Johanna Westeson - The ICHRP

Netherlands, when they had not previously had temporary residence permits. The plaintiffs
were six women from Bulgaria, Poland, and Slovakia who wished to work as prostitutes; a
fact only known from the opinion of the Advocate General. 882 Thus, the nature of the
activity in which they wanted to engage – sex work – is not discussed by the Court. Rather,
the Court accepts without hesitation that the six women wished to “work […] in a selfemployed
capacity” (para 2 and 9), and “with a view to establishment [in the Netherlands]
as [...] self-employed person[s]” (para 17). This demonstrates that the Court has
incorporated and expanded its ruling from Jany. Partially, this can be explained by the fact
that this issue was not brought up by the referring Dutch court. Even this is interesting,
however: it means that the Dutch court has accepted previous findings of the Court in
terms of how to perceive sex work.
4. Domestic legislation and case law
In the Netherlands, 883 regulations on sex work aim at drawing a sharp line between
involuntary prostitution, on one hand, and voluntary, adult sex work, on the other. 884 Street
prostitution and self-employed prostitution have never been illegal. Brothels were banned,
but since the 1970s prostitution businesses, like the famous shop windows of Amsterdam’s
Red Light District, sex clubs, and other forms of indoor prostitution were tolerated by the
authorities as long as they were not linked to other criminal activities. There was also no
strict control over migrant sex workers, who could operate fairly freely, even when they
lacked documentation. 885 However, sex workers could not enjoy labor rights available to
other Dutch workers.
On 1 October 2000, the Dutch Criminal Code was amended in the sense that the formal
ban on brothels was lifted and the prohibition of pimping was repealed. Thus, the new
legislation made it legal to run a brothel and to solicit clients for a prostitute. Among the
objectives of this legal reform were to control and regulate the employment of prostitutes
through a municipal licensing system; to protect minors from sexual abuse; to protect the
position of the prostitutes; and to reduce prostitution by foreign nationals residing illegally
in the Netherlands. 886 Legally, the term ‘making oneself available to perform sexual acts
with a third party in return for payment’ is used to describe sex work in the Dutch context,
but official sources use the term ‘prostitution’ for short. 887 While formally legalizing
voluntary exchange of sexual services for money, the reform simultaneously sharpened
882 Opinion of General Advocate Poiares Maduro delivered on 19 February 2004, Lili Georgieva Panayotova
and Others v Minister voor Vreemdelingenzaken en Integratie, ECR 2004 I-11055.
883 This chapter draws its information primarily from secondary sources. This is due partly to language
difficulties, as few of the Dutch regulations are available in other languages than Dutch, and partly to the fact
that most provisions in this field are passed on local level. Thus, national legislation is to a large extent
lacking, see further below.
884 As described in Dutch National Rapporteur on Trafficking in Human Beings, first report, May 2002,
available at http://english.bnrm.nl/reports/first/, pp. 11-12, 15-16. The fact that the Netherlands in 2000
established a National Rapporteur on Trafficking in Human Beings also illustrates this strong stance against
involuntary prostitution. The Rapporteur reports regularly to the Dutch Parliament; information at
http://english.bnrm.nl/about/about/. Visited on 10 April, 2010.
885 According to OSI/Penny Saunders, “Eight Working Papers/Case Studies Examining the Intersections of
Sex Work Law, Policy, Rights and Health,” June 2006, p. 14. Available at
http://www.soros.org/initiatives/health/focus/sharp/articles_publications/publications/casestudies_20060601/
casestudies_20061012.pdf, last visited on 10 April 2010.
886 As explained in Dutch Ministry of Foreign Affairs, “Dutch Policy on Prostitution” (2004), available at
http://www.mfa.nl/contents/pages/743/prost.pdf. Last visited on 9 April 2009.
887 National Rapporteur (2002), p. 9.
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