Proposal for a Council Framework Decision on combating racism and xenophobia
Date: 2001-11-28
Institutions: European Commission
Subjects: European social policy, approximation of laws, cooperation in home affairs, decision (EU), racism, xenophobia

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Official Journal of the European Communities

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Proposal for a Council Framework Decision on combating racism and xenophobia

(2002/C 75 E/17)

COM(2001) 664 final (cid:151) 2001/0270(CNS)

(Submitted by the Commission on 29 November 2001)

THE COUNCIL OF THE EUROPEAN UNION,

comprehensive and clear legislation to combat racism and
xenophobia effectively.

Having regard to the Treaty on European Union, and in
particular Articles 29, 31 and 34(2)(b) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Racism and xenophobia are direct violations of the prin-
ciples of liberty, democracy, respect for human rights and
fundamental
law, principles
upon which the European Union is founded and which
are common to the Member States.

freedoms and the rule of

(2) The Action Plan of the Council and the Commission on
how to best implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice (1),
the Conclusions of the Tampere European Council of 15
and 16 October 1999 (2), the European Parliament in its
the
resolution
September
Commission’s Communication to the Council and the
the
European Parliament on the biannual update of
Scoreboard (4) to review progress on the creation of an
area of (cid:145)freedom, security and justice(cid:146)
in the European
Union (second half of 2000) call for action in this field.

2000 (3)

and

20

of

(3) Joint Action 96/443/JHA of 15 July 1996 adopted by the
Council on the basis of Article K.3 of
the Treaty on
European Union, concerning action to combat racism
and xenophobia (5) needs to be followed by further legis-
lative action addressing the need for further approxi-
mation of law and regulations of Member States and for
judicial cooperation
overcoming obstacles for efficient
which are mainly based on the divergence of
legal
approaches in the Member States.

(4) According to the evaluation of the 1996 Joint Action and
work carried out in other international fora, such as the
some difficulties have still been
Council of Europe,
experienced regarding judicial cooperation and therefore
there is a need for further improvement of Member States’
criminal laws in order to ensure the implementation of a

(1) OJ C 19, 23.1.1999, p. 1.
(2) http://ue.eu.int/en/Info/eurocouncil/index.htm
(3) OJ C 146, 17.5.2001, p. 110.
(4) COM(2000) 782 final.
(5) OJ L 185, 24.7.1996, p. 5.

(5) It is necessary to define a common criminal law approach
in the European Union to this 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 and
sanctions are provided for natural and legal persons
having committed or being liable for such offences.

as

(6) Racist or xenophobic motivation should be taken into
account
factor when imposing
penalties for ordinary offences. This would constitute a
direct
response to perpetrators of such offences and
have a deterrent effect.

an aggravating

(7) An offence concerning racism and xenophobia committed
should be
it
since

in the exercise of a professional activity,
considered as
entails an abuse and is particularly reprehensible.

an aggravating circumstance

(8) It should be ensured that investigations and prosecutions
of offences involving racism and xenophobia are not
dependent on reports or accusation made by victims,
who are often particularly vulnerable and reluctant
to
initiate legal proceedings.

(9) Judicial

cooperation in criminal matters

should be
promoted to combat more effectively racist and xeno-
phobic offences by establishing clear rules on jurisdiction
and extradition.

(10) Operational contact points should be established for the
exchange of information or adequate use should be made
of existing cooperation mechanism.

(11) All Member States have ratified the Council of Europe
Convention of 28 January 1981 for the protection of
individuals with regards
to automatic processing of
personal data. The personal data processed in the
context of
Framework
implementation of
Decision will be protected in accordance with the prin-
ciples of the said Convention.

this

the

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cannot be

and dissuasive

criminal penalties

(12) Since the objectives of ensuring that racism and xeno-
phobia be sanctioned in all Member States by effective,
proportionate
and
cooperation by
improving and encouraging judicial
sufficiently
removing potential obstacles,
achieved by the Member States individually, as rules
have to be common and compatible, and can therefore
better achieved at the level of the Union, the Union may
adopt measures, in accordance with the principle of subsi-
diarity as referred to in Article 2 of the EU Treaty and as
set out in Article 5 of the EC Treaty. In accordance with
the principle of proportionality, as set out in the latter
Article,
this Framework Decision does not go beyond
what is necessary in order to achieve those objectives.

(13) This Framework Decision is without prejudice to the

powers of the European Community.

(14) Joint Action 96/443/JHA should be repealed since with
the adoption of
the Treaty of Amsterdam, of Council
Directive 2000/43/EC of 29 June 2000 implementing
the principle of equal treatment between persons irres-
this
pective of
Framework Decision, it has become obsolete.

ethnic origin (1)

racial or

and of

(15) This Framework Decision respects the fundamental rights
and observes the principles recognised in particular by the
European Convention on Human Rights,
in particular
Articles 10 and 11 thereof, and by the Charter of Funda-
the European Union, and notably
mental Rights of
Chapters II and VI thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Subject matter

This Framework Decision lays down provisions for approxi-
mation of laws and regulations of the Member States and for
closer co-operation between judicial and other authorities of
the Member States regarding offences involving racism and
xenophobia.

Article 2

Scope

This Framework Decision applies to offences involving racism
and xenophobia committed:

(a) within the territory of the Member States, or

(c)

for the benefit of a legal person established in a Member
State.

Article 3

Definitions

For the purposes of this Framework Decision, the following
definitions shall apply:

(a)

in race,
(cid:145)racism and xenophobia(cid:146) shall mean the belief
religion or belief, national or ethnic
colour, descent,
origin as a factor determining aversion to individuals or
groups;

(b) (cid:145)racist or xenophobic group(cid:146) shall mean as a structured
organisation established over a period of time, of more
than two persons, acting in concert to commit offences
referred to in Article 4, paragraphs (a) to (e).

(c)

the applicable law, except

(cid:145)legal person(cid:146) shall mean any entity having such status
under
for States or other
public bodies in the exercise of State authority and for
public international organisations.

Article 4

Offences concerning racism and xenophobia

Member States shall ensure that
the following intentional
conduct committed by any means is punishable as criminal
offence:

(a) public incitement to violence or hatred for a racist or xeno-
phobic purpose or to any other racist or xenophobic
behaviour which may cause substantial damage to indi-
viduals or groups concerned;

(b) public insults or threats towards individuals or groups for a

racist or xenophobic purpose;

(c) public condoning for a racist or xenophobic purpose of
crimes of genocide, crimes against humanity and war
crimes as defined in Articles 6, 7 and 8 of the Statute of
the International Criminal Court;

(d) public denial or trivialisation of

the crimes defined in
Article 6 of
the International Military
Tribunal appended to the London Agreement of 8 April
1945 in a manner liable to disturb the public peace;

the Charter of

(b) by nationals of a Member State where the act affects indi-

viduals or groups of that State, or

(1) OJ L 180, 19.7.2000, p. 22.

(e) public dissemination or distribution of tracts, pictures or
other material containing expressions of racism and xeno-
phobia;

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(f) directing, supporting of or participating in the activities of
a racist or xenophobic group, with the intention of
contributing to the organisation’s criminal activities.

Article 8

Racist and xenophobic motivation

Article 5

Instigation, aiding, abetting and attempt

Member States shall ensure that racist and xenophobic moti-
vation may be regarded as aggravating circumstances in the
determination of
the penalty for offences other than those
referred to in Articles 4 and 5.

Member States shall ensure that instigating, aiding, abetting or
attempting to commit an offence referred to in Article 4 is
punishable.

Article 9

Liability of legal persons

Article 6

Penalties and sanctions

1. Member State shall ensure that the offences referred to in
Articles 4 and 5 are punishable by effective, proportionate and
dissuasive penalties.

2.
Each Member State shall take the necessary measures to
ensure that the offences referred to in Article 4(b) to (e) are
in serious cases, by custodial sentences
punishable at
which can give rise to extradition or surrender.

least

Each Member State shall take the necessary measures to
3.
ensure that the offences referred to in Article 4(a) and (f) are
punishable by terms of deprivation of liberty with a maximum
penalty that is not less than 2 years.

4. Member States shall ensure that ancillary or alternative
sanctions
such as community service or participation in
training courses, deprivation of certain civil or political rights
or publication of all or part of a sentence may be imposed or
foreseen for the offences referred to in Articles 4 and 5.

5. Member States shall ensure that fines can be imposed or
payment for charitable purposes accepted in respect of the
offences referred to in Articles 4 and 5.

6. Member States shall ensure seizure and confiscation of
any material or
and proceeds
obtained from offences referred to in Articles 4 and 5.

to commit

instruments

1. Member States shall ensure that legal persons can be held
liable for the forms of conduct referred to in Articles 4 and 5,
committed for their benefit by any person, acting either indi-
vidually or as part of an organ of the legal person, who has a
leading position within the legal person, based on:

(a) a power of representation of the legal person, or

(b) an authority to take decisions on behalf of the legal person,

or

(c) an authority to exercise control within the legal person.

Apart

from the cases provided for

2.
in paragraph 1,
Member States shall ensure that a legal person can be held
liable where the lack of supervision or control by a person
referred to in paragraph 1 has made possible the commission
of the offences referred to in Articles 4 and 5 for the benefit of
that legal person by a person under its authority.

3.
Liability of a legal person under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who
commit offences or engage in the conduct referred to in
Articles 4 and 5.

Article 10

Sanctions for legal persons

to Article

1. Member States shall ensure that a legal person held liable
effective,
pursuant
is
9(1)
proportionate and dissuasive sanctions, which shall
include
criminal or non-criminal
and may include other
sanctions, such as:

punishable

fines

by

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice

of commercial activities;

Article 7

(c) placing under judicial supervision;

Aggravating circumstance for racist offences

Member States shall ensure that in cases where the perpetrator
of the offences referred to in Articles 4 and 5 is acting in the
exercise of a professional activity and the victim is depending
on this activity, the sentence can be aggravated.

(d) a judicial winding-up order;

(e)

temporary or permanent closure of establishments which
have been used for committing the offence.

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2. Member States shall ensure that a legal person held liable
pursuant
effective,
by
is
9(2)
proportionate and dissuasive sanctions or measures.

to Article

punishable

Article 11

Initiation of prosecutions

Each Member State shall ensure that
investigations into or
prosecution of offences referred to in Articles 4 and 5 shall
not be dependent on the report or accusation made by a victim
of the offence, at least in cases where offences referred to in
Article 4, paragraphs (a), (e) and (f) have been committed in its
territory.

Article 12

Jurisdiction

1.
Each Member State shall establish its jurisdiction with
regard to the offences referred to in Articles 4 and 5 where
the offence has been committed:

(a)

in whole or in part within its territory; or

(b) by one of its nationals and the act affects individuals or

groups of that State; or

(c)

for the benefit of a legal person that has its head office in
the territory of that Member State.

2. When establishing
jurisdiction in accordance with
paragraph 1(a), each Member State shall ensure that its juris-
diction extends to cases where the offence is committed
through an information system and:

(a) the offender commits the offence when physically present
in its territory, whether or not the offence involves racist
material hosted on an information system in its territory;

(b) the offence

involves

racist material hosted on an
information system in its territory, whether or not
the
offender commits the offence when physically present in
its territory.

3.
A Member State may decide not to apply, or to apply
only in specific cases or circumstances, the jurisdiction rule set
out in paragraphs 1(b) and (c).

Article 13

Extradition and prosecution

1.
A Member State which, under its law, does not extradite
the
its own nationals
offences referred to in Articles 4 and 5 when committed by
its own nationals on the territory of another Member State.

shall establish its

jurisdiction over

Each Member State shall, when one of its nationals is
2.
alleged to have committed,
in another Member State, an
offence referred to in Articles 4 and 5, and it does not
extradite that person to that other Member State solely on
the ground of his nationality,
to its
competent authorities for the purpose of prosecution if appro-
priate.

submit

case

the

information and exhibits

In order to enable prosecution to take place, the Member State
in which the offence was committed shall
forward to the
competent authorities of the other State all the relevant the
relating to the offence in
files,
accordance with the procedures laid down in Article 6(2) of
the European Convention on Extradition of 13 December 1957.
The requesting Member State shall be informed of the initiation
and outcome of any prosecution.

3.
For the purpose of this Article, a (cid:145)national(cid:146) of a Member
State shall be constructed in accordance with any declaration
made by that State under Article 6(1)(b) and (c) of
the
European Convention on Extradition.

Article 14

Political offences

Member States shall ensure that the offences referred to in
Articles 4 and 5 are not regarded as political offences justifying
refusal to comply with requests for mutual legal assistance or
extradition.

Article 15

Exchange of information

1. Member States shall designate operational contact points
or may use existing operational structures for the exchange of
information and for other contacts between Member States for
the purposes of applying this Framework Decision.

4. Member States shall inform the General Secretariat of the
Council and the Commission accordingly where they decide to
apply paragraph 3, where appropriate with an indication of the
specific cases or circumstances in which the decision applies.

2.
Each Member State shall inform the General Secretariat of
the Council and the Commission of its operational contact
points or operational structure for the purposes of paragraph
1. The General Secretariat shall notify that information to the
other Member States.

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3. Where a Member State has information relating to the
storage in its territory of material containing expressions of
racism and xenophobia for the purposes of distribution or
dissemination in another Member State it shall provide that
information to the other Member State to enable the latter to
initiate,
legal proceedings or
proceedings for confiscation. For that purpose, the operational
contact points referred to in paragraph 1 may be used.

in accordance with its

law,

On that basis, the Commission shall, by 30 June 2005,
3.
submit a report to the European Parliament and to the Council
on the operation of this Framework Decision, accompanied
where necessary by legislative proposals.

The Council shall assess the extent to which Member

4.
States have complied with this Framework Decision.

Article 16

Implementation

Article 17

Repeal of Joint Action 96/443/JHA

The Joint Action 96/443/JHA is hereby repealed.

1. Member States shall
comply with this Framework Decision by 30 June 2004.

take the necessary measures to

2.
They shall communicate to the General Secretariat of the
Council and to the Commission the text of any provisions they
adopt and information on any other measures they take to
comply with this Framework Decision.

Article 18

Entry into force

This Framework Decision shall enter into force on the third day
following that of its publication in the Official Journal of the
European Communities.