International Journal on Criminology Volume 5, Number 2, Winter 2017/2018 | Page 16

Contractual Issues in Private Security
Two distinctive features of public procurement underpin this rate of 25%
of security demand. On the one hand, public demand is very diverse, including
contracts signed by central or local state bodies, local authorities, and public institutions
as varied as museums, universities, hospitals, the central public purchasing
office (UGAP), etc.
To speak of the public client in the singular, then, and to try to develop a
sort of public purchasing doctrine, is to some degree a fool’s errand. On the other
hand, however, all public procurement contracts must comply with the Public
Procurement Code: this means that the only public purchasing doctrine for private
security services is a legal one, whereas the doctrine should also incorporate
political and economic aspects. Each provider knows that the Public Procurement
Code drives prices down.
Private demand is even more diverse, ranging from corporate clients, which
tend to use a small number of providers selected beforehand, to individuals, who
rely heavily on electronic or digital home monitoring services, and to SMEs, jewelers,
nightclubs, etc.
These two extremes of private demand—corporate clients and individual
clients—are those that typically shape trends on the supply side, in two opposing
directions. The demand for global solutions, catered for by facilities management,
where a single contract covered a whole range of services (cleaning, safety, and
maintenance), is a thing of the past. Book VI of the CSI prohibits the “private
security” part of these contracts, which must be signed by a private security provider
who meets the exclusivity principle. Is this position sustainable indefinitely?
The exclusivity principle is not, in any case, wholly respected within Europe more
broadly.
More recently, the phenomenon of uberisation, where service provision
and contracts are personalized and individualized, appeared in France last year.
The first seminar on the phenomenon was held in November 2016, on CNAPS
initiative. The uberization of security services means the use of a digital platform
(a smartphone app) to establish a geolocalized connection between private security
agents and clients. There is a consensus both that this trend is inevitable (potentially
affecting 10%–20% of agents), and that the whole phenomenon must be
brought within the remit of Book VI of the Security Code. Uberization also raises
the question of individual entrepreneurship once more, as service contracts are
replaced by work contracts, bringing the risk of disguised salaried work. Taken in
the broadest sense, the contractual issue is without doubt the chief topic to address
in the future, and the CNAPS counts on the Ministry of the Interior’s support to
make progress in this area.
We should emphasize at this point that Book VI of the CSI and, before that,
the law of July 12, 1983 have never been interpreted through the lens of commercial,
business, or competition law—that is, from an economic point of view. After
a period of administrative regulation, we now face issues of economic regulation,
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