The law 23/1992 of 30 July, on private security regulates the provision by private, natural or legal, people in surveillance and security services of persons or goods, which shall be regarded as complementary and subordinate activities regarding public safety.
For the provision of these services, both companies and security personnel must meet a series of requirements, including the requirement for security companies to adopt corporate shape, having a share capital the minimum amount to be determined, that they have certain human and material resources and to provide certain guarantees to cater to the fulfilment of the obligations arising from its operation. Also, in what refers to security personnel, the regulations in force requires obtaining a qualification with the character of administrative authorisation, for which purpose the fulfillment of certain requirements both personal and academic must demonstrate.
Such requirements is based on the nature of the functions to be developed, in both complementary and subordinate public security, requires the establishment of a series of controls rigorous to ensure the provision of appropriate services by solvent companies, qualified, and equipped with the necessary and appropriate means, and thus has made it clear the Spanish Government the European Commission repeatedly.
This, however, the Court of Justice of the communities European, in judgment of 26 January 2006, has analysed the compatibility of the rules introduced by law 23/1992 of 30 July, with Community law and has considered that the public order exception does not cover in this case exclusion from freedom of establishment and of provision of services within the community provided for in articles 43 and 49 of its constitutive treaty.
In summary, the requirements posed by virtue of the aforementioned judgment, restrictions on freedom of establishment and the free provision of services within the framework of the European Union, are as follows: first, understand the Court to the fact that, almost in all cases, private security companies should be legal persons implies a restriction of the right of establishment which is not justified for reasons of public security There are other less restrictive means to achieve the objective of the protection of the recipients of the benefits of private security, such as the deposit of bail or the subscription of an insurance contract.
With regard to the Constitution of guarantees, says the Court that rules Spanish enjuiciada requires the deposit of a bond in a Spanish organization, the General deposit box, to respond to any responsibilities or pay fines, without taking into account the guarantees constituted, where applicable, in the Member State of origin.
In terms of the provisions setting a minimal template for security companies, the Court understands that they should be analysed as an obstacle to freedom of establishment and the free provision of services, insofar as they make more costly the establishment of branches or subsidiaries in Spain and discourage companies from foreign private security offer their services in the Spanish market. As an exception, it is considered the Court that the requirement of a minimum staff in companies engaged in the transportation and distribution of explosives, is justified.
So it refers to the requirement that private security personnel are in possession of a specific administrative authorisation or qualification, issued by the Spanish authorities, said the statement that the Spanish legislation does not provide the possibility of taking into consideration the requirements that have already been accredited by each of the members of the staff of these companies in their Member State of origin.
Finally, it indicates the judgment that, in relation to the private detective profession, should be made the policy changes necessary to ensure the mutual recognition of professional qualifications for the practice of this activity.
As a result of the ruling, given that the execution of this type of sentences is not carried out by the Court itself, but it implies positive action by the Member State in question, is this who, pursuant to article 228 of the Treaty of the European Community, is obliged to take the necessary measures for the execution of the judgment referred to in their own terms.
Follow-up, of the doctrine of the European Court of Justice about the way in which their sentences, proper compliance should be possible compatibility between a national standard and a Community rule, even direct effect, should be removed definitively by means of binding domestic provisions having the same legal value as those which must be amended.
Therefore, the articles of the law 23/1992 of 30 July, affected by the judgment in question, must be reformed by a rule with force of law, to be satisfied in this case the proviso in article 86 of the Constitution, concerning the existence of a position of extraordinary and urgent need, so that Royal Decree-law instrument can be used for this purpose.
Indeed, there is the existence of an enabling budget, referred to in the jurisprudence of the Constitutional Court, in which the origin of the standard need has to be of such a nature that can not be answered by way of the legislative procedure of urgency, because the demand for its immediacy. In this case, we have an unexpected need, caused by the failure of the Court of Justice of the European communities. This sentence is in itself an obligation of compliance that can not expand in time and that should conclude in the shortest possible time.
Therefore, it is necessary to immediate execution; on the one hand, by the previously aforementioned obligation, and, secondly, to prevent the emergence of in fact ambiguous situations, which injured the free competition in the sector.
Complementarily, in the present Royal Decree-law is equally provided the obligation to make those adaptations of regulatory nature necessary for the full implementation of the content of the judgment. Such changes, requiring prior legal empowerment that provide precisely the changes that are incorporated in the law 23/1992 of 30 July, private security, with this Royal Decree-Law will be realized in an immediate amendment to the regulation of private security, approved by Royal Decree 2364 / 1994, of 9 December.
Virtue, in use of the authorisation granted by article 86 of the Constitution, on the proposal of the Minister of the Interior and after deliberation by the Council of Ministers at its meeting of September 14, 2007, D I S P O N G O: only article. Modification of law 23/1992 of 30 July, private security.
The law 23/1992 of 30 July, private security, is hereby amended as follows: one. Article 1 is drawn up in the following way: «article 1.
1. this law is to regulate the provision by natural persons or legal private, surveillance and security services of persons or goods, which shall be regarded as complementary and subordinate activities regarding public safety.
2. for the purposes of this Act, may only private security activities and services of this nature, security companies and private security, which will be integrated by security guards, the guards of explosives, heads of security, security managers, private bodyguards, private field guards, the guardians of hunting the maritime Rangers and private detectives.
3. activities and private security services will be provided with absolute respect to the Constitution and subject to provisions of this law and in the rest of the legal system. Private security personnel will stand in their actions by the principles of integrity and dignity; protection and proper treatment of persons, avoiding abuse, arbitrariness and violence and to act with consistency and proportionality in the use of his powers and the means available.
4. companies and private security personnel will have a special obligation of auxiliary forces and security bodies in the exercise of their functions, lend their collaboration and follow their instructions with regard to persons, property, establishments or vehicles whose protection, surveillance or custody are responsible."
Two. Article 7 is drawn up in the following way: «article 7.
1. the provision of private security services referred to in article 5 of this law will be held by security companies, which may take the form of physical person or legal entity.
2 for the provision of services and private security activities referred to in this law, security companies must obtain timely administrative authorization for the procedure to be determined by regulation, to which effect should meet the following requirements: to) have exclusive social purpose all or any of the services or activities referred to in article 5.
b) have the nationality of a Member State of the European Union or a State party to the agreement on the European economic area.
(c) have the human resources, training, financial, materials and technicians to be determined by regulation. In particular, when the provision of services for those who need the use of weapons, should adopt measures to ensure proper custody, use and operation, in the form determined.
(d) to sign a contract of civil liability insurance or provide other financial guarantees in the amount and with the conditions determined by law.
(e) constitute the bail determined by regulation available to the Spanish authorities to attend to the responsibilities arising from the operation of the company for infringements to the regulation of private security.
3 a the effects provided for in the letters d) and e) of paragraph 2, shall take into account the requirements already in the Member State of origin in relation to the subscription of the contract of insurance of civil liability or other financial guarantees, as well as with regard to the Constitution of sureties.
4. security companies, both if members of the European Union or of States are as legal, authorized individuals for the provision of private security services in accordance with the rules of any of the States with parties in the agreement on the European economic area, will have to register in the register of companies of security that takes in the Ministry of the Interior to which end they must prove their status as security firms and the fulfilment of the requirements established in this law, in the form determined by law.
5. the loss of any of the listed requirements will result in the cancellation of the registration, which shall be agreed upon by the Minister of the Interior, on reasoned judgment with the interested audience.
6. without prejudice to the provisions of the preceding paragraphs, companies of security which have as their sole object the installation or maintenance of equipment, devices and security systems, as well as advice and planning of security activities, you can exempt them from compliance with any of the requirements included in this article, when so determined by law.»
3. Article 9 is drawn up in the following way: «article 9.
1. when security companies shall take the form of legal entity, they should meet the requirements established in the commercial law.
2. companies referred to in the preceding paragraph shall be obliged to inform the Ministry of the Interior of any change that occurs in the ownership of the shares or participations and which affect their social capital, within fifteen days of its modification.
3 likewise, equal time, they must communicate any modification of its statutes and any variation which befalls in the personal composition of the organs of administration and management of the companies.»
Four. Article 10 is drawn up in the following way: «article 10.
1. for the exercise of the functions of private security, the staff referred to in article 1, paragraph 2, of this law, must previously obtain the corresponding authorization from the Ministry of the Interior, with the character of administrative authorisation, on record that instruct at the request of the person concerned.
2 for obtaining the qualification indicated in the previous section, applicants must meet the following requirements: to) have the nationality of one of the States members of the European Union or a State party to the agreement on the European economic area.
(b) be of age and not, where appropriate, the age to be determined by regulation.
(c) possess physical fitness and mental capacity necessary for the exercise of functions.
(d) overcome the appropriate tests that certify the knowledge and skills needed for the exercise of their functions.
(e) lack of a criminal record.
(f) not having been sanctioned in two or four previous years for serious or very serious violation, respectively, on private security.
(g) not been separated from service in the armed forces, forces and security bodies, nor exercising control functions at institutions, services or actions of security, surveillance or investigation private, nor its staff or media, as members of the forces and security corps, in the previous two years.
(h) not have been convicted of unlawful interference in the field of protection of the right to honour, to personal and family privacy and self-image, of the secret communications or other fundamental rights, in the five years preceding the application.
3. nationals of Member States of the European Union or of States party to the agreement on the European economic area, whose habilitation or professional qualification has been obtained in one of these States for the performance of the functions of private security in it, will be able to carry out activities or provide private security services in Spain, always that, subject to verification of the Ministry of the Interior (, certifying that they meet the following requirements: to) own any qualification, qualification or certificate issued by the competent authorities of any Member State or State party to the agreement on the European economic area, authorizing them for the exercise of functions of private security in it.
(b) certify the knowledge, training and skills equivalent to those required in Spain for the practice of professions related to private security.
(c) have knowledge of Spanish language sufficient for the normal performance of the functions of private security.
d) laid down in the letters b, e, f, g and h, of paragraph 2 of this article.
4. the lack or inadequacy of knowledge or skills necessary for the exercise of the activities of private security in Spain of nationals of Member States of the European Union or of States party to the agreement on the European economic area, can be supplemented by compensatory measures provided for in the existing legislation on the recognition of professional qualifications.
5. the loss of any of the listed requirements will result in cancellation of the authorization, which will be agreed upon by the Minister of the Interior, on reasoned judgment with the interested audience.
6 the downtime security by more than two years will require its submission to new tests to perform functions which are you own.»
Sole additional provision. Changes in the regulation of private detective activity.
In the period of two months from the entry into force of this Royal Decree, will take place the regulatory amendments necessary to ensure the mutual recognition of professional qualifications for the practice of private detective activity.
Sole repeal provision. Repealing efficiency.
1 they are hereby repealed many provisions of equal or lower rank they oppose, contradict or are inconsistent with the provisions of this Royal Decree-law.
2. However, the provisions contained in the regulation of private security, approved by Royal Decree 2364 / 1994, of 9 December, that require, by virtue of the provisions of this Royal Decree, a subsequent modification, continue application until it is appropriate to such statutory adaptation.
3. regulatory amendments referred to in the preceding paragraph shall be taken within the period of two months from the entry into force of this Royal Decree.
Sole final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, on September 14, 2007.
JUAN CARLOS R.
The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO