A resolution was adopted by the European Parliament (EP) in February 2014 that defined prostitution and forced prostitution as a matter of gender equality and recommended that all Member States took action to fight it, especially with the endorsement of the “Nordic model” implemented in Sweden, Iceland, Norway and, since 2016, in France. However, across the European Union (EU), there are still several types of legislations in place and this heterogeneity makes it harder to combat sexual exploitation. Indeed, it is actually giving sex traffickers blurred borders to work with. A contradiction therefore arises between the values promoted by the EU and its legislative action to tackle the issues it is denouncing. By not implementing a legally compelling legislation, the EU seems to be going against its values.

1 – The theory: the ability of the EU to legislate on prostitution

1.1 – Prostitution as a matter of gender equality

“Whereas prostitution and forced prostitution are gendered phenomena with a global dimension involving around 40-42 million people worldwide, with the vast majority of prostituted persons being women and under-age females, and almost all buyers being men, and whereas it is therefore both a cause and a consequence of gender inequality which it aggravates further”

European Parliament, Sexual exploitation and prostitution and its impact on gender equality

Generally speaking, prostitution can be considered in two ways: either as a profession or as an exploitation^[1]. The category that one will put prostitution in will impact its treatment. This dichotomy is problematic internationally, including within the EU, since its Member States are divided on this question. They therefore have adopted different legislations, hence a lack of coherence in the EU when tackling this issue. More specifically, the EU did not appear to be tackling this issue as one, but rather leave it up to its Member States. This however changed in 2014 with the passing of an EP resolution on sexual exploitation and prostitution and its impact on gender equality (2013/2013(INI)).

This 2014 EP resolution was meant to build more homogeneity across the EU on the issue of forced prostitution as well as prostitution, the former having been tackled by the EU for a larger amount of time already. The resolution was based on a report led by the now ex-Member of the European Parliament (MEP) Mary Honeyball. With this resolution, the EU positioned itself on its understanding of prostitution and the status of prostitutes.

On this issue, Hannah Manzur, a former parliamentary assistant to Mary Honeyball, stated that the report -and the resolution that derived from it- considered prostitution to be a violence against women and should therefore be legislated as a crime of violence. In this perspective, prostitutes are victims of sexual exploitation and not sex workers. Indeed, the resolution states that “prostitution and forced prostitution are […] both a cause and a consequence of gender inequality which it aggravates further”^[2]. It goes even further than that by highlighting the fact that “prostitution and forced prostitution are forms of slavery incompatible with human dignity and fundamental rights”^[3].

Defining prostitution as a violence against women is, to say the least, not consensual, even in the EU. Generally speaking, the Member States where prostitution is legal, and especially those where prostitutes’ activity is regulated -with brothels for instance- consider prostitutes as sex workers and not victims. They tend to advocate and defend their position by arguing that they can protect prostitutes better by giving them employments rights such as the capacity to unionize, which they cannot access if they are considered victims.

Despite these considerations, which were considered in the writing of the report that led to the EP resolution, the choice was made to define prostitution as a form of sex violence. Hannah Manzour explained that there was a need to prioritize the invisible majority and that even though employment rights are an issue, they are not a priority. With the passing of this resolution, the EU’s position became clearer: prostitution is indeed a matter of gender equality, since it is a sexual violence.

1.2  – Gender equality as a competence of the EU

“When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”

Treaty on the Functioning of the European Union, Article 2 (2)

Gender equality is acknowledged as a fundamental right by the EU, therefore including it in its realm of action. Indeed, fundamental rights, as a subcategory of the area of freedom, security and justice, are considered to be a shared competence between the EU and its Member States^[4]. Both the EU and its Member States therefore have the capacity to legislate on this issue and adopt legally binding acts, the Member States exercising their competence for as long as the EU has not exercised its own. On gender equality, the EU could be considered having exercised its competence by listing equality between men and women among its tasks in the Treaty on the European Union (TEU)^[5] and by indicating its obligation to eliminate inequalities and promote equality between men and women in the Treaty on the Functioning of the European Union (TFEU)^[6].

However, this does not imply a full takeover by the EU on all gender equality matters. Indeed, protocol 25 of the TFEU on the exercise of shared competence specifies that “when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area”^[7]. Hence, the EU can be considered as exercising its competence, and therefore taking it away from the Member States, only on the precise issues it has legislated on.

In the case of gender equality, for instance, with the EP resolution not being mandatory, there is no obligation for the Member States to translate it into their domestic law. They therefore remain competent on this issue: they are and will remain the ones who legislate on prostitution inside their borders, at least until the EU takes a decision bearing a legal obligation to be implemented in domestic law for all Member States.

However, it can be noted that a non-compulsory resolution can still bear consequences. Indeed, while lacking the mandatory criterion, this resolution is still inciting the Member States to act. Although they have not all changed their legal system to the so-called Nordic one, France, for instance, has done so. On the actions taken by Member States to follow the resolution’s recommendations, Hannah Manzour stated that reforms were hard to monitor, especially in countries where this issue is tackled at a state level, as in Germany. She however pointed out that more and more countries were edging toward the Nordic model rather than toward the German one, meaning that, according to the supporters of this resolution and of the Nordic model, things are going in the right way, and the EP resolution might have something to do with it, although it is difficult to estimate how much.

2 – The practice: the EU’s incapacity to legislate on prostitution despite its responsibility

2.1 – An implicit recognition of prostitution as a form of trafficking calling for a European legislation

“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime, Article 3

The “Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children” supplementing the “United Nations Convention against Transnational Organized Crime”, also called the Palermo protocol, is recognized by the EU. It is cited in the directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims. This document clearly states that “in combating trafficking in human beings, full use should be made of existing instruments on the seizure and confiscation of the proceeds of crime, such as the United Nations Convention against Transnational Organized Crime and the Protocols thereto”^[8]. The EU has not given another definition of human trafficking or modified the UN’s, thereby implying its full endorsement of the latter.

At first glance, prostitution could seem excluded from this definition: prostitutes could indeed be considered to exercise their activity in free-will. That would be the argument advanced by supporters of a liberal model. The EU, for a long time, was amongst those. Indeed, in the La Haye conference of 1997 on harmonizing the fight against sex trafficking of women in EU, the Union specified its will to “fight the illegal traffic in persons”, which implies the existence of a legal traffic. From 1997 until the EP report of 2014, the EU therefore embraced a definition which focused on the protection of women who had not consented to their exploitation only, meaning they had to bear the weight of proving they were forced into prostitution^[9].

However, the adoption of this 2014 resolution by the EP marks a shift in the EU’s position on prostitution. Indeed, it endorses the Nordic model and states that “organized crime, human trafficking, extremely violent crime and corruption flourish in the shadow of prostitution”^[10]. To go even further, one could consider that this resolution actually fully considers prostitution to be in the realm of human trafficking as itrests on “the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”^[11]. The Palermo protocol even specifies that “the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used”^[12].

The reason behind this endorsement of the Nordic model, and therefore of the idea that prostitution is a form of human trafficking -although it is not clearly stated by the EU-, can be found in the fact that sexual markets are “largely controlled by organized crime”^[13], regardless of whether prostitution might be prohibited or not. Indeed, “in countries where prostitution is legal […] or in countries that recognize it as an industry […], the role of organized crime remains fundamental in the organization of markets”^[14].

Keeping this in mind, prostitution, and not only forced prostitution, is in fact considered by the EU as a form of human trafficking and should be distinctly acknowledged as such. Above all, the EU should assume its responsibility and act in accordance with this definition of prostitution.

Indeed, Olivier Nay, a French politist, wrote on international trafficking -which implicitly includes prostitution in the EU’s definition- that “the porosity of borders eases their unfolding. An efficient fighting method would have to be global and coordinated on an international scale, which is not the case at the moment”^[15]. Those facts remain true as of today.

2.2 – The EU’s unwillingness to take a judicially compelling decision on prostitution

“The European Parliament […] instructs its President to forward this resolution to the Council and the Commission”

European Parliament, Sexual exploitation and prostitution and its impact on gender equality

As stated, the EP resolution is non-mandatory and the Member States have no obligation to apply its recommendations. It is unlikely that the EU will manage to pass a legislation that is compulsory on prostitution. Indeed, this resolution passed with 343 votes in favor, 139 against and 105 abstentions^[16]. While only a simple majority was required, hence a passing of this resolution, the votes were rather split considering it bears no judicial obligation. Still, it can be deduced that the deputies are, for the most part, endorsing the resolution, the Nordic system and the holistic approach it is presenting. However, while the resolution concludes by “[instructing] its President to forward this resolution to the Council and the Commission”^[17], steps have yet to be taken towards the redaction of a judicially compelling document.

This is quite logical from the Member States’ point of view: with a majority of them having a system that differs from the Nordic one, changing it because of a European obligation could be difficult. Indeed, member states are under the weight of a path dependency^[18], and going against the cost of change might appear to high of a price for them.

More than that, and even though the majority of deputies voted in favor of the resolution, some states remain convinced that their system is better than the Nordic one. They have some arguments to back up their claims, although they are refuted by the supporters of the Nordic system. For instance, they claim that liberalizing prostitution allows for a better protection of the prostitutes by giving them rights such as the opportunity to unionize.

With these everlasting debates on which system is the best and in spite of the EP resolution, it is unlikely that we will see the EU adopt a unique model on prostitution any time soon. Moreover, the idea of legislating on what women do with their bodies appears as problematic and is not inciting the EU to take action on this issue, despite its pressing nature.

There is therefore a failing of the spillover effect’s theory, supported by Jean Monnet and theorized by the neofunctionalist Ernst Haas. According to this theory, by integrating a limited functional area with the creation of common rules, partially integrated states should go further with the integration of another field related to the initial one^[19]. But with prostitution, it appears that despite the integration of gender equality within the realm of EU’s action, there is still no subsequent integration of the Nordic system in the European legislation.

The complexity of the EU and the states’ interests are making it hard to trigger the spillover effect as intended by the European founders, even though the voting of the EP resolution shows a will to do so. However, by not implementing a legally binding legislation, the EU is going against its values and one could even see it as a refusal to fight human traffickers.

Conclusion

The situation can be summed up as follows: prostitution has been clearly recognized as an issue of gender equality and human rights by European deputies, and even implicitly as a form of trafficking, but the other institutions are refusing to take it upon them to legislate on it. This is certainly due both to the sensibility of the topic and to the fact that, in practice, it would be extremely difficult for Member States to agree on a change of their system regarding prostitution.

However, the EU has not even tried to carry out a project on unifying the European system on prostitution. With its unmatched level of integration for an international organization, it could be a great place to start fighting prostitution and sexual violences with a harmonized legislation, but the lack of political courage to act on it can be pointed out and understood as a refusal to tackle this issue efficiently.

“Finally, there came a time when everything that men had considered as inalienable became an object of exchange, of traffic and could be alienated. This is the time when the very things which till then had been communicated, but never exchanged; given, but never sold; acquired, but never bought – virtue, love, conviction, knowledge, conscience, etc. – when everything, in short, passed into commerce. It is the time of general corruption, of universal venality, or, to speak in terms of political economy, the time when everything, moral or physical, having become a marketable value, is brought to the market to be assessed at its truest value.”

Karl Marx, The Poverty of Philosophy

Anouk Deana

^[1] LAVALLÉE Diane, “La prostitution : profession ou exploitation ?”, Éthique publique, 2003, 5, 2

^[2] European Parliament, Resolution on sexual exploitation and prostitution and its impact on gender equality, 26 February 2014

^[3] Idem

^[4] Treaty on the Functioning of the European Union, Article 4

^[5] Treaty on European Union, Article 2

^[6] Treaty on the Functioning of the European Union, Article 8

^[7] Ibidem, Protocol 25

^[8] European Parliament and Council, Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, 5 April 2011

^[9] POULIN Richard, La Mondialisation du marché du sexe, Actuel Marx, 2002/1, 31, p. 120-121

^[10] European Parliament, Op. cit.

^[11] Idem

^[12] European Parliament and Council, Op. cit.

^[13] POULIN Richard, “La marchandisation prostitutionnelle mondiale. Violence, marché et crime organisé”, Les Temps Modernes, 2004/1, 626, p. 191

^[14] Idem

^[15] NAY Olivier, Lexique de science politique, 2017, p. 215

^[16] Legislative Observatory – European Parliament, Results of vote in Parliament. Statistics – 2013/2103(INI) | A7-0071/2014, available at: https://oeil.secure.europarl.europa.eu/oeil/popups/sda.do?id=24093&l=en

^[17] European Parliament, Op. cit.

^[18] PIERSON Paul, « Path dependence, increasing returns, and political science », American Political Science Review, 2000, 94/2, p.397

^[19] HAAS Ernst B., The uniting of Europe: political, social, and economic forces, 1958