Report From The Commission To The European Parliament And The Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law

All forms and manifestations of racism and xenophobia are incompatible with the values upon which the EU is founded. The Lisbon Treaty provides that the Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia.

Council Framework Decision 2008/913/ JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law (hereinafter ‘the Framework Decision’) was adopted unanimously on 28 November 2008, after seven years of negotiations. The complicated nature of these negotiations was mainly due to the disparity of the Member States’ legal systems and traditions as regards protection of the right to freedom of expression and its limits, and yet there was enough common ground to define a Union-wide criminal-law approach to the phenomenon of racism and xenophobia in order to ensure that the same behaviour constitutes an offence in all Member States and that effective, proportionate and dissuasive penalties are provided for natural and legal persons having committed or being liable for such offences.

The fight against racism and xenophobia must be framed within a fundamental rights context: the Framework Decision is based on the need to protect the rights of individuals, groups and society at large by penalising particularly serious forms of racism and xenophobia while respecting the fundamental rights of freedom of expression and association. It thereby embodies ‘the vital importance of combating racial discrimination in all its forms and manifestations’, as underlined by the European Court of Human Rights, which has upheld that it may be necessary in ‘democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance’. The Framework Decision must be applied in conformity with fundamental rights, in particular freedom of expression and association, as enshrined in the Charter of Fundamental Rights.

In accordance with Article 10(1) of Protocol No 36 to the Treaties, prior to the end of the transitional period expiring on 1 December 2014, the Commission does not have the powers to launch infringement proceedings under Article 258 TFEU with regard to Framework Decisions adopted prior to the entry into force of the Treaty of Lisbon.

The Framework Decision now requires the Commission to draw up a written report assessing the extent to which Member States have implemented all provisions of this legislation. This report is based on the transposition measures notified by Member States (see Annex) and technical information requested from them by the Commission during its analysis (including national case law, preparatory work, guidelines, etc.), as well as on information gathered from five governmental expert group meetings and a study contracted by the Commission. Member States were obliged to transmit the text of the provisions transposing into their national law the obligations imposed on them under the Framework Decision by 28 November 2010. All Member States have notified the national measures taken to comply with the Framework Decision.

EUR-Lex: COM(2014)27: Follow the progress of this document through the decision-making procedure http://eur-lex.europa.eu/legal-content/EN/HIS/?uri=COM:2014:027:FIN

European Commission: SWD(2014)27: Commission Staff Working Document http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2014:0027:FIN:EN:PDF

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