure which the Commission ought to enforce vigorously by means of infringement proceedings if it is, as it claims, committed to ensuring the full implementation of the EU Charter of Fundamental Rights in practice.

It would be possible to clarify the interpretation of the Framework Decision if it were amended, and more importantly, its provisions could be improved. For instance, the recommendations which the Commission makes to Member States in its report could be incorporated into the legislation (except for the point concerning the rights of victims, which will become binding anyway once the EU's crime victims directive is implemented in 2015). The Commission does not consider the issue of possible amendments at all.

More significantly, the scope of the Framework Decision (or rather, the future Directive) could be enlarged, to cover other forms of hate crime. The Commission perhaps avoids mentioning the issue of amendment because of the lack of a specific legal base dealing with this issue in the current Treaties. True, racism and xenophobia are not listed among the crimes the EU can combat in Article 83(1) TFEU. But they surely fall within the scope of Article 83(2) TFEU, which gives the EU power to adopt criminal law measures when necessary in relation to a matter which the EU has harmonised. Since the EU has banned discrimination on grounds of race as regards all goods and services (inter alia), and it surely would interfere with equal access to transport, shopping and recreation (for instance) if crimes of racial hatred were committed, it could be argued that further EU measures could be adopted on this basis. The same would apply to bias crimes against women, given the scope of EU harmonisation already on the issue of gender equality.

However, it would be harder to argue that a legal power exists for the adoption of EU measures banning hate crime on grounds of sexual orientation, disability, religion or age, since the EU has only harmonised the law as regards equality in employment as regards those issues. When or if the Commission's proposed Directive extending equal treatment as regards these four grounds of discrimination is adopted, then a further measure relating to hate crime on the same grounds could be proposed.

Barnard & Peers: chapter 25, chapter 20

When does the EU Charter of Rights apply to private parties?

Professor Steve Peers, University of Essex

The Court of Justice of the European Union (CJEU) has today further clarified the circumstances in which the EU's Charter of Rights can be invoked against private parties. In Association de Mediation Sociale (AMS), trade unions challenged a private employer's refusal to establish worker consultation pursuant to an EU Directive. The employer had acted consistently with French law, which had implemented the EU Directive but allowed exclusions for apprentices and other forms of special employment contract.

The judgment

First of all, the CJEU ruled that the French law breaches the Directive, which does not provide for the exclusion of such categories of employee from its scope. But how can this breach of EU law be remedied, on the facts of this case? The Court states that while the relevant rule in the Directive is precise enough to have direct effect, Directives (following well-known and long-established case law) cannot be invoked against private parties.

Also, the CJEU confirms prior case law which states that the principle of indirect effect (as it is usually called), ie the requirement for national courts to interpret national law to be consistent with EU Directives, meets its limits where (as in this case) there is an unambiguous contradiction between the national law and the relevant EU Directive.

Towards the end of the judgment, the Court mentions the long-established prospect of suing a Member State for damages for its failure to implement a Directive correctly. However, on the facts of this case, it's hard to see how that remedy could work well. Perhaps the union or an employee could argue that if worker consultation had been established, it could have persuaded the employer not to make redundancies (for instance). But really what the unions seek to achieve here is to have worker consultation established in the first place.

So this brings us to the heart of the matter: does the EU Charter of Fundamental Rights affect the issue? Article 27 of the Charter states that:

'Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.’

Previously, in the judgment in Kucukdeveci, building on its prior judgment in Mangold, the CJEU had stated that employees could invoke the principle of non-discrimination on grounds of age against private employers, and this principle is set out in the Charter (Article 21(1)). Can Article 27 of the Charter also been invoked against private employers?

No it can't. According to the Court, it's 'clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law'. More precisely, 'It is not possible to infer from that Article or the explanations to it' that the rule in the Directive is a 'directly applicable' rule which addresses a prohibition to Member States from excluding categories of employees when implementing the relevant Directive.

The CJEU distinguishes its prior judgment in Kucukdeveci, on the grounds that the principle of non-discrimination on grounds of age laid down in the Charter 'is sufficient in itself to confer on individuals an individual right which they may invoke as such.' Finally, the Court states that the Charter Article and the Directive cannot be combined to require that the national law breaching the Directive has to be set aside, because 'that [Charter] article by itself does not suffice to confer on individuals a right which they may invoke as such', so 'it could not be otherwise if it is considered in conjunction with that directive'.

Comments

The Court's judgment has clarified some key points. The old argument that the Charter can never apply to private parties at all, since Article 51 of the Charter (which sets out its scope) states that it is addressed to EU institutions and other EU bodies, plus the Member States only when they implement EU law - and so implicitly not to private parties - has surely been rejected by the Court here. While the Court does not reject this argument expressly, its judgment obviously assumes that the Charter can apply to private parties in some cases, otherwise why distinguish between Articles 21(1) and 27 of the Charter? The key point is that the underlying challenge here (as in Kucukdeveci) is to a law adopted by a Member State which breaches an EU obligation, so the Charter still applies to the dispute even on a narrow interpretation of Article 51.

The Court has also expressly rejected the argument - which was a reasonable extrapolation of its judgments in Mangold and Kucukdeveci - that somehow the legal effect of a Directive could be 'supercharged' when combined with a relevant provision of the Charter. Rather, the Court makes clear that the Charter Article must be judged separately.

Most importantly, we now have a test for determining whether Charter provisions can apply against private parties - whether the Charter provision requires 'more specific expression' in national or EU law on the one hand, or on the other hand whether the Charter Article is 'sufficient in itself to confer on individuals an individual right which they may invoke as such'.

The Court elaborates upon the first test, but not the second. It seems that Article 27 requires 'more specific expression' because neither that Article nor the explanations concerning it indicate that the key clause in the worker consultation Directive is a directly applicable prohibition against excluding categories of employees from that Directive.

With great respect, the Court's explanation cannot be taken literally. After all, the Charter and the explanations to it make few references to EU legislation, and none of those references indicate that the key rules in the legislation concerned are directly applicable. Most importantly, neither Article 21(1) of the Charter nor the explanations to it make any reference to the framework employment equality Directive (Directive 2000/78); and yet the Court confirms that Article 21(1) can be invoked in litigation brought against private parties.

Perhaps the key point is that Article 27 refers to the 'conditions' of national or EU law. Several other Charter provisions refer to national or EU law, but without using the word 'conditions' (for instance, Articles 28 and 30, concerning trade union rights and unfair dismissal). Some key provisions do not refer to national or EU law at all: for instance, Article 31, on the right to 'fair and just working conditions', including regulation of working time.

Also, there's a dog that didn't bark in this judgment. Article 52(5) of the Charter sets out a distinction between the legal effect of 'rights' on the one hand, and 'principles' on the other. This distinction is the subject of much academic literature, and was extensively discussed in the Advocate-General's opinion, but the Court doesn't mention it. Neither - for obvious reasons - does the Court mention the Protocol limiting the legal effect of the Charter in the UK and Poland. But of course it could arguably be relevant in litigation in those countries which seeks to apply the Charter against employers.

Conclusions

The Court has begun to answer some key questions about the horizontal effect of the Charter. This is an improvement from the most recent judgment on this issue (Case C-282/10 Dominguez), which avoided answering any of them. But the answers in the ASM judgment raise many further questions in turn, which the Court will surely be called upon to resolve in future.

Barnard & Peers: chapter 9, chapter 20