Luxembourg, 28/11/2001 (Agence Europe) - The European Court of Justice has instructed a Dutch court (which referred the case) that Polish and Czech prostitutes who request the right to remain in the Netherlands to carry out their profession may do so if they have the financial means to work under their own responsibility. The Court ruled that prostitution is an economic activity like any other under the Association Agreements between the EU and the countries in question and therefore prostitutes have the right to legally exercise their profession, but only as self-employed prostitutes (since only the self-employed have the right to establish themselves in the EU).
The Court ruled that prostitution is a commercial activity "by which the provider satisfies a request by the beneficiary in return for consideration without producing or transferring material goods".
The ruling has been described by some experts as "courageous" (considering its implications) and as "standard" by others who believe that governments cannot close their eyes to prostitution since it is either tolerated or regulated in virtually all EU Member States.
From now on, any Polish or Czech prostitutes making enough money to live in the EU through their own work and who can prove they are working on a self-employed basis have the right to establish themselves in the EU.
Six prostitutes (two Poles and four Czechs) had applied to Amsterdam police for residence permits to enable them to work as self-employed prostitutes. The Dutch authorities refused on the ground that prostitution is a prohibited activity or at least not a socially accepted form of work.
The prostitutes noted that the Association Agreements between their countries and the EU gave them the right to be established in the EU (from 1 February 1994 for Poles and 1 February 1995 for Czechs). There is no symmetry in the Association Agreements - EU nationals only have the right to establishment in the countries in question after varying transition periods (depending on their profession).
Some of the issues raised in this case were settled in a previous ruling where the Court found that any Polish, Czech or Bulgarian citizen could take their request for establishment in the EU to a court in an EU Member State if they meet the residence criteria of the Member State in question, which may not set criteria impossible for those requesting establishment to meet.
EU Member States may set financial conditions - Poles, Czechs and Bulgarians wanting to establish themselves in the EU must have sufficient financial resources at the outset. All the six prostitutes work as "window prostitutes", pay rent and employ an accountant to draw up their Dutch tax returns. One of them said she earned 35,000 guilders a year, worked in Amsterdam for 10 days a month and returned to the Czech Republic in between.
Summing up, Advocate-General Léger signalled that his research showed that the Dutch authorities were wrong to say that prostitution is banned in EU Member States because in at least 10 Member States individuals who carry out prostitution are not committing any crime. He highlighted the situation in Sweden where it is prostitutes' clients who are subject to legal penalties.
The Advocate-General also rules on the issue of whether the prostitutes were genuinely self-employed, noting that there were actually pimps but that was no reason for completely ruling out the idea that prostitutes can carry out their trade without being automatically subject to another individual.