EU Presidency defies EU Treaties, ECJ case law and Council Legal Service to put the case for private security
In December of last year, the incoming Spanish presidency of the European Union presented a proposal to establish a "network of contact points of authorities with responsibility for private security". Then, after successive drafts of the proposal in January and February, the EU Council Legal Service delivered an opinion clearly opposing any Council Decision on the grounds that it "encroached upon the sphere of Community competence and was not feasible under Article 47 of the Treaty on European Union (TEU)". This opinion has been quickly countered by the legal service of Spanish State Secretariat for Legal Affairs and the Spanish presidency is determined to press ahead with the proposal. Unable to address the powerful legal argument, it has instead put the case that private security is now inextricable linked to public security provided by the state, and therefore a matter for the EU Justice and Home Affairs Council.
Although not listed in the "Action Plan on terrorism" there was never any proposal considered by the Council of the European Union before 13 December 2001. Moreover, in a number of related issues the creation of a "network of contact points of authorities with responsibility for private security" is seen to be part of the EU's response to 11 September.
In the UK the "Private Security Industry Act 2001" will lead to the creation of the "Security Industry Authority" in 2003. This will work to improve standards and the licensing of companies, but:
"Since the Security Industry Authority will not license security firms on a compulsory basis, the UK will not have the ability to supply the network envisaged in this proposal with comprehensive company data" (Home Office Explanatory Memorandum, 15.2.2002)
In the UK there are three categories of private security companies: i) those concerned with personal and physical security (property), agencies like Group 4 who carry out quasi-state roles (transporting people from prison to court and running refugee detention centres) and private military companies (much favoured by the UK Defence and Foreign Office to supplement overseas military operations - what some would call "mercenaries"). All are private companies run for profit.
The Spanish EU Presidency proposal discussed below raises the idea that such companies form part of the network of national security agencies (like MI5, MI6 and GCHQ in the UK) of EU states. Certainly in the UK over the years official agencies have been known to use private security companies for operations which they do not want to be associated with (the "plausible denial" philosophy).
The proposed network
The most recent draft of the proposed Council Decision (6462/02) would see a "network of contact points of national authorities responsible for supervision of private security" created with the following objectives:
- facilitating coordination and cooperation between the various national bodies;
- exchanging information on the arrangements for regulating private security in each Member State and in the candidate countries;
- exchanging experience in the handling of information supplied by private security firms which is material to public security;
- establishing best practices and, in the long term, examining the possibility of approximating arrangements and best practices.
The network would have its own internet site offering (restricted):
- access to all the legislation of Member States and candidate countries on private security;
- permanent contact between the national authorities responsible for private security;
- exchange of experience on the efficiency of security systems, alarm centres and transport and deposit of funds, works of art, etc.;
- knowledge of the firms operating in the sector and of their particulars, activities, geographical area of activity and staff training.
It is up to each member state to designate its "contact point" within the network although it is unclear from the proposal to what extent representatives of the private security industry would participate. A number of member states have no central authority responsible for supervising private security and it is also unclear who these states could be expected to appoint. The are no provisions for public accountability, save for an annual report to be submitted to the Council.
The legal arguments
The proposal cites Articles 29 [combating crime], 30(1)(a) [cooperation between relevant authorities] and 34(2)(c) [Council Decision as relevant legal instrument] of the Treaty on European Union (TEU) as the legal bases for the network. However, the proposal ignores a number of provisions in the EC Treaty (TEC), and, as the EU Council Legal Service argues, Article 47 TEU, which states quite simply that Community law prevails over the law of the Union.
Generally, EU Legal Service opinions are not released to the public, as is the case in this matter, but the Spanish presidency summarises their argument as follows (7245/02):
- The Court of Justice has described private security as an economic activity subject to the freedom of movement provisions of the Treaty. It has ruled that the derogations from the freedom of movement of persons under Article 39(4) of the TEC (employment in the public service) and from the freedom of establishment under Article 45 of the TEC (exercise of official authority) do not apply to the activity of private security undertakings and their employees, and that such activity does not in itself constitute a threat to public policy (Articles 39(3) and 46(1) of the TEC).
- Article 44(1) of the TEC empowers the Community to harmonise establishment in a particular economic activity by means of directives. Under Article 44(2)(b) of the TEC, the Council and the Commission are expressly entrusted with ensuring "close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Community of the various activities concerned". Access to the private security business has not been harmonised so far but there is no reason to rule out the possibility that it may be harmonised in the future.
- While only indirectly envisaging such harmonisation, the draft Decision provides for cooperation, coordination and exchange of information in relation to activities of the private security sector involving a cross-border element. Since cooperation of this kind would contribute to achieving freedom of establishment and freedom to provide services in the sector, it could and should take place on the basis of Articles 44 or 52 of the TEC.
- the initiative would appear not to come under Title VI of the TEU within the meaning of Article 30(1)(a) of the TEU.
It can be assumed that the Council Legal Service opinion refers to the three separate judgments of the European Court of Justice on this issue, against Spain, Belgium and Italy (see sources below). Steve Peers (Reader in Law, Essex University) comments:
"Some of the comments of the Spanish delegation are clearly ignoring the ruling of the Court against Spain and the others".
Legal order vs. neo-liberal policy
The Spanish Presidency and its legal service ignore Article 47 TEU and gloss over the case-law, choosing instead to argue that private security companies have an integral role in providing public security and that the basic economics of supply and demand mean that they are now:
"part of the essential nucleus of exclusive competence attributed to the State in security matters"
Unable to reconcile private security's place in the market with policing and public security's place in the public sector, the presidency document argues that given the 'cross-over', the state's "monopoly on security" should take precedence over Community law:
"The question we should be asking ourselves is whether private security as an activity is autonomous and remains within the scope of the private sector or, alternatively, whether it affects the public sector, i.e. whether its fields of action have any influence on public order administration
Is private security an integral part of security as a whole? This would seem to be the case, as demonstrated by the boom in the provision of security services by private undertakings, which has resulted in the private security sector's functional integration in the State's monopoly of security in countries like Spain, Belgium, France, the United Kingdom and Italy.
It must not be forgotten that security is one of the main pillars of co-existence and the reason why societies organise themselves politically. Guaranteeing security is therefore central to the very existence of the modern State and, as such, is an activity exercised by the public authorities as a monopoly.
If security in the abstract is the exclusive competence of the State and if security is understood to mean the result of the activities of public security services plus the result of private security activities, the logical conclusion is that private security activities are also the competence of the State, i.e. of the public security authorities."
On the "need" for private security, the presidency makes two further observations:
"1. [there is] disequilibrium between the supply of security services by States governed by the rule of law, which are subject to budgetary constraints, and the demand for protection from businesses and individuals
2 predominant crime prevention philosophy places more stress on "defensible space" and thus on "situation prevention". These are concepts which, on the one hand, have enabled businesses, sellers and installers of protection services to present their private economic interests (doing business) as being in the general interest of society and, on the other hand, have enabled the public authorities to make a virtue of necessity, as shown by the fact that targets considered particularly vulnerable to crime (e.g. banks, jewellers', chemists', etc) are frequently required to protect themselves "privately"."
EU, EC or shared competence?
The presidency concludes it argument by suggesting that competence for private security is in fact shared between the EU and EC, with the former responsible for public policy aspects and the latter for the private enterprise issues:
"What is involved is, a sense [sic], a case of shared competence between the Community and the Member States. The Community is competent in relation to the right of establishment and freedom to provide services (access, setting up, management, opening, contracting of activities). The Member States are competent in relation to the exercising and control of security, including the control of private security activities"
The fact remains that the proposal is legally incompatible with the Treaties and a number of rulings in the ECJ. From a civil liberties perspective, the key issues of democratic control of security policy, keeping policing in the public sector and accountability of private companies involved in public security remain a largely "national" issue. However, it is almost certain, given the current structure of the EU, that a private security network would serve the interests of the private companies and interior ministries ahead of supposed liberal democratic values of democracy and accountability. A number of governments are likely to join Spain in arguing that "national security" and "public policy" prevail - particularly in the "current climate" - and they might well succeed.
Tony Bunyan, Statewatch editor commented:
"The idea that private companies, run for profit, should be accorded an official status in the EU is highly dangerous. In most EU countries they are not regulated or accountable for their actions and there is a real danger that police and internal security agencies will use their services to conduct operations which they themselves do not want to be associated with"
Full-text background documentation: 15206/01 (pdf) 5135/02 (pdf) 7245/02 (pdf)
Sources: Network of contact points of national authorities with responsibility for private security, 15206/01, 13.12.01; Initiative of the Kingdom of Spain on the setting up of a Network of contact points of national authorities responsible for private security, 5135/02, 29.1.02; Network of contact points of national authorities responsible for supervision of private security - Text as it stands following discussions in the Police Cooperation Working Party (5 and 6 February 2002), 6462/02, 21.2.02; Network of contact points of authorities with responsibility for private security, 7245/02, 18.3.02; ECJ rulings: C-114/97 Commission v Spain, C-355/98 Commission v Belgium, C-283/99 Commission v Italy.
Story filed 18.4.02, revised 21.4.02
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