by Lídia Balogh
The judgement of the European Court of Human Rights (the Court) in the case of M.A. and Others v. France[i] became final in December 2024, when the Court’s Grand Chamber Panel rejected the applicants’ request for referral. The crux of the unanimous decision is that the Court ruled the French law, criminalising the purchase of ‘sexual acts’ and enacted in 2016, does not violate Article 8 of the European Convention on Human Rights (the Convention), which provides the ‘right to respect for private and family life’. The applicants had challenged the law, bringing the matter before the Court.
First, the direct context of the law in question deserves attention. In April 2016, the French parliament passed a comprehensive legislative package aimed at ‘Strengthening the Fight Against the Prostitution System and Supporting Prostituted Persons’ (in French: ‘visant à renforcer la lutte contre le système prostitutionnel et à accompagner les personnes prostituées’). At this point, a reflection is needed regarding the term ‘prostitution’, which has been used for a long time – prominently, by the UN’s 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others – and is still widely used in international legal language, making it a relatively neutral term.[ii] Throughout the article this term will be used as a default option, even though many avoid using it on principle or for stylistic reasons.
One of the most discussed elements of the French legislative package was the introduction of a ‘client penalisation’ rule into the criminal code. Of comparable significance was the change that removed soliciting as a criminal offence, meaning that the criminal liability of those offering sexual acts for sale was abolished simultaneously. Furthermore, legislative amendments have come into force aimed at supporting the social integration and protection of individuals exiting prostitution, including non-French nationals, even those with irregular residency status. The measures of the 2016 legislative package also extended to prevention – i.e. preventing entry into prostitution – through awareness-raising, education, and professional training.
The elements listed above, along with the strict criminal prosecution of behaviours exploiting others’ prostitution, such as pimping and human trafficking for the purpose of sexual exploitation, form the essence of the ‘abolitionist model’ towards prostitution. The latter sets the abolition of prostitution as its long-term goal, using legal and public policy tools with a particular focus on reducing demand. Based on this approach, Sweden became the first country to adopt a law in 1999 that criminalises clients of prostitution, followed by similar regulations in other Nordic countries, such as Norway and Iceland (since 2009), and Canada (since 2014), before the French law in question was adopted in 2016.
Subsequently, Ireland (since 2017) and Israel (since 2020) also joined this trend. Alongside these developments, the supporters of the abolitionist stance increasingly use the term ‘equality model’ instead of ‘Swedish model’ or ‘Nordic model,’ referring to its philosophical foundation that prostitution is incompatible with the idea of social equality between women and men. This is because, in their view, prostitution not only subordinates the directly affected women but also influences the dynamics of relationships between men and women across society. In the Court’s proceedings, the governments of Sweden and Norway, along with several French civil society organisations (including Osez le féminisme, Amicale du Nid, Mouvement du Nid, and Fédération nationale des centres d’informations sur les droits des femmes et des familles), as well as the international umbrella organisation CAP (Coalition for the Abolition of Prostitution), acted as ‘third-party interveners’, supporting France and the abolitionist position.
The applicants’ side argued in favour of what is commonly known as the ‘sex work’ approach in the context of legal and policy frameworks. This approach rejects criminalisation in relation to all participants in prostitution and, invoking a particular conception of human dignity, advocates for the recognition of prostitution as a form of work. It should be noted that proponents of the abolitionist stance deliberately avoid using terms like ‘sex work’ or ‘sex worker’, as they consider prostitution to be incompatible with the conception of human dignity they advocate.[iii]
The applicants remain anonymous, but it is known that they form a heterogeneous group of 261 individuals – both men and women – of various nationalities besides French, including Albanian, Algerian, Argentine, Belgian, Brazilian, British, Bulgarian, Cameroonian, Canadian, Chinese, Colombian, Dominican, Ecuadorian, Equatorial Guinean, Nigerian, Peruvian, Spanish, Romanian, and Venezuelan. The applicants have one thing in common: they ‘habitually engage in prostitution lawfully under the provisions of French law’,[iv] and their main claim is that the law criminalising clients of prostitution ‘seriously endangers the physical and mental integrity and health of individuals who, like them, engage in prostitution, and that it radically infringes upon their right to respect for private life, as well as that of their clients, insofar as it includes the right to personal autonomy and sexual freedom’.[v]
During the proceedings, third-party interveners supporting the applicants’ stance were also heard. These included French civil society organisations, such as Médecins du Monde), Sekswerk Expertise and other NGOs from the Netherlands (where prostitution operates within a legalised framework), the Sex Work Research Hub from the UK, the Irish Sex Work Research Network, the global human rights organisation Amnesty International, and the UN Special Rapporteur on the Right to Health, Tlaleng Mofokeng. Upon receiving news of the Court’s ruling, Mofokeng expressed concern in a press release. However, the issue of prostitution is not viewed unanimously within the UN either. This is demonstrated by the fact that another UN Special Rapporteur, Reem Alsalem, who focuses on violence against women,[vi] welcomed the Court’s decision in a press release, calling it a milestone in recognising the compatibility of the abolitionist model with the Convention.
At this point, it is important to examine the core question: what exactly the Court states in its judgment in the case of M.A. and Others v. France. It is undisputed that the French (abolitionist) regulation on prostitution was considered a solution which is compatible with the framework of the Convention. However, it is by no means the case that the ‘sex work’ model, which is diametrically opposed in terms of philosophy and conceptualisation, has been considered incompatible. The case repeatedly brings up the claim that there is no consensus at the international or even at European level on this matter, as has been evident in previous cases such as S.M. v. Croatia and V.T. v. France.
The Court makes clear that it does not wish to ‘engage in the debate’[vii] on whether some individuals freely and voluntarily choose prostitution or whether there is always some form of coercion, at least stemming from socio-economic conditions. The Court asserted that the respondent state should be granted a ‘wide margin of appreciation in this area’, however, not an unlimited one, and that ‘it is the Court’s responsibility to examine the arguments considered by the legislator in reaching the solution it adopted, and to determine whether a fair balance has been struck between the interests of the state and those of the individuals directly affected by the solutions in question’.[viii]
After considering these factors, the Court concludes that ‘the French authorities have struck an appropriate balance between the competing interests at stake and the respondent state has not exceeded its margin of appreciation’.[ix] Consequently, no violation of Article 8 of the Convention can be established. In the concluding part of the judgment, the Court once again expresses that it does not wish to take a stance on the normative correctness or social usefulness of the abolitionist approach. In the final paragraph, the Court issues the following warning: ‘it is up to the national authorities to constantly review the approach they have adopted, particularly when it is based on a general and absolute ban on the purchase of sexual acts, in order to adjust it in accordance with the evolution of European societies and international standards in this field, as well as the consequences produced, in a given situation, by the application of this legislation’.[x]
In light of the Court’s reasoning, it is worth revisiting how the applicants in favour of legalisation sought to challenge the abolitionist regulation – and perhaps questioning whether, within such a framework, they could have even found a legitimate basis for doing so. In the section following the introduction, the judgment provides excerpts from the testimonies of nine applicants. Some of these are emotionally charged (especially the following: ‘Tomorrow I could die, and no one would mind it. On the contrary: there would be one less whore, and they could claim it as a success in their moral crusade against evil’[xi]). These statements could have been considered ‘strong assertions’, were it not for the fact that the Court did not question the objective of the French regulation – namely, the abolition of prostitution by reducing demand.
Notably, the applicants primarily lament that, as a result of the 2016 legislation, the number of their clients has decreased, which has consequently reduced both their income and their opportunities to choose clients. They also argue that they are now exposed to greater stress and are more isolated, as their clients are now threatened with punishment. However, the credibility of the testimonies and especially the latter part of the applicants’ arguments was contested by the French abolitionist organisations acting as third-party interveners. They argued that ‘the applicants wrongly attribute to the 2016 law effects that existed long before its enactment’, because ‘precariousness, insecurity, and health deterioration have always been inherent factors of the phenomenon of prostitution’ and it was the previous criminalisation of soliciting (which was abolished by the 2016 legislative package, alongside the introduction of penalties for clients) that pushed ‘prostituted persons into clandestinity and isolation’.[xii] Notably, third-party interveners on the side of the applicants pointed to the 2016 law as the source of the plight of those trying to sell sexual acts in France, while the Court took the cautious position of claiming that ‘there is no consensus on whether the negative effects described by the applicants are directly caused by the measure that criminalises the purchase of sexual acts, or their sale, whether they are inherent and intrinsic to the phenomenon of prostitution itself, or whether they result of a whole range of social factors and behavioural practices’.[xiii]
Finally, returning to the question of the significance of the Court’s judgment in the debate surrounding legal models of prostitution, we can interpret it as having perpetuated the debate by highlighting the lack of consensus without taking a substantive stance. However, the judgment implicitly conveys the position that the abolitionist model can be considered one of the acceptable, legitimate approaches due to its comprehensive, consistent nature and internal coherence.
Lídia Balogh is a Research Fellow at the Institute for Legal Studies, HUN-REN Centre for Social Sciences (Budapest). Her research focuses on equality between women and men, minority protection, and minority rights.
[i] Affairs M.A. et autres c. France (Requêtes nos 63664/19 et 4 autres), Strasbourg, 25 juillet 2024. The full decision is only available in French, with only a summary provided in English; all quotations from the decision in this article are the author’s translations.
[ii] However, in today’s world, this topic is virtually impossible to discuss in a completely neutral manner, even at the level of phrasing: the choice of terminology inherently serves as a position statement.
[iii] This is why the term ’sex work’ is placed in quotation marks in this blog post: as noted above, it is impossible to approach this topic in a completely neutral manner.
[iv] M.A. and Others v. France, para. 5.
[v] Ibid. para. 1.
[vi] Special Rapporteur Reem Alsalem’s positive assessment of the French law’s approach is referenced in the judgment, paras. 50–54.
[vii]M.A. and Others v. France, para. 156.
[viii] Ibid. para. 153.
[ix] Ibid. para. 166.
[x] Ibid. para. 167.
[xi] Ibid. T.S., 10 novembre 2021 (requête no 24387/20).
[xii] Ibid. para. 113.
[xiii] Ibid. para. 155.
Photo by Jeanne Menjoulet on Flickr.