The limited role of private security in the public space

Paris, France, March 2022 ­–  The security of public spaces relies on multiple actors and professions from both the public and the private sector, which all have different professional cultures, operating modes and purposes. This means that co-producing security is not only the logical thing to do but also what needs to be done. As such, it can contribute to strengthening the collective governance of urban security. Strengthening such a security continuum is key for European cities, but there are a number of obstacles to take into account.

In this article, Professor of Public Law and associate researcher for PACTESUR, examines the French legislation and jurisprudence on the role of private security in public spaces.

The security continuum put forth by the French authorities, namely the uninterrupted chain between the State’s law enforcement agencies (national police and gendarmerie), municipal police forces and private security companies can only strengthen the role of the latter.

In the 1970s, private security had a bad reputation and the image of militias used by business bosses to break social movements.

In the 1980s, the political class came to the understanding that private security could support public law enforcement. It appeared further justified at the time because of budgetary constraints, which led the State to transfer to local and regional authorities responsibilities that are not of its sole competence. However, the constitutional ‘identity’ of France states that the general administrative police competences inherent to public law enforcement cannot be transferred to private entities (Constitutional Council, 15 October 2021, n° 2021-940 QPC, Société Air France).

As such, the presence of private security in public spaces is regulated and limited by jurisprudence. Constitutional judges censored provisions that allowed to delegate general administrative police competences to a private entity by handing them the management of a video surveillance system on behalf of a public entity and the authorisation to watch images taken on public thoroughfares (Constitutional Council, 10 March 2011, n° 2011-625, Loi d’orientation et de programmation pour la performance de la sécurité intérieure).

This principle of banning private security officers from intervening in the public domain has been recalled on several occasions. A locality is not authorised to hand over to a private security company the surveillance of public areas which are under the jurisdiction of the municipal police (Council of State, 29 December 1997, commune of Ostricourt). Another commune is denied the right to allow individual persons to carry out surveillance of public thoroughfares or public buildings (Montpellier Administrative Court, 5 July 2016, Prefect of Hérault). The same goes for a contract with a private company to patrol and monitor the whole territory of a commune (Versailles Administrative Court, 17 January 1986, Commissioner of the French Republic, Seine et Marne).

Does this mean that all public spaces are no-go zones for private security?

The answer is no: within the limits of constitutional law, it is possible in France for private security to intervene, but in a strictly limited way. The Prefect can authorize certain missions, including ‘itinerant’ ones, of surveillance against robberies, vandalism and offences against properties that are guarded by private security, as well as for the prevention of terrorist attacks (art. L. 613-1 of the Internal Security Code, ISC). Private security officers also intervene for the security of public or sport events where access is controlled, for example with the inspection of bags and personal search, provided the person agrees and the process is under the jurisdiction of a judicial police officer (police judiciaire).

The same goes with the protection perimeters defined by the Prefect in case of a terrorist threat (art. L. 226-1 ISC). The Law of 26 February 1996 already authorised private operators to control passengers and luggage at airports, always under the control of a Judicial Police Officer.

The population rarely object to such private interventions in public spaces. When they host a large event, local authorities call on both the municipal police and private security companies. The State also uses private security companies for the surveillance of public buildings, such as courts of justice. However, in France, the State always has supremacy. For example, in Nice, during the Carnival or the European championship of football, the municipality works in close cooperation with the national police (hence the Prefect) and private security companies to protect public spaces. This French model is also applied in Spain with its national police, municipal police forces and regional forces as in Catalonia and the Basque Country.

This article was edited for clarity and length. The opinions expressed herein are those of the author only and do not reflect the opinion of the Consortium or of the European Commission.  

About the author:

Christian Vallar holds a Doctorate in Law. He is Professor of Public Law at the University of Côte d’Azur, Honorary Dean of the Faculty of Law and Political Science, Director of the Research Centre on Administrative, Constitutional, Financial and Fiscal Law (Centre d’études et de recherche en droit administratif, constitutionnel, financier et fiscal). He is also Director of the Internal Security Master’s, Defence Referent at the University, member of the editorial committee of the review of the Institute of Higher Studies of the Ministry of the Interior (Institut des Hautes Études du ministère de l’Intérieur). He is also a Gendarmerie Colonel (in the réserve citoyenne). He has been a member of the PACTESUR Advisory Committee of Experts since 2019.