The EU and Outlawing of Holocaust Denial

The German agenda for its January-June 2007 presidency of the Council of the European Union, includes according to this Guardian article and this BBC article, a proposal to outlaw Holocaust denial in all EU countries.

The proposal, which seems to be the brainchild of Germany's Justice minister Brigitte Zypries, is in my opinion bizarre. Not only is the outlawing of holocaust denial an affront to freedom of speech and contravy to the constitutions of several EU countries, but it is also likely fuel anti-EU sentiment in Northern European countries where freedom of speech is particularly treasured.

However, the main question for me is on what legal basis does Germany propose to introduce such a ban? The EU does not generally have any competence in the area of criminal law, although the third pillar of the EU treaty does concern cooperation within the area of Justice and Home Affairs.

The answer to my question could be Article 29 of the Treay on the European Union, which states that one of the EU's objectives is to combat racism and xenophobia through "approximation... of rules on criminal matters." However Article 29 stipulates that this can happen only "when necessary" and is subject to Article 31(e), which limits approximation to "establishing minimum rules relating to constituent elements criminal acts." Finally, any measure adopted by the Council within this area of EU law must, according to Article 34, be adopted unanimously and cannot have direct effect.

This all leaves me somewhat confused and doubtful as to whether the proposal will be implemented. To summarise: First, the EU has a very limited competence within the area of criminal law and then only seek harmonisation of minimum rules when necessary. Secondly, when the Council acts on matters of justice it can only do so unanimously. Thirdly, such a measure would be unconstitutional in several countries. Finally, the proposal will be seen by many as an unacceptable EU interference in national states sovereignty.