EU justice ministers have agreed that holocaust denial should be a criminal offence throughout all 27 Member States, punishable with a sentence of between 1 and 3 years, with some caveats (summary here). It’s worth underlining that this will almost certainly have been agreed under Pillar III – Police & Judicial Cooperation in Criminal Matters – where unanimity is required and legislative initiatives do not necessarily come from the European Commission.
Now, let me state this categorically: I think anyone denying the holocaust is mad and disgusting. But on the other hand, I can quite understand the additional historical importance attached to, and fear of, holocaust denial in Germany and Austria in comparison to, say, the UK or Portugal. On the other hand, how to deal with atrocities committed by Stalin varies. Yes, what was done was gruesome, and it’s mad to deny it. But this touches today’s politics in the Baltic countries, Poland etc. more than it touches Malta.
What is the problem therefore of having mutual recognition of these matters? Each country’s own law would apply, and other countries would respect that? After all, being a democracy and respecting the rule of law is a condition for entering the European Union in the first place.
So why are we going down this road? I suspect – above all – it is because the German Presidency of the EU wants to show that it is proactive, and is working for something that is important to Germany, Germany after all being one of the European countries that is strongest when it comes to holocaust denial. As this is a Pillar III issue, the Commission does not have the sole right to initiate legislation, so this cannot be portrayed as an effort by the EU institutions to pinch power from Member States.
In short, is this legislation going to do much to prevent holocaust denial? I doubt it. Will it help prevent the rise of ne-nazism? Again, highly doubtful. It makes the EU look vaguely ethical, and starts to unearth all kinds of differences to national approaches on this issue, and I’m not sure that’s very valuable either.