EU Influence on Private Security & Research: A Legal Overview
The Influence of the European Union on Safety and Private Security Research
EU Law and Freedoms
EU law establishes a range of freedoms designed to ensure a common market among member countries. These freedoms, however, can be subject to limitations for reasons of public order, public health, and safety.
Key Articles of the Treaty on European Union:
- Art. 39: Free movement of workers. Abolition of discrimination based on nationality in relation to employment, remuneration, and working conditions. This article doesn’t apply to public administration.
- Art. 43: Prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State. This includes the opening of agencies, branches, or subsidiaries.
- Art. 46: Exception to Art. 43: The right of establishment doesn’t apply to the fields of security, public order, and public safety.
- Art. 49: Prohibition of restrictions on the free provision of services. This right takes precedence over the legislation of each Member State.
Incompatibility with National Laws
There have been cases in the field of private security where incompatibility with national laws concerning Community law has been questioned. The European Court of Justice recognizes the possibility of setting restrictions on these freedoms under specific conditions. However, these exceptions must be interpreted restrictively and should be limited to activities directly and specifically related to the exercise of public power.
Administrative Powers and Authorization in Private Security Research
Administrative Powers
Administrative powers granted to authorities are limited and subject to checks to ensure businesses and private security personnel meet legal requirements. These powers can be categorized into two types:
- Regulatory: The decision on a request is limited to verifying compliance with requirements. There is no room for discretion.
- Discretionary: The administration has the ability to choose different solutions within legal boundaries. For example, authorities have a certain margin of discretion when granting weapons licenses.
Authority and Empowerment
The content covered for accessing the status of private security personnel is regulated, while aspects like weapons licensing involve discretionary powers within legal limits. Decisions made under discretionary power must be justified and reasoned to avoid arbitrariness.
Control and Inspection
The administration verifies whether training centers, installations, activities, and log books conform to the rules. Inspections can be conducted before and during the operation of an activity. This justifies the payment of fees for verification and data checks.
Permanent Presence in Private Security Activities
- In alarm situations or interventions, private security personnel are required to notify or request the presence of law enforcement for assistance and collaboration.
- Communication of security-relevant activities is crucial, necessitating a close relationship between public and private security forces.
Planning and Coordination of Administrative Intervention
Planning and coordination are achieved through specific schemes where police set criteria for interpreting legislation or propose amendments. This is done through sectoral committees, joint central committees, and other collaborative platforms. The goal is to satisfy the general interest while considering the rights and interests of all parties involved in private security, including companies, workers, and clients.
Administrative Sanction Procedure for Violations of Private Security Law
Principles of the Sanctioning Procedure
The sanctioning procedure is regulated by Articles 134 to 138 of Act 30/92, Chapter II. While not fully regulated, there are guidelines to be followed. The Private Security Law (LSP) provides specific rules, including provisional or interim measures, such as temporarily suspending a security license.
Stages of the Disciplinary Procedure
The Rules of Procedure for the exercise of sanctioning powers, approved by Royal Decree 1398/1993 of 04.08, establish three essential phases for processing disciplinary proceedings:
- Introduction: Initiation of the procedure by the competent body, appointment of the secretary, instructor, and responsible person, identification of the facts and offense committed, and determination of the applicable penalty. This stage may also include interim measures.
- Instruction: The accused can offer evidence and make allegations. The instructor may open a trial to examine the evidence. A report is made to ensure the instructor has acted correctly and to unify criteria across different territorial areas. The instructor then makes a proposal based on the findings.
- Resolution: The competent body issues a resolution, imposing a sanction or determining no disciplinary responsibility. This decision can be appealed to the Ministry of Interior and subsequently to the courts.
This overview provides a general understanding of the EU’s influence on private security and research, highlighting key legal aspects and procedures related to administrative powers and sanctions.