Decision no. 2018-761 QPC of 1 February 2019

On 13 November 2018, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 423892 of 12 November 2018). This application was made on behalf of the Médecins du monde, Syndicat du travail sexuel, Aides, Fédération parapluie rouge, Les amis du bus des femmes, Cabiria, Griselidis, Paloma and Acceptess-t associations, and on behalf of Thierry S. and Giovanna R., Marie S., Christine D. and Marianne C., by SCP Spinosi et Sureau, Attorney for the Conseil d'État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2018-761 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in 9° bis of Article 131-16, Article 225-12-1, in 9° of paragraph 1 of Article 225-20, and Article 611-1 of the Criminal Code, in their formulation resulting from Act No. 2016-444 of 13 April 2016 aiming to strengthen the fight against prostitution and to help people working as prostitutes.

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Criminal Code;
• Act No. 2016-444 of 13 April 2016 aiming to strengthen the fight against prostitution and to help people working as prostitutes;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations of intervenors on behalf of the Coalition pour l'abolition de la prostitution association, and the Jean et Jeanne Scelles foundation by SCP Delamarre et Jéhannin, Attorney for the Conseil d'État and for the Cour de Cassation, registered on 30 November 2018;
• the observations of intervenors on behalf of the Amicale du nid, Zéromacho-Des hommes contre la prostitution, La maison des femmes de Paris, and Mémoire traumatique et victimologie associations by SCP Rocheteau et Uzan-Sarano, Attorney at the Conseil d'État and at the Cour de Cassation, registered on 3 December 2018;
• the observations of intervenors on behalf of the Regards de femmes association, registered on 3 December 2018;
• the observations on behalf of the Médecins du monde, Syndicat du travail sexuel, Aides, Fédération parapluie rouge, Cabiria, Griselidis and Acceptess-t associations, and on behalf of Thierry S. and Giovanna R., Marie S., Christine D. and Marianne C., applicants, by SCP Spinosi et Sureau, registered on 3 December 2018;
• the observations of intervenors on behalf of the Les roses d'acier association by Tewfik Bouzenoune, Attorney at the Paris Bar, registered on 4 December 2018;
• the observations of intervenors on behalf of the Le mouvement du nid, Osez le féminisme, and La clef associations by Lorraine Questiaux, Attorney at the Paris Bar, registered on 4 December 2018;
• the observations of intervenors on behalf of Lauren S., Ambrose T., Awen M., Gaëlle F., Célia R., Céleste V., Esther K., Alan Felipe O., Jimmy P., Juan F., Kay D., Louna K., Stella J., Chloé L., Carlos Alberto M., Juan Carlos G., Mélanie B., Virginie H., Juan Francisco O., Grégory A., Segundo Servando S., Timothée A., Nathan L. and Ysé F., by Nicolas Gardères, Attorney at the Paris Bar, registered on 4 December 2018;
• the observations on behalf of the Les amis du bus des femmes association, applicant, by Marine Thisse, Attorney at the Créteil Bar, registered on 5 December 2018;
• the observations on behalf of the Paloma association, applicant, by Amandine Le Roy, Attorney at the Nantes Bar, registered on 5 December 2018;
• the observations of the Prime Minister, registered on 5 December 2018;
• the observations of intervenors on behalf of the Équipes d'action contre le proxénétisme et d'aide aux victimes association, by Thomas Haas, Attorney for the Conseil d'État and for the Cour de Cassation, registered on 5 December 2018;
• the observations of intervenors on behalf of the Inter-LGBT association by SCP Spinosi et Sureau, registered on 5 December 2018;
• the observations of intervenors on behalf of the SOS Homophobie association, by Rémy Rubaudo, Attorney at the Paris Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Le planning familial association by Safya Akorri, Attorney at the Paris Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Act Up Paris association, by Yehudi Pelosi, Attorney at the Paris Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Agir Conseiller Travailler Unifier Protéger Sud-Ouest association, by Sara Khoury and Benjamin Francos, Attorneys at the Toulouse Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Association européenne contre les violences faites aux femmes au travail, and the Collectif féministe contre le viol association, by Frédérique Pollet Rouyer, Attorney at the Paris Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Arcat, Arap-Rubis, Autres regards, Avec nos aînées, Élus locaux contre le sida and Sidaction associations, by Camille Escuillié, Attorney at the Paris Bar, registered on 5 December 2018;
• the observations of intervenors on behalf of the Trans Inter Action association, by Benjamin Gourvez, Attorney at the Paris Bar, registered on 5 December 2018;
• the second observations of intervenors on behalf of the Amicale du nid, Zéromacho-Des hommes contre la prostitution, La maison des femmes de Paris, and Mémoire traumatique et victimologie associations by SCP Rocheteau et Uzan-Sarano, registered on 13 December 2018;
• the second observations of intervenors on behalf of the Coalition pour l'abolition de la prostitution association, and the Jean et Jeanne Scelles foundation by SCP Delamarre et Jéhannin, registered on 19 December 2018;
• the second observations on behalf of the Médecins du monde, Syndicat du travail sexuel, Aides, Fédération parapluie rouge, Cabiria, Griselidis and Acceptess-t associations, and on behalf of Thierry S. and Giovanna R., Marie S., Christine D. and Marianne C., applicants, by SCP Spinosi et Sureau, registered on 20 December 2018;
• the second observations of intervenors on behalf of the Équipes d'action contre le proxénétisme et d'aide aux victimes association, by Thomas Haas, registered on 20 December 2018;
• the additional documents produced and appended to the case files;
  After having heard Patrice Spinosi, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of Médecins du monde and eleven other applicants, as well as on behalf of Inter-LGBT, Marine Thisse, on behalf of Les amis du bus des femmes, Amandine Le Roy, on behalf of Paloma, Tewfik Bouzenoune, on behalf of Les roses d'acier, Nicolas Gardères, on behalf of Lauren S. and twenty-three other intervenors, Rémy Rubaudo, on behalf of SOS Homophobie, Safya Akorri, on behalf of Le planning familial, Yehudi Pelosi, on behalf of Act Up Paris, Célia Richard and Jérôme Richard, Attorneys at the Paris Bar, on behalf of Agir Conseiller Travailler Unifier Protéger Sud-Ouest, Camille Escuillié, on behalf of Arcat and five other intervenor associations, Benjamin Gourvez, on behalf of Trans Inter Action, Manuel Delamarre, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of the Coalition pour l'abolition de la prostitution and one other intervenor, Cédric Uzan-Sarano, Attorney at the Conseil d'État and at the Cour de Cassation, on behalf of the Amicale du nid and three other intervenor associations, Lorraine Questiaux, on behalf of Le mouvement du nid and two other intervenor associations, Frédérique Pollet Rouyer, on behalf of the Association européenne contre les violences faites aux femmes au travail, and one other intervenor association, Vanina Méplain, Attorney at the Paris Bar, on behalf of Équipes d'action contre le proxénétisme et d'aide aux victimes, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 22 January 2019;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. Article 611-1 of the Criminal Code, in its formulation resulting from the aforementioned Act of 13 April 2016, stipulates:
   “The act of soliciting, accepting, or obtaining relations of a sexual nature from a person who engages in prostitution, including on an occasional basis, in exchange for remuneration, promise of remuneration, provision of benefits in kind or the promise of such benefits is punishable by the fine provided for petty offences of the 5th class.
   “Natural persons found guilty of the petty offence in this article are also subject to one or several additional penalties mentioned in Article 131-16, and in the second section of Article 131-17.”
2. Article 225-12-1 of the same code, in its formulation resulting from the same law, stipulates:
   “When the act is a repeat offence under the conditions provided for in the second section of Article 132-11, the act of soliciting, accepting, or obtaining relations of a sexual nature from a person who engages in prostitution, including on an occasional basis, in exchange for remuneration, promise of remuneration, provision of benefits in kind or the promise of such benefits is subject to a fine of €3,750.
   “Soliciting, accepting or obtaining, in exchange for remuneration or a promise of a remuneration, provision of benefits in kind or the promise of such benefits, relations of a sexual nature with a person who engages in prostitution, including on an occasional basis, when said person is a minor or presents a specific vulnerability that is apparent or known by the offender, due to illness, disability, handicap or pregnancy, is punished by three years' imprisonment and a fine of €45,000.”
3. 9° bis of Article 131-16 of the same code, in the same formulation, provides for the rule that punishes a petty offence can provide, when the convicted offender is a natural person, for the following additional penalty:
   “The obligation to complete, if applicable, at the offender's expense, a course to raise awareness of the fight against the purchase of sexual favours.”
4. 9° of paragraph 1 of Article 225-20 of the same code, in the same formulation, provides that natural persons convicted for the offences listed in sections 1 bis, 2, 2 bis, 2 ter and 2 quater of Chapter V of the same code, related to offences against the dignity of persons, also would face the following additional penalty:
   “The obligation to complete, if applicable, at the offender's expense, a course to raise awareness of the fight against the purchase of sexual favours.”
5. The applicants, joined by certain intervenors, firstly reproach these provisions for punishing all purchases of sexual favours, including when these acts are carried out freely by consenting adults in a private space. This total and complete prohibition would violate the personal liberty of persons working as prostitutes, as well as that of their clients. This violation would likely not be justified as preserving public order, supporting the fight against procuring and human trafficking, or the protection of persons working as prostitutes. This results in a violation of the respect of personal privacy, as well as the right of personal autonomy, and the right to sexual freedom that comes from it. Secondly, this results in a violation of the right of free enterprise and the freedom of contract. Lastly, it is submitted that the punishing of all practices of prostitution would go against the principles of necessity and proportionality of penalties.
6. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the first section of Article 225-12-1 and Article 611-1 of the Criminal Code.
7. Moreover, certain intervenors submit that the disputed provisions would have the consequence of increasing the isolation and illegality of persons working in prostitution, and as such expose them to an increased risk of violence from their clients, and force them, should they continue to work in prostitution, to accept health conditions that would harm their right to the protection of their health.

• Concerning the objection to the violation of personal freedom:

8. According to Article 2 of the Declaration of Human and Civic Rights of 1789, “The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression.” Its Article 4 declares: “Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.”
9. It is the legislator's responsibility to ensure the reconciliation between the constitutional value of preserving public order and the prevention of offences, and the exercise of freedoms guaranteed by the Constitution, among which is the protection of personal freedom in Articles 2 and 4 of the Declaration of Human and Civic Rights of 1789.
10. The first section of Article 611-1 of the Criminal Code institutes a rule punishing the act of soliciting, accepting, or obtaining relations of a sexual nature from a person who engages in prostitution, including on an occasional basis, in exchange for remuneration, promise of remuneration, provision of benefits in kind or the promise of such benefits. The first section of Article 225-12-1 of the same code declares these same acts as misdemeanours when they are legally considered a repeat offence.
11. On the one hand, it comes from preparatory work that, in choosing from the disputed provisions to punish persons purchasing sexual favours, the legislator has understood that in denying procuring of its source of revenue, it is fighting against this activity and against human trafficking for sexual exploitation, and criminal activities founded on force and servitude of human beings. The legislator has thus ensured the respect of the dignity of human beings, safeguarding them from these forms of servitude, and supports the constitutionality of preserving public order and preventing offences.
12. On the other hand, Article 61-1 of the Constitution does not confer a general mandate for judgements to the Constitutional Council in a manner similar to that of Parliament, but only gives it the power to deliver a verdict on the constitutionality of laws submitted to it for review. If the legislator has prohibited all use of prostitution, including when the sex acts are shown to be freely committed between consenting adults in a private space, it is considered, for the great majority of cases, that persons working in prostitution are victims of procuring and exploitation, and that these offences are made possible by the existence of a demand for sexual favours for pay. By prohibiting this demand by its disputed criminalisation, the legislator has used a means that is not manifestly inappropriate relating to applied public policy.
13. It follows from the foregoing that the legislator has assured a reconciliation that is not manifestly unbalanced between, on the one hand, the objective of the constitutionality of maintaining public order and the prevention of offences and safeguarding human dignity and, on the other hand, personal freedom. The objection to the violation of this freedom must therefore be dismissed.

• Concerning the other objections:

14. Firstly, according to Article 8 of the Declaration of Human and Civic Rights of 1789: “The Law must prescribe only the punishments that are strictly and evidently necessary...” If the need for penalties attached to offences is within the legislator's judgement, it is up to the Constitutional Council to ensure that the penalty incurred is not manifestly disproportionate to the offence.

15. The disputed provisions provide for a penalty for the use of prostitution services, a fine of 1,500 euros, increased to 3,750 euros for repeat offenders, as well as certain additional penalties. Concerning the type of behaviour that is punished, the penalties thus instituted are not disproportionate to the offence. Consequently, and for the reasons specified in paragraphs 11 and 12, the objections to the violation of the principles of necessity and of proportionality of penalties must be dismissed.

16. Secondly, according to the eleventh section of the Preamble of the Constitution of 1946, the Nation “shall guarantee to all, notably to children, mothers and elderly workers, protection of their health”. It is not for the Constitutional Council to substitute its judgement for that of the legislator on the health consequences for persons working as prostitutes for the disputed provisions, once this judgement is not, as far as it knows, manifestly inadequate. The objection to the violation of the right to protection of health must therefore be dismissed.

17. Lastly, as provided for in Article 4 of the Declaration of Human and Civic Rights of 1789, the legislator has the liberty to impose limitations on the right of free enterprise and the freedom of contract, related to constitutional requirements or requirements that are justified by the public interest, on condition that they do not result in disproportionate infringements on the objective undertaken.

18. For the same reasons specified in paragraphs 11 and 12, the objections to the violation of the right of free enterprise and the freedom of contract must be dismissed.

19. It follows from the foregoing that the first section of Article 225-12-1 and Article 611-1 of the Criminal Code, that violate neither the right to personal privacy nor any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1.- The first section of Article 225-12-1 and Article 611-1 of the Criminal Code, in their formulation resulting from Act No. 2016-444 of 13 April 2016 aiming to strengthen the fight against prostitution and to help people working as prostitutes, conform to the Constitution.
Article 2.- This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 31 January 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Jean-Jacques HYEST, Lionel JOSPIN, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI and Michel PINAULT.

Published on 1 February 2019.