—Thomas Joyce, Tilburg University
In July 2024, the European Court of Human Rights (ECtHR) held that the criminalisation of the purchase of sexual services did not constitute a violation of the respect for private life, pursuant to Article 8 of the ECHR. A large number of sex workers had brought the case against France after procedures before the Conseil d’État did not succeed in overturning the adoption of Law No. 2016-444 (2016), codified in Articles 611-1 and 225-12-1 of the French Penal Code. Under this legislation, while the provision of sexual services remains legal, the purchase of sexual services is criminalised, punishable with a fine of up to €3,750 in standard cases. According to the Court, there was an existent and legal interference with the right to privacy of sex workers, but this could be justified as legitimate and necessary under France’s policy of the “abolition” of prostitution. This commentary questions the persuasiveness of the Court’s reasoning as it relates to this policy.
Arguments
The applicants argued that the new Articles of the French Penal Code conflated forced prostitution with free consensual sexual activity, and resulted in a number of risks, dangers, and problems for sex workers. They claimed that existing laws, namely Articles 225-4-1 to 225-4-9 of the French Penal Code on human trafficking, and Articles 225-5 to 225-12 on pimping, made the imposition of further measures to criminalise sex unnecessary (§ 77). Moreover, they argued that the measures taken by the Government had been shown to be ineffective, counterproductive, and contradictory (§ 78-82). The applicants emphasised that freedom of consensual sexual activity is an important aspect of an individuals’ private life, and should be free from state interference, making specific reference to KA and AD v. Belgium (nos. 42758/98 and 45558/99, § 85, 17 February 2005) and Pretty v. the United Kingdom (no. 2346/02 , § 71, ECHR 2002 – III) in which the particularly high degree of protection afforded to the intimate sphere of sexual relations had been previously established (§ 81).
The French Government argued that it has an abolitionist policy regarding prostitution that justifies its position. According to the Government, abolitionism in this case refers to the aim of eradicating prostitution without banning it (§ 92). Relying on VT v. France (no. 37194/02 , § 25, 11 September 2007) in which the Court deemed forced prostitution incompatible with human dignity, and SM v. Croatia (no. 60561/14 , §§ 109-122, 25 June 2020) in which the Court deemed that forced prostitution fell under the scope of Article 4 (slavery) (§ 83-84). France further claimed that interference with the rights enshrined under Article 8 could be justified to fulfil crucial societal needs, including defending public order and safety, preventing criminal offences, protecting the health, rights, and freedoms of persons, combatting human trafficking and pimping, reducing violence against women, and furthering equality between the sexes (§ 85-93). The effort taken by the Government to protect prostitutes, such as through the repeal of the law against soliciting (§ 83), and measures taken to prevent trafficking and exploitation (§ 85-86), and increase safety measures and exit programs (§ 88-89) were also raised as points in the Government’s favour. France also contested that as there is no consensus amongst European Member States on how to deal with prostitution, the Government was entitled to approach it with a certain margin of appreciation, as long as the measures employed were proportionate (§ 91).
Judgment
To determine whether there had been a violation of Article 8, the ECtHR followed the classic four part test concerning the applicant’s right to private life: first, on the existence of an interference of the right to private life, second, on the legality of the interference, third, on the legitimacy of the aims pursued in light of said interference, and fourth on the necessity of said interference to pursue said aims.
For the first point of determination, the Court found summarily that the criminalisation of the purchase of sexual acts would normatively constitute an interference with the applicant’s right to respect for their private life, as closely tied to their personal autonomy and sexual freedom (§ 136-138); the Court equally determined that the legal basis for the interference is not in dispute, having been codified in law through proper procedures in Articles 611-1 and 225-12-1 of the French Penal Code (§ 139).
In examining whether the aims pursued through this law were legitimate, the Court relied on VT v. France (no. 37194/02 , § 24, 11 September 2007)in which it previously recognised France’s abolitionist approach to the regulation of prostitution, and Rantsev v. Cyprus and Russia (no. 25965/04 , §§ 283-288, January 2010)and S.M v. Croatia, (no. 60561/14, §§ 109-122, 25 June 2020), in which it previously stressed the importance of combatting prostitution and human trafficking (§ 141-143). The Court briefly explained that on this basis, the aims of the new Articles of the French Penal Code fell within the scope of the meaning of paragraph 2 of Article 8 of the ECHR, and could be justified on the basis of the public protections enshrined therein (§ 144). The Court did not appear to see the need to elaborate the argument further.
The main locus of attention was thus, as often, whether existent, legal, and legitimate interference was necessary in a democratic society. The first point of determination was whether the necessity of the interference was allowed for by the Governments’ margin of appreciation under law (§ 147-153). The Court clarified that, in general, when an important aspect of an individual’s existence, such as their sexual relationships, is at stake, the margin of appreciation tends to be limited. However, the Court also noted that the margin of appreciation may be wider in cases where private and public interests need to be balanced, especially when the issue in question is a moral or ethical one, including in specific relation to prostitution, about which there remains no international consensus. On this basis, the Court determined that France could be granted a wide margin of appreciation; as long as a fair balance was struck between competing interests, France should be entitled to legally address the issue of prostitution through the criminalisation of the purchase of sexual services (§ 153).
The second point of determination was whether the interference was proportionate. While recognising the difficulties faced by sex workers, and the applicants’ arguments that their right to personal autonomy had been interfered with, the Court deemed it inconclusive whether the risks associated with prostitution were exacerbated by the new law or rather the direct cause of prostitution itself (§ 154-155). The Court further clarified that the law had been brought to bear as part of a comprehensive legal strategy to combat prostitution, through a long and complex legislative process that took into account potential harms to sex workers and included several measures – such as the decriminalisation of soliciting, and newly available supports for sex workers – that had been considered broadly positive by both sides of the debate (§ 158-162). As democratic procedures had been followed, and as the law in question centred on a contested societal issue, the Government had the right to take their own decision on the matter; it was up to the Court, rather, to consider whether the given law had balanced the different interests at stake in an appropriate manner (§ 165). Ultimately, following this line of reasoning, the Court deemed that the law was proportionate with regards to France’s aims (§ 166), recognising the Government’s right to adopt a policy of abolition (§ 156).
Having regard to these considerations, the Court considered that France had struck a fair balance between the private and public interests involved, and as such held unanimously that there had been no violation of Article 8.
Comment
Much of this judgment relates, directly or indirectly, to France’s policy of abolition. Yet it is especially worthwhile to home in on two parts of the four part test specifically: the legitimacy of the aims pursued, and the necessity of the interference.
The ECtHR found that the abolitionist aim pursued through the law was legitimate. However, in their reasoning (§ 140-145) the Court justified their position by elaborating on the importance of combatting prostitution and human trafficking as a means of protecting the health, dignity, and freedom of persons. Within the same line abolitionism itself, as a particular concept, was only dealt with summarily (§ 141), the Court relying heavily on its related estimations in VT v. France. In this case, however, the Court simply acknowledged the policy of abolition in light of the protection of the dignity of persons, with no further context, analysis, or explanation. While it would have been worthwhile to interrogate whether abolitionism, not in terms of the justification for its implementation (combatting prostitution and human trafficking), but in terms of the aim of the policy itself (eradicating prostitution without banning it) could actually be deemed legitimate in the criminal law, this is not something which the Court deigned to do.
In criminal law theory, abolition typically refers to legal realities created by the state – laws, systems, and institutions – which by virtue of being under direct state control, can be repealed out of existence. The death penalty stands as a prototypical example, a state run form of punishment once widely applied across the world, that has since been abolished in many countries through the removal of punishment guidelines that allowed for same (Hood and Hoyle, 2016). In contrast, a behaviour outside of state control conducted freely by people cannot be abolished by said state; while measures may be taken to exert control over the given behaviour, to deter it, to punish its instance, eradicating the behaviour entirely is not within the remit of criminal law. The state does simply not have the control over its populous that it has over its legislation.
The issue comes largely from the terminology employed. Rather than being “abolitionist” France’s policy is, in fact, prohibitionist. In prohibitionism, a legal reality is created by the state; in the case of the purchase of sexual services, its ban. Such activities are prohibited by the state – not eliminated, but restricted. Though widely contested in the academic literature (Pitcher et al., 2017), this approach to prostitution has clearly been accepted as legitimate in law, being employed by multiple countries worldwide. Yet the difference between prohibition proper and France’s abolition is that prohibition proper does not aim towards the impossible. Rather than seeking the eradication of the behaviour it prohibits, prohibition proper seeks to reduce the harms associated with the given act by increasing the difficulties associated with its perpetration. Assault, rape, murder: there are a lot of criminal activities that France may wish to eliminate. Nonetheless, nowhere in their domestic legislation do they aim to abolish such behaviours – likely because it is generally accepted that they would not have the power to achieve such a lofty aim.
Abolition, as a term, finds meaning in the criminal law in relation to prostitution not as a criminalising measure that seeks to eradicate prostitution or related activities, but instead as a potential measure taken by the state to repeal (abolish) the legal realities surrounding prostitution (the ban on the purchase of sexual services). In short, “abolition” means abolition of the law, not abolition of the act. When the French Government argues that they seek “to eradicate the practise of prostitution without, however, prohibiting it” (§ 92) they are making a contradiction of terms. The only eradication within the Government’s remit under the criminal law is the eradication of the law governing prostitution; and while this would end the criminalisation of prostitution related activities, it would certainly not ban the act of conducting commercial sex transactions in a factual sense.
In reference to the necessity of the interference (§ 146-167), the Court found that France’s policy of abolition struck a proportionate balance between the public (largely the prevention of human trafficking and the protection of women and minors against exploitation) and private (the sexual autonomy of sex workers) interests at stake. It is unsurprising, on this basis, that the Court found in favour of France, given the inequality between those respective public (related to Article 2, 3, 4, and 5) and private (related to Article 8) rights. Abolitionism makes this inequality explicit by clearly aligning the criminalisation of the purchase of sexual services to the ending of human trafficking and commercial sexual exploitation. Yet as previously described, this link is far from explicit – it may even be tenuous (Skilbrei and Holmström, 2021). Given the high degree of protection normally disposed under Article 8, especially in defence of sexual autonomy, it is worth considering whether the Court would have made another determination if the balance of rights had been assessed differently. The test for proportionality implies a balance between the rights being infringed and the justification for the infringement; said infringement is justified through the achievement of its aim. It is difficult to see, thus, when an aim is impossible, how said infringement could be summarily justified. Equally, if the aim of abolition had been taken instead as the reduction of demand for sexual services, without making claim to eliminating human trafficking and sexual exploitation, it would likely not have had the same implied yet robust legal support.
Ultimately, it is surprising that the ECtHR would uncritically support the legitimacy and necessity of what France refers to as its abolitionist approach, as the policy presents an aim that is apparently impossible to achieve, confused in its terminology, and in contradiction of legal principle. Going beyond legitimacy to necessity, given that the proportionality of the measures taken was judged in reference to the lofty aim of dispelling human trafficking and exploitation, it may be that, had the courts taken a closer look at the actual stated aim of this policy, and the impossibility of its achievement, they would not have been so generous in their designations.
Suggested citation: Thomas Joyce, Can a Policy with an Impossible Aim be Legitimate and Necessary? France’s ‘Abolitionist’ Policy in M.A. and Others v. France, Int’l J. Const. L. Blog, Jul. 15, 2025, at: http://www.iconnectblog.com/can-a-policy-with-an-impossible-aim-be-legitimate-and-necessary-frances-abolitionist-police-in-ma-and-others-v-france/
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