Rb. Gelderland - AWB 23/5488

Rb. Gelderland - AWB 23/5488
Court:	Rb. Gelderland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 4(11) GDPR Article 9 GDPR Article 10(1), Directive 2006/123/EC Article 4(6), Directive 2006/123/EC Article 2 Aanwijzingsbesluit tippelzone Article 3(19) Algemene Plaatselijke Verordening
Decided:	28.06.2024
Published:	28.06.2024
Parties:	Plaintiff 1, Plaintiff 2, and Clara Wichmann Bureau Foundation Mayor of Nijmegen
National Case Number/Name:	AWB 23/5488
European Case Law Identifier:	ECLI:NL:RBGEL:2024:3967
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rb. Gelderland (in Dutch)
Initial Contributor:	sarthak

A court held that the registration with the municipality as a sex worker could not be regarded as explicit consent to the processing of sensible data under Article 9 GDPR. Therefore, the court found the registration requirement to be illegal.

English Summary

Facts

Two data subjects wanted to register as street sex workers in the prostitution zone of the municipality Nijmegen. This registration is mandatory for offering sexual services as the General Municipal Ordinance Nijmegen (“Algemene Plaatselijke Verordening Nijmegen - APV”) prohibits street prostitution in the municipality, except in designated areas.

On 22 March 2022, the municipal executive (“het college”) designated a section of a street as an area where street prostitution was permitted, provided certain conditions are met. This was the designation decree (”aanwijzingsbesluit"). The conditions included mandatory registration with the mayor for street sex workers, who had to be at least 18 years old, and could either demonstrate that they were working as street sex workers in the city since 2020, or that they utilised healthcare services for street sex workers in the city since that date.

On 27 and 28 April 2022, the data subjects submitted their application for registration in the new designated area to the mayor of the municipality (the controller).

On 4 July 2022, the controller told the data subjects it would reject their application, to which the data subjects submitted a statement with their views to the controller.

On 1 August 2022, the controller still rejected both applications, because the data subjects failed to adhere to the conditions for the registration.

On 9 September 2022, the data subjects objected to the rejections together with Bureau Clara Wichmann (“Stichting Bureau Clara Wichmann – BCW”), a legal entity advocating for women's rights and combating gender discrimination.

On 10 July 2023, the controller dismissed the objection. Following this, the data subjects together with BCW filed an appeal against the controller's decision at the District Court of First Instance of Gelderland ("Rechtbank Gelderland").

The data subjects argued that the registration requirement, along with the conditions attached to it, was in conflict with the GDPR and Directive 2006/123/EC on services in the internal market (Services Directive), which regulates the provision of services within the EU. The data subjects argued that the fact that a person works as a sex worker should be considered special personal data under Article 9 GDPR. Therefore, the registration requirement processes special categories of personal data under Article 9 GDPR, which is not allowed. Moreover, the data subjects argued that the condition imposed by the mayor, which required street sex workers to demonstrate prior work experience or healthcare service usage in the municipality since 2020 was unlawful in light of the Services Directive.

The controller argued that the registration requirement complied with the GDPR, because the data subjects explicitly consented to the processing of their special personal data under Article 9 GDPR by submitting their application. The controller further argued that the registration requirement complied with the GDPR, because there was a compelling public interest that made the processing necessary, amongst other public order and the safety and well-being of street sex workers.

Holding

Admissibility of the appeal

The court held that BCW's appeal was inadmissible in the data subject’s appeal, because it was not directly affected by the decisions in question. The court distinguished this case from a previous ruling where BCW was considered an interested party, emphasizing that the current case involved individual decisions affecting specific individuals rather than a broader policy affecting a general or collective interest.

Review of the Registration Requirement under the GDPR

The court held that the registration requirement violated the GDPR for several reasons.

The court dismissed the controller's argument that the data subjects explicitly consented to the processing of their special personal data under Article 9 GDPR. The court found that an application to register as street sex worker did not equate to explicit consent because the application form did not clearly indicate that such consent was given by the data subjects. Taking into account Article 4(11) GDPR, consent could not be freely given if the data subject did not have a genuine or free choice, or could not refuse or withdraw without adverse consequences. The court thus held that by requiring registration as a condition for offering sexual services as a street sex worker, street sex workers could not refuse or withdraw their consent to the processing of special categories of personal data without adverse consequences. Thus, submitting an application to be registered as street sex workers could not be regarded as providing explicit consent to the processing of special categories of personal data under Article 9 GDPR.

The court also rejected the controller’s argument that the registration was lawful as there was a compelling public interest. The court found that these objectives did not necessitate the processing of special personal data, as there were alternative ways to address public order issues and provide care for street sex working without requiring registration.

Compliance with the Services Directive

The court agreed with the data subjects that the requirement for street sex workers to demonstrate prior work in the municipality or use of healthcare services since January 2020 was in conflict with the Services Directive. The court held that the registration requirement amounted to a licensing system under the Services Directive. The court further held that the condition was unjustified because it was based on the municipality’s extinction policy, which aimed to phase out street sex work. The court found that this policy objective did not constitute an "overriding reason of general interest" under the Services Directive and was not sufficiently substantiated by concerns for public order or safety.

Conclusion

The court concluded that the registration requirement was non-binding because it conflicted with the GDPR. However, the court did not declare the entire Designation Decree non-binding, particularly the part that designated the location for the red-light district. The court emphasised that the decision to open the prostitution zone without a registration requirement was a policy matter for the municipal council. Thus, the the designation of the prostitution zone itself remained valid.

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English Machine Translation of the Decision

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

Summary
1. This ruling concerns the requests for registration of claimants 1 and 2 as street sex workers, which were rejected by the mayor. This registration is necessary in order to be allowed to offer sexual services in the prostitution zone in Nijmegen. The claimants do not agree with the rejection of the requests. They believe that they meet the conditions for admission to the prostitution zone. In addition, they take the position that a registration requirement and the conditions attached to registration, as included in the Designation Decree of 22 March 2022, which was established by the board of mayor and aldermen of Nijmegen, are unlawful. The court assesses the rejection on the basis of the grounds for appeal of the claimants. In view of the grounds for appeal, the ruling also concerns the question of whether the court can rule in this case on the registration requirement and the conditions attached to it and, if so, what the consequences should be.

1.1.
The court rules that the appeal is inadmissible insofar as it was filed by Bureau Clara Wichmann (BCW) and well-founded insofar as it was filed by claimants 1 and 2. The court will explain below how it arrived at this decision and what the consequences of this decision are.

1.1.1.
The court rules that the appeal is inadmissible insofar as it was filed on behalf of BCW. The reason for this is that the rejection of the requests for registration only have direct consequences for claimants 1 and 2 and not for BCW. See under 4. In considerations 5. to and including 9.2., claimants therefore only refer to claimants 1 and 2.

1.1.2.
In addition, the court rules that it can review the Board's Designation Decision containing the registration obligation and the conditions attached to registration. It is important for this that the court regards the Designation Decision as generally binding regulations. Such regulations can be tested ‘exceptionally’ if, as in this case, they are applied to specific decisions (in this case: the rejected requests for registration). See under 5.

1.1.3.
Claimants 1 and 2 have put forward a large number of grounds. They have relied on national, European and international laws and regulations. They have argued, among other things, that the registration requirement is in conflict with the General Data Protection Regulation (GDPR). According to claimants 1 and 2, the registration requirement and the associated condition that street sex workers must demonstrate that they have worked regularly as a street sex worker in Nijmegen since 1 January 2020 or have made use of the healthcare services in Nijmegen since that date is in conflict with Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (Services Directive). The court agrees with claimants 1 and 2 on this. The registration requirement is in conflict with the GDPR and is therefore non-binding. See under 6 and 7. The court is also of the opinion that the condition set by the mayor is in conflict with the Services Directive. This condition is disregarded. See under 8.

1.2.
The applicable statutory rules are included in the appendix to this ruling.

Procedural history
2. Claimants 1 and 2 requested registration for the prostitution zone in Nijmegen. The mayor rejected these requests on 1 August 2022. In the contested decision on the objection of claimants of 10 July 2023, the mayor maintained his rejection of the requests for registration of claimants 1 and 2.

2.1.
Claimants lodged an appeal against the contested decision. The mayor responded to the appeal with a statement of defence.

2.2.
The court heard the appeal at a hearing on 17 May 2024. The following participated: claimants 1 and 2, [person A] and [person B] on behalf of BCW, the authorised representatives of claimants and the authorised representatives of the mayor.

Assessment by the court
Arrival of the decision

3. On the basis of the General Local By-law Nijmegen (APV), street prostitution is prohibited in the municipality of Nijmegen.1 This prohibition does not apply to or at places and areas designated by the board of mayor and aldermen, if the regulations established in that designation decision are observed. According to the APV, these regulations concern in any case the times at which the prohibition in the first paragraph does not apply, the age of the prostitute and the location where the finishing must take place.2

3.1.
On 22 March 2022, the board designated part of the Nieuwe Marktstraat in Nijmegen as an area where street prostitution is not prohibited (Designation Decision). The Designation Decree stipulates that the provision of sexual services is reserved only for street sex workers who have registered with the mayor for that purpose.3 In addition, the board has laid down the following regulations in the designation decree:

‘b. the registration referred to in the previous paragraph is reserved only for street sex workers who:

• have reached the age of 18;

• can demonstrate that they have worked regularly as a street sex worker in Nijmegen since 1 January 2020; or:

• can demonstrate that they have made use of the care provision in Nijmegen for street sex workers since 1 January 2020;

c. no street sex work is carried out by persons in violation of the provisions of or pursuant to the Foreign Nationals Employment Act or the Aliens Act 2000;

d. the designated location may only be used for street sex work from

8:00 PM to 2:00 AM - with the exception of: December 31 from 8:00 PM to January 1 to

2:00 AM;

e. the so-called finishing must take place in the finishing location set up for this purpose on Nieuwe Marktstraat.’

3.2.

Plaintiff 1 submitted an application for registration for the prostitution zone on April 27, 2022. Plaintiff 2 submitted an application on April 28, 2022. On July 4, 2022, the mayor announced to both plaintiffs that he intended to reject the applications. Plaintiffs 1 and 2 submitted a statement of views on this intention on July 13 and 15, 2022 respectively. On August 1, 2022, the mayor rejected both applications, because according to the mayor, plaintiffs 1 and 2 do not meet the conditions for registration.

3.3.
On 9 September 2022, claimant 1, claimant 2 and BCW objected to the rejections. On 10 July 2023, the mayor upheld the rejections of the registration requests in the contested decision in response to the objections of claimants.

Is BCW admissible in its appeal?

4. The court assesses ex officio whether BCW's appeal is admissible. The court answers this question in the negative: BCW's appeal is inadmissible. The reason for this is that only an interested party can object to decisions. However, BCW is not an interested party in the decisions rejecting the requests of claimants 1 and 2. Interested party is understood to mean the person whose interest is directly affected by a decision.4 In the case of legal persons, the general and collective interests that they specifically promote on the basis of their objectives and evident from their actual activities are also considered to be their interests.5 This must concern a general or collective interest derived from the statutory objective, which is or threatens to be directly affected by a decision. That interest must be able to be seen separately from that of the individual persons and its promotion must show features of promotion of supra-individual interests.6

4.1.
According to its statutes and explanation during the hearing, BCW aims to:

( a) promote the emancipation of women, improve their legal position and social and societal position and combat discrimination against them, in particular by conducting legal proceedings;

( b) be an ally in combating all forms of gender discrimination, inequality and stereotyping, in particular by conducting legal proceedings; and

( c) performing all further acts that are related to the above in the broadest sense or that may be conducive to it.

4.2.
BCW argues that the position of sex workers in general is at issue, because - as the court understands it - the decisions implement the registration obligation and the municipal extinction policy. This affects the position of sex workers in general. With the objection and the appeal, BCW aims to stand up for the emancipation of women in society in the broadest sense and their legal position. The interests of female sex workers and sex workers who identify as women fall under this. BCW also carries out actual work in this area: it is involved in the development of policy and legislation in the area of sex work, is in contact with interest groups and is an expert party in cases. In addition, BCW supports sex workers by answering (legal) questions. In support of its position, BCW refers to the ruling of the Trade and Industry Appeals Tribunal (CBb) of 22 June 2017 in which BCW's appeal against the Performance Description Decision for Integrated Maternity Care was established.7 Based on this decision, which had direct consequences for healthcare providers, integrated rates could be charged for the entire maternity care chain. BCW was considered an interested party in that procedure.

4.3.
This argument by BCW fails. In order to answer the question of whether BCW is an interested party, it is important whether the rejections of the requests for registration directly affect or could directly affect the rights of women or street sex workers in general. This is not the case with the rejections of the requests for registration. The individual rejections only directly affect the interests of claimants 1 and 2. With the appeal, BCW wants to question the registration obligation and the conditions for registration from the Designation Decision. However, that registration obligation and the conditions are not a direct consequence of the contested decisions, but of the Designation Decision and its application in individual cases. This is a difference with the ruling of the CBb, to which BCW refers. In that case, the contested decision was of a general nature. Although that decision only concerned the financing of another maternity care organisation, in the opinion of the CBb it could not be ruled out that that decision would have consequences for the freedom of choice of women and/or the right to self-determination. This was therefore a direct consequence of the contested decision. Such direct consequences of the rejections of the applications for registration to be allowed to work as a street sex worker do not exist for BCW. The fact that rejections, such as these, are experienced as unjust or unlawful by other women and can have an impact on them, is insufficient to assume a direct consequence. The interest that BCW has in the decisions on the applications for registration cannot, given the individual nature of the rejection decisions, be regarded as a collective interest derived from its statutory objective that transcends individual advocacy.

Can the registration requirement and the conditions for registration be reviewed by the court?

5. The claimants argue that the Designation Decree is contrary to the law and is therefore partially non-binding or must be partially disregarded. They take the position that the Designation Decree is a generally binding regulation that can be reviewed exceptionally when assessing the decisions to reject their requests for registration.

5.1.
The mayor first of all takes the position that the question of whether or not certain data may be registered is not relevant in these proceedings. According to the mayor, the Designation Decree and the registration requirement and conditions for registration laid down therein are not subject to separate assessment in these proceedings. In addition, the mayor takes the position that the Designation Decree, with the designation of part of the Nieuwe Marktstraat in Nijmegen, in any case also has the character of a concretising decision of general application (cbas). Legal remedies can be used separately against a cbas. No objection was lodged against the Designation Decree. If the Designation Decree is a cbas, then in principle the lawfulness of the decision should be assumed. According to the mayor, the court will therefore have to assess whether the lawfulness of that decision should be assumed.

5.2.
The mayor's argument fails. The question of whether it is permitted to register special data and whether the conditions for registration may be applied can be assessed in this procedure. The Designation Decree is namely a generally binding regulation. It is important for this that the board used the regulatory authority that the municipal council granted to the board in the General By-law when adopting the Designation Decree. The Designation Decree includes a registration obligation for street sex workers and sets out the conditions for registration. This obligation and the conditions contain independent legal standards that are susceptible to repeated application. After all, they can be invoked against anyone who wants to offer sexual services as a street sex worker in the area designated in the Designation Decree. The objections of the claimants also focus on the independent legal standards. The mere fact that another part of the Designation Decree concerns the designation of part of the Nieuw Marktstraat in Nijmegen as a prostitution zone and does not contain any independent legal standards in this respect does not alter this.8 Generally binding regulations can be reviewed by the court on an exceptional basis. An exceptional review means that the court reviews the generally binding regulation on which the decision is based, in this case the Designation Decree. The court is limited in this respect. The Designation Decree can be reviewed by the court for legality and the court is competent to judge whether the generally binding regulation in question provides a sufficiently sound basis for the contested decisions.

Is the registration obligation in conflict with the General Data Protection Regulation?

6. The claimants argue that the Designation Decree is in conflict with the prohibition on the processing of special personal data as laid down in the General Data Protection Regulation (GDPR). The fact that a person works as a sex worker must be regarded as special personal data within the meaning of the GDPR. Processing thereof is prohibited in principle.9 The claimants emphasise that privacy is an essential condition for sex workers to be able to practice their profession safely and to be able to go through life safely. They state that the registration requirement provides for the processing of special personal data while this is not permitted.

6.1.
The mayor first states that the registration requirement is in accordance with the GDPR because the claimants have given explicit permission for the processing of their special personal data.10 They have submitted a request for registration themselves. This would have complied with the GDPR.

6.2.
This argument of the mayor fails. The claimants have not given explicit permission for the processing of special personal data. After all, there is no evidence that it has been explicitly stated that such permission has been given. The fact that the claimants have submitted a request for registration is insufficient for this. The form does not state that this grants permission for the processing of special personal data. In addition, the GDPR defines consent as ‘any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her’.11 Consent cannot be deemed to have been freely given if the data subject has no genuine or free choice or cannot refuse or withdraw consent without adverse consequences.12 By requiring registration as a condition for offering sexual services as a street sex worker, street sex workers cannot refuse or withdraw their consent to the processing of special personal data without adverse consequences. Submitting a request for registration cannot therefore be regarded as giving explicit consent to the processing of special personal data.

6.3.
The mayor also takes the position that the registration requirement is in accordance with the GDPR, because there is a compelling public interest that makes this processing necessary. This compelling public interest lies in the objectives that are served by the registration requirement.

6.4.
This argument by the mayor also fails. There is no compelling general interest that makes the processing of special personal data necessary. The Designation Decree itself does not explain what the compelling general interest in the registration requirement consists of. The board proposal on the Designation Decree refers to the council letter of 21 December 2021. That letter states that, according to the board, the 'manageability, the safety of street sex workers and the importance of good care' constitute a compelling general interest. In the statement of defence and during the hearing, the mayor - in summary - mentioned the following three objectives that would underlie the registration requirement:

1. The designation decision is a management measure: when there was a prostitution zone without a registration requirement, there was a lot of nuisance and the prostitution zone attracted people from Eastern European countries. This also caused problems in the city centre with drug-addicted prostitutes. In the interest of public order, the board wants to know who is working there.

2. The board aims to improve the health and safety of street sex workers with the registration requirement. According to the mayor, this is more about the well-being of street sex workers than about physical safety. Safety is relative, because street sex workers run the greatest risk when they are alone with the client. In order to be able to provide care and improve the well-being of street sex workers, the board wants to know who is providing sexual services as a street sex worker in the tippelzone.

3. The board aims to shape the ‘extinction policy’ with the registration requirement. The board does not want to admit any new street sex workers, so that the tippelzone can be closed in the long term.

6.4.1.
However, the objectives mentioned by the mayor, which partly correspond to the interests that the board itself mentioned in the council letter, are not important general interests that make the processing of special personal data necessary. After all, this concerns special personal data. Registration of special personal data is only permitted in exceptional cases. Although the interest of public order can constitute a compelling general interest, it is firstly not clear that registration of street sex workers is necessary to protect this interest. Nuisance can also be tackled without registration of special personal data and the attractive effect of the tippelzone on street sex workers from other countries can be countered, for example, by limiting the number of street sex workers per day. This can also be done without registration. Furthermore, registration in itself cannot prevent problems with drug-addicted prostitutes. Registration is also not necessary in this respect. The second objective put forward by the mayor also does not constitute a compelling general interest within the meaning of the GDPR. Regardless of whether the health and safety of a specific professional group can constitute a compelling general interest that justifies registration of special personal data, registration of all street sex workers is not necessary in order to be able to provide care. Finally, there cannot in itself be a compelling general interest in (being able to implement) the extinction policy. Not wanting to admit new street sex workers is a policy objective of the board, but not a compelling public interest.

6.5.
The above means that the registration requirement is in conflict with the prohibition on the processing of special personal data in the GDPR. The ground for appeal is successful.

Interim conclusion

7. The above means that the board should not have included a registration requirement in the Designation Decree. Because the registration requirement is in conflict with the GDPR, the Designation Decree is non-binding in that respect. Contrary to what the mayor argued at the hearing, the success of this ground for appeal does not lead to the entire Designation Decree being declared non-binding, including the designation of the location and thus the opening of the prostitution zone. This would mean that the Nieuwe Marktstraat can no longer be used as a prostitution zone. The appeal is well-founded because the registration requirement should not have been imposed. For the rest, the Designation Decree is not in conflict with the GDPR. The fact that the Designation Decree hereby takes on a different scope than the board had anticipated (opening of Nieuwe Markstraat without registration requirement) and that the board would then prefer that no prostitution zone be established at all in that case, is not a reason for the court to declare the Designation Decree completely non-binding. This is a policy consideration that is part of the political domain in which the preferences of both the board and the municipal council play a role. It is important in this respect that the municipal council has previously explicitly stated that it is in favour of opening the prostitution zone without registering personal data.

7.1.
In view of the foregoing, the court will no longer discuss the other grounds for appeal of the claimants that related to the registration requirement. The court will now discuss the grounds of the claimants against the conditions imposed to perform sexual services as a street sex worker in the Nijmegen tippelzone.

Is the condition to be allowed to perform sexual services as a street sex worker in the Nijmegen tippelzone in conflict with the Services Directive?

8. The claimants argue that their registration and thus access to the tippelzone is wrongly refused. In this context, they argue, among other things, that the requirement is wrongly imposed that street sex workers must demonstrate that they have worked regularly as a street sex worker in Nijmegen since 1 January 2020 or have made use of the care provision in Nijmegen since that date. This condition is in conflict with the Services Directive.

8.1.
According to the mayor, the Designation Decree only makes it possible for existing street sex workers (who meet the condition) to qualify for registration. For that reason, according to the mayor, there would be no licensing system. In the statement of defence, the mayor also establishes a relationship with the extinction policy, as far as the conditions applied are concerned.

8.2.
This ground for appeal is successful. The condition that street sex workers must demonstrate that they have worked regularly as a street sex worker in Nijmegen since 1 January 2020 or have made use of the care provision in Nijmegen since that date is in conflict with the Services Directive. It is not disputed that offering sexual services is the provision of a service within the meaning of the Services Directive. The Services Directive further defines a licensing scheme as ‘any procedure which requires a service provider or recipient to take steps with a competent authority to obtain a formal or tacit decision on access to or the exercise of a service activity’.13 The application of the condition in the Designation Decree falls under this definition. If the condition is not met, a street sex worker cannot gain access to the streetwalking zone in Nijmegen.

8.2.1.
On the basis of the Services Directive, licensing schemes within the meaning of the Directive must also be based on criteria that prevent the competent authorities from exercising their discretionary powers in an arbitrary manner.14 In addition, these criteria must be justified for ‘compelling reasons of general interest’.15 According to the Services Directive, compellable reasons of general interest are:

‘reasons which have been recognised as such in the case-law of the Court of Justice; including the following grounds: public order, public safety, state security, public health, maintaining the financial balance of the social security system, protection of consumers, recipients of services and employees, fairness of commercial transactions, combating fraud, protection of the environment and the urban environment, animal health, intellectual property, preservation of the national historical and artistic heritage and objectives of social policy and cultural policy.’

8.2.2.
The court finds that the contested condition was apparently imposed in order to give shape to the extinction policy. The board does not want to admit street sex workers who have not previously been registered or have not yet made use of the care offer, so that the tippelzone can be closed in the long term. The extinction policy is therefore based on the board's policy choice to discourage street sex work in Nijmegen. This is not in itself a compelling reason of general interest, such as public order or public health. It is important that it concerns a legal profession. It is not clear why allowing street sex work to ‘die out’ in Nijmegen is a compelling reason of general interest, while on the other hand performing street sex work is permitted. Insofar as the board wanted to argue that the underlying interest lies in the desire to restore public order or public safety in the long term, it has not been sufficiently substantiated that this is a compelling reason. Any effects on public order or safety of applying the condition will only occur in the long term. This does not sufficiently substantiate that there is currently a problem with public order or public safety that justifies imposing the contested condition. In the case of the claimants, the condition must be disregarded due to the lack of motivation that is associated with the Designation Decision.

Conclusion and consequences
9. The appeal of BCW is inadmissible. The appeals of claimants 1 and 2 are well-founded. The other grounds for appeal do not require further discussion. Since it is not disputed that claimants 1 and 2 meet the other conditions in the Designation Decree and therefore only one outcome is possible as a decision on the requests for registration of claimants, the court sees reason to use its authority to provide for the case itself in this case.16

9.1.
The court will therefore annul the decision of 10 July 2023 and revoke the primary decisions of 1 August 2022 and determine that this ruling replaces the annulled contested decision. The court provides for the case itself by rejecting the requests for registration of claimants and determines that they may offer sexual services at the location described in Article 1 of the Designation Decree, in compliance with Article 2 under c, d and e of the Designation Decree.

9.2
Because the court declares the appeal well-founded, the mayor must reimburse claimants 1 and 2 the court fee paid by them. Furthermore, the court, applying article 8:75 of the General Administrative Law Act, orders the mayor to pay the costs of the objection and appeal. The court sets the costs of legal assistance provided on the basis of the Administrative Law Costs Decree for legal assistance provided professionally by a third party at €1,248 for the costs incurred in the objection (1 point for submitting the notice of objection and 1 point for appearing at the hearing, with a value per point of €624 and a weighting factor of 1) and €1,750 for the costs incurred in the appeal (1 point for submitting the notice of appeal and 1 point for appearing at the hearing, with a value per point of €875 and a weighting factor of 1).

Decision
The court:

- declares the appeal inadmissible insofar as it was submitted by BCW;

- declares the appeal well-founded insofar as it was submitted by claimants 1 and 2;

- annuls the contested decision of 10 July 2023;

- revokes the decisions of 1 August 2022;

- rejects the requests for registration of claimants and determines that they may offer sexual services at the location described in Article 1 of the Designation Decree, in compliance with Article 2 under c, d and e of the Designation Decree;

- determines that this ruling replaces the annulled contested decision;

- orders the mayor to reimburse the paid court fee of € 365 to claimants 1 and 2;

- orders the mayor to pay the legal costs of claimants 1 and 2 to an amount of

€ 2,998.

This ruling was made by Mr. M. van Harten, chairman, Mr. W.P.C.G. Derksen and Mr. M.J.M. Verhoeven members, in the presence of S. Voolstra, registrar. The judgment was pronounced in public on

registrar

chair

A copy of this judgment was sent to the parties on:

Information on appeal
A party that disagrees with this judgment may send an appeal to the Administrative Jurisdiction Division of the Council of State explaining why this party disagrees with this judgment. The appeal must be filed within six weeks after the date on which this judgment was sent. If the submitter cannot await the hearing of the appeal because the case is urgent, the submitter may request the provisional relief judge of the Administrative Jurisdiction Division of the Council of State to make an interim provision (a temporary measure).

Appendix: important laws and regulations for this ruling
General Local Regulation
Article 3:19 Street prostitution

1. It is prohibited to stay in or on a public place or on, on or in another place visible from the public place, not being a sex establishment for which a permit has been granted, with the apparent purpose of making oneself available for prostitution or to perform indecent acts in or on a public place if this is clearly done in the context of prostitution.

2. The prohibition in the first paragraph does not apply to or on places and areas designated by the board of mayor and aldermen, if the regulations laid down in that decision are observed; these regulations concern in any case the times at which the prohibition mentioned in the first paragraph does not apply, the age of the prostitute and the location where the finishing must take place.

3. It is prohibited to remain in the places and areas referred to in paragraph 2 in a manner that is a nuisance to others without reasonable purpose, or to pollute them or use them for a purpose other than that for which these areas are intended.

Article 6:5 Transitional provision

1. Permits, exemptions and other decisions taken pursuant to the regulation referred to in Article 6:4, which were in force at the time of entry into force of this regulation and for which this regulation contains corresponding decisions, shall be deemed to be permits, exemptions and other decisions taken pursuant to this regulation.

2. The decisions and regulations listed in the appendix "Conversion table Implementation decisions etc.", taken pursuant to the regulation referred to in article 6:4, are based on the articles of this regulation referred to in the appendix "Conversion table Implementation decisions etc.".

3. Applications for a decision submitted before the entry into force of this regulation will be decided in accordance with this regulation.

Designation decision walking zone
Article 1 designation walking zone

To be designated as roads and areas, referred to in article 3.3.7. paragraph 2 of the General By-law:

the Nieuwe Marktstraat, from the intersection with the Lange Hezelstraat to the physical barrier, halfway along the Nieuwe Marktstraat.

Article 2 regulations

In addition, to be established as regulations, referred to in article 3.3.7. paragraph 2 of the General By-law:

a. the offering of sexual services is reserved exclusively for street sex workers who have registered for that purpose with the mayor of Nijmegen.

b. the registration referred to in the previous paragraph is reserved only for street sex workers who:

• have reached the age of 18;

• can demonstrate that they have worked as a street sex worker in Nijmegen with some regularity since 1 January 2020; or:

• can demonstrate that they have used the care provision in

Nijmegen for street sex workers since 1 January 2020,

c. no street sex work is performed by persons in conflict with the provisions of or pursuant to the Foreign Nationals Employment Act or the Aliens Act 2000;

d. the designated location may only be used for street sex work from 8 p.m. to 2 a.m. - with the exception of: 31 December from 8 p.m. to 1 January to 2 a.m.;

e. the so-called finishing must take place in the finishing location set up for that purpose on Nieuwe Marktstraat.

General Data Protection Regulation
Article 9

Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation shall be prohibited.

2. Paragraph 1 shall not apply if one of the following conditions is met:

a. (a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provides that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

(b) processing is necessary for the purposes of carrying out obligations and exercising specific rights of the controller or of the data subject in the field of employment law, social security and social protection law, insofar as it is authorised by Union or Member State law or by a collective agreement in accordance with Member State law which provides for appropriate safeguards for the fundamental rights and interests of the data subject;

(c) processing is necessary in order to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent;

(d) processing is carried out in the course of its legitimate activities and subject to appropriate safeguards by a foundation, association or other non-profit body with a political, philosophical, religious or trade union objective and on condition that the processing relates solely to the members or former members of the body or to persons who have regular contact with it in connection with its purposes, and that the personal data are not disclosed outside that body without the data subjects' consent;

(e) the processing relates to personal data which have manifestly been made public by the data subject;

(f) processing is necessary for the establishment, exercise or defence of legal claims or when courts are acting in their judicial capacity;

(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to protection of personal data and provide for suitable and specific measures to safeguard the fundamental rights and interests of the data subject;

(h) processing is necessary for the purposes of preventive or occupational medicine, the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services, on the basis of Union or Member State law or in accordance with contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

i. (i) processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;

(j) processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to protection of personal data and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.

3. The personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by or under the responsibility of a professional subject to an obligation of professional secrecy under Union or Member State law or rules established by national competent authorities, or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent authorities.

4. Member States may maintain or introduce additional conditions, including restrictions, with regard to the processing of genetic data, biometric data or data concerning health.

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

Article 10

Authorisation conditions

1. Authorisation schemes shall be based on criteria which prevent competent authorities from exercising their discretion in an arbitrary manner.

2. The criteria referred to in paragraph 1 shall be:

a. (a) non-discriminatory;

(b) justified by an overriding reason of general interest;

(c) proportionate to that reason of general interest;

(d) clear and unambiguous;

(e) objective;

(f) publicly announced in advance;

(g) transparent and accessible.

3. The conditions for authorisation of a new establishment may not duplicate equivalent or, having regard to their purpose, substantially similar requirements and controls to which the service provider is already subject in another or the same Member State. The contact points referred to in Article 28(2) and the service provider shall assist the competent authority by providing the necessary information on these requirements.

4. The authorisation shall grant the service provider the right to access or exercise the service activity throughout the national territory, including by setting up agencies, subsidiaries, offices or branches, unless authorisation for each individual establishment or a restriction of authorisation to a specific part of the territory is justified by overriding reasons of general interest.

5. The authorisation shall be granted once it has been established, following an appropriate examination, that the conditions for authorisation are met.

6. Except in the case of the granting of a licence, every decision of the competent authorities, including the refusal or withdrawal of a licence, shall state the reasons on which it is based and shall be open to challenge before the courts or other bodies providing for appeal.

7. This Article shall be without prejudice to the allocation of powers, at local or regional level, of the authorities granting licences in the Member State concerned.