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EU Presidency defies EU Treaties, ECJ case law and Council Legal Service to put the case for private security

01 April 2002

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 wh