Facts
The complainant, a Romanian national, applied to the competent authority for a short-term residence permit for the purpose of gainful employment as a prostitute in a club in Switzerland. The club had submitted the application, but failed to demonstrate that no domestic workers could be found for the activity in question. The lower court rejected the application, as the complainant was considered a dependent employee and thus subject to the permit requirement.
The complainant applied to the Federal Court to overturn the lower court's decision and to establish that she was an independent gainful employee. She argued that she carried out her activity in the club independently and was not dependent on the club management.
Considerations
The Federal Court rejected the complaint and confirmed the lower court's decision. It held that the complainant was to be considered a dependent employee, as she carried out her activity in the club under the supervision and control of the club management. The court relied on the case law of the ECJ, according to which a person is considered an employee if they are in a relationship of subordination to an employer and perform actual and genuine work for that employer.
The court further held that the complainant did not carry out her activity in the club independently, as she was bound by the instructions of the club management and her working conditions and remuneration depended on it.…