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06 February 2013
On December 13 2012 the German Parliament approved new rules on the use of private maritime security companies on German flagged vessels to fight piracy.(1) The legislation was introduced as the former legal framework was regarded as inadequate.
Under the former legal framework, German shipowners were allowed to employ private maritime security companies to protect their German flagged vessels. German private maritime security companies were generally allowed to render security services onboard German flagged vessel as long as they fulfilled certain legal provisions.(2)
A German maritime security company must possess a licence in accordance with Article 34(a) of the Trade Law. To obtain a licence, a private maritime security company must satisfy three requirements:
Generally, a company is regarded as trustworthy if the persons behind it have not committed any criminal offence.
A company enerally possesses the necessary funds or securities in the sense of Article 34(a) if it has access to €5,000, plus a further €1,500 for each full-time employee.
A certificate from the Chamber of Commerce is obtained only by attending a course at which the regulatory framework - with which security service providers must comply - is outlined. The applicant is not officially tested afterwards. The only exception is in the case of a security company that provides special security services in public areas, shops or nightclubs. As a maritime security company does not render such services, no test is required in order to obtain a licence.
If the three requirements are met, the applicant has a legal title to obtain a licence from the relevant trade office. Once the licence has been granted, the security service company is obliged to maintain liability insurance covering:
The licence, according to Article 34(a) of the Trade Law, does not include the right to render security services with armed guards. To be legally in a position to render security services with armed guards a further licence from the respective local public weapon office in charge is necessary. As for the licensing of security companies, Article 28 of the Weapons Act contains a special rule. However, a licence, according to the Weapons Act, relates only to weapons that do not fall under the War Weapons Control Act. For example, therefore, a private maritime security company cannot provide security services with machine guns, as these are governed by the War Weapons Control Act.
According to the new rules, Article 34(a)(1) to (4) of the Trade Law is no longer applicable to the licensing of private maritime security companies. Only Article 34(a)(5) - which contains a general provision on the legal framework with which security services must comply when providing their services - is still of relevance. However, licensing will be regulated under Article 31 of the revised Trade Law, and from August 1 2013 a private maritime security company will need a licence according to the new scheme.
The new scheme is far more demanding than its predecessor. A company must now outline its whole organisation and procedures in order to demonstrate its suitability to provide services. In particular, it must demonstrate how it will ensure the suitability and reliability of its directors and employees. If a foreign maritime security company is applying for a licence, the suitability and reliability of the German branch manager and the guard employed on German flagged vessel must be outlined.
The company must also submit a certificate of insurance.
Both of these requirements will further be regulated by a special act that has not yet been prepared. The act will regulate in detail the organisation and procedures a maritime security company must implement. Further, the act will contain a provision on the period of validity of a licence (it is planned that the licence must be renewed every two years). Above that, the act will also require the maritime security company to report to the public office in charge of operations and other events, such as a change in directors or branch managers. Finally, the act will contain provisions on the acceptability of foreign licences (licences issued in EU member states will be accepted outright and licences issued in non-EU members will be accepted if they pass a comparability test).
The estimated fee for the initial licensing is expected to be between €8,000 and €16,000.
Licensing will no longer be undertaken by the relevant trade office, but by the Federal Office of Economics and Export Control, which will be supported by the federal police. The federal police is experienced in accrediting private security companies because of its responsibility for the election and supervision of private companies in the area of airport security.
Besides the outlined new Article 31 of the revised Trade Law and the special act hereto, a new special provision (Article 28(a)) on the licensing of private maritime security services will be introduced into the Weapons Act. However, unlike under the existing scheme, the licensing for private maritime security companies in the respect of the licence to transport and carry weapons will not be undertaken by the respective local public weapon office in charge, but instead by the weapon office of the Free and Hanseatic City of Hamburg, which must work together with the respective local public weapon office in charge of the applicant.
While German shipowners may already employ private maritime security companies onboard their German flagged vessels, and German security companies are already allowed to provide such services, the new legislation is a major step forward.
First, private maritime security companies will now have a clear legal framework with regard to licensing.
Second, the new legislation safeguards the quality of the services, as far as possible, by increasing the requirements that a private maritime security company must meet in order to be licensed. The former legal framework was insufficient in this respect, as it was based on the idea that the public authorities are at hand when security services are provided. It was generally thought that the public authorities had the possibility to intervene in the event of a violation of the laws. This is not the case onboard a vessel, which is why it is necessary to ensure to a further extent that the companies and personnel providing maritime security services are suitable to do so.
The content of the new rules was aligned with the Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel Onboard Ships in the High Risk Area (MSC1/Circ 1405/Rev2) and the Interim Guidance to Private Maritime Security Personnel Providing Privately Contracted Armed Security Personnel Onboard Ships in the High Risk Area (MSC1/Circ 1443) developed by the Maritime Safety Committee of the International Maritime Organisation. However, the requirements to obtain a licence, according to the new scheme, are solely documentary. It follows that no official test must be passed in order to enable an applicant to obtain a licence to provide maritime security services.(3) Nevertheless, the new German rules are contributing to the international process to safeguard the quality of private maritime security companies. It is therefore expected that the new scheme will further assist international measures against piracy.
Finally, in respect of the recently published Standard Contract for the Employment of Security Guards on Vessels from BIMCO (GUARDCON) and the new German rules on the use of private maritime security companies, Clause 10(b), Part 2 of the GUARDCON mainly addresses the obligation of private maritime security companies to operate with the necessary permits and licences to transport and carry weapons. As outlined, according to German law, two separate licences are generally necessary – one to provide private maritime security services and the other to transport and carry weapons.(4) However, Clause 20 also stipulates expressly that the national law of the flag state must be obeyed by each party. It is obvious that both licences must be obtained by private maritime security companies. It is nevertheless advisable to expressly mention this fact in Box 11, Part 1 of the GUARDCON standard form.
For further information on this topic pleasecontact Maximilian Guth or Marco G Remiorzat Dabelstein & Passehl by telephone (+49 40 31 77 970), fax (+49 40 31 77 97 77) or email (email@example.com or firstname.lastname@example.org).
(1) See http://dipbt.bundestag.de/extrakt/ba/WP17/467/46757.html (in German).
(2) With regard to the criminal liability risks when the rules governing the use of private maritime security companies are violated, see "Piracy: criminal liability risks when using armed private security teams".
(3) During the legislative procedure it was also recommended that an official test with the content of 4.3 of the MSC.1/Circ 1443 and 4.7 of the MSC.1/Circ 1405/Rev2 must be passed by the applicant and its employees. See http://dip21.bundestag.de/dip21/btd/17/094/1709403.pdf (in German).
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