Germany faces struggle over racism law

The EU’s justice ministers will today (15 February) over lunch discuss what for some will be a rather indigestible proposal, namely a framework decision on combating racism and xenophobia.

The plan is to punish speech, written texts or pictures which incite "violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin". Denying the holocaust and other genocides recognised by international tribunals will also be made punishable, if the offence is likely to "disturb public order".

Banning expressions of racism in itself may not seem such a bad idea but when the mix of cultural values and freedom of speech is considered, it is apparent that the German presidency will have a fight on its hands to win approval for the proposal.

Though much weight has been given to the fact that it is Germany pushing for the law, Berlin is quick to point out that this is the third time the proposal has been put before member states.

The plan previously faltered under sustained opposition from Italy, in particular. Italy’s example may illustrate why this proposal may fall yet again. Silvio Berlusconi, the then Italian prime minister, was against the law because of opposition from his coalition partners, the Northern League, which feared being sanctioned over xenophobic statements. Italy has since done a political about-turn with Romano Prodi’s coalition government recently approving a bill banning Holocaust denial and increasing prison sentences for incitement to hatred. But the episode shows in an extreme way that what might be considered in one EU state - or even by one prime minister in the same state - as the gravest offence may be tolerated by another.

Owning or trading in Mein Kampf is illegal in some EU states while in other states the book is freely available in shops. Similarly Holocaust denial is outlawed in nine EU states (Austria, Belgium, Czech Republic, France, Germany, Lithuania, Poland, Romania and Slovakia) but others prefer to have laws against incitement to hatred which take a more flexible approach to freedom of expression.

Hugo Brady, a research fellow with the Centre for European Reform, says: "This is a massive cultural issue and is about legal issues and countries’ legal systems. A state’s legal system is an expression of what that country is in terms of history and culture." The German presidency of the EU says its reasons for pushing for the proposal are to introduce a common EU standard on this issue and to send out a "political signal that Europe is taking the topic seriously".

Germany believes it can overcome cultural issues and freedom of expression concerns by allowing member states to set their own thresholds as to what is and is not punishable. National courts will ultimately decide what is covered by the proposal.

Indeed many states support the basis of the proposal saying it is close to what they already have on their statute books. The UK, for example does not expect to have to change its law, should the proposal win EU approval.

But five states - Sweden, the UK, Ireland, Denmark and Finland - feel their cultural values will not sufficiently be respected by the inclusion of one particular part of the proposal. A "mutual legal assistance" clause means that while Mein Kampf will not have to be banned in Sweden, for example, its police would have to help another member state investigate and prosecute a Swedish national over the dissemination of the book in Austria, where it is outlawed. Sweden would also have to surrender a national if an arrest warrant was sought by another EU state in such a case. The political controversy this would cause is unacceptable for some.

Some states also feel that the denial of genocides is a difficult issue to define. "It is quite hard to agree on how many fields the framework decision should cover. There were terrible things committed under Stalinism; should they be covered, as Holocaust denial will be?" asked one official.

While Germany has wanted to see this proposal agreed on by April, a later date is now looking more likely. And even then some wonder what kind of proposal will be left. "What’s likely to be finally agreed will be as watered down and as meaningless as possible," says Brady.

The EU’s justice ministers will today (15 February) over lunch discuss what for some will be a rather indigestible proposal, namely a framework decision on combating racism and xenophobia.