If the EU Parliament will have its way, banners by football fans stating that there are only two genders will no longer only lead to Football Associations imposing fines on the respective clubs. Those responsible could then be prosecuted as serious criminals according to EU regulations. This is because such a banner is interpreted as hate speech against trans people and people who do not feel they belong to either of the two biological genders.
The EU Parliament cannot introduce draft legislation in this matter. It therefore called on the EU Council to take action in a resolution adopted on 18 January. The press release states:
MEPs call on the Council to finally make progress on legislation to ensure an adequate level of protection from hate for everyone in Europe. The Council should adopt a decision to include hate speech and hate crime among criminal offences within the meaning of Article 83(1) TFEU (so-called “EU crimes”) by the end of the current legislative term, Parliament says in the report adopted on Thursday with 397 votes in favour, 121 against, and 26 abstentions. These are crimes of a particularly serious nature with a cross-border dimension, for which Parliament and Council can establish minimum rules to define criminal offences and sanctions.”
If you look at the mentioned Article 83(1) of the Treaty on the Functioning of the EU (commonly known as the EU Treaty), you can only marvel at the boldness of our supposed representatives to subsume hate-speech under this Article. It says:
“The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.””
It lists “particularly serious crime” on the order of terrorism and human trafficking. New areas of crime to be included to the list must be particularly serious crimes.
The Parliament itself points out that “there is currently no comprehensive common legal definition of hate speech and hate crime”. These are legally unsuitable, extremely elastic terms. In practice, it often includes criticism of political decisions in which certain groups classified as worthy of protection have a particular interest and could thus feel offended. This is certainly not a serious offence. Or it is a case of criminal, insulting attacks on individuals or certain groups. Here too, it is very questionable whether this should be categorised as a serious crime on the same level as terrorism and human trafficking.
It is even more questionable where the strong cross-border effects and the need to fight them together are supposed to come from. The EU treaty refers to cross-border trafficking of arms and humans and to money laundering rings and terrorist networks, not to people who publicly express an opinion that differs from the state line on political measures to protect minorities.
The EU Commission, In its own initiative on the criminalisation of “hate speech and hate crime”, which has been shelved since 2020, points out (in section 3.1) that, according to its 2015 recommendation, hate speech should be defined as:
“advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatisation or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of race colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status’ “.
It is easy to see the breadth of the issues covered: “any harassment”, “negative stereotyping” based on e.g. national origin, age or conviction, and even the justification of corresponding statements by others are included in the definition of hate speech and, according to the will of the parliamentary majority, are to be elevated to the status of a particularly serious crime. The potentially very broadly interpreted concept of “promoting” all such offences forebodes ill if hate speech is to become a serious crime.
Such convictions will most likely only be handed down in the most extreme cases. Punishment is not the main purpose of the intended extension. Much better than for criminal prosecution, this classification is suitable for censorship outsourced to private platforms outside of the legal process. With every vaguely defined criminal offence, this form of censorship can be expanded and placed on (seemingly) more solid legal ground. It is a sophisticated strategy that suggests that the members of the EU institutions who come up with such things are not stupid, but perfidious.
The effect would be clear. Any public discussion about gender policy, for example, could be prevented by means of criminal law and censorship.
Conclusion
It is a shocking indictment that only 121 MEPs opposed this anti-democratic resolution and only 26 abstained. Parliament is thus demonstrating the extent of its detachment and fuelling the already widespread resentment against an EU that believes it must interfere in every area of life, in stubborn disregard of the Union’s fundamental principle of subsidiarity. According to this principle, only what cannot be regulated just as well or better at a lower level, closer to the citizens, should be regulated at EU level.
Such excesses by MPs are helpful in laying the foundations for far-reaching reform and disempowerment of an overbearing Brussels juggernaut that is far removed from democracy. The increasingly open censorship of critical and dissenting opinions is a strong indication of the establishment’s desperation and helplessness in the stiff headwind of public opinion. However, one should not expect this turnaround to happen quickly. These are long-term erosion processes. But they will culminate at some point.
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