The Olympic Games have just concluded, and never before has France mobilized such an extensive arsenal to secure its territory during this event.
With a projected 24,127 individuals likely to enter the private security profession in the coming months (in the prevention and security branch), thousands of new French agents will be joining a sector with high stakes and strict regulations, as these are regulated professions.
These new recruits, like more seasoned security agents, may be tempted—facing persistent challenges such as high turnover, demanding hours, and lack of recognition—and in pursuit of the inherent flexibility of private security work, to forgo the status of employee and venture out on their own by opting for the status of self-employed, now known as individual entrepreneur.
While this decision may offer undeniable advantages, the legal consequences of such a change are often poorly anticipated or even ignored, which can lead the new private security entrepreneur to face serious difficulties, particularly during an inspection conducted by agents of the National Council for Private Security Activities (CNAPS).
This article aims to guide security agents considering this transition by providing them with the necessary legal elements to successfully carry out their project.
Summary :
- The legal framework for the individual entrepreneur in private security: the triptych of "card, director's approval, and license to operate" in current validity.
- The inspection procedure by the CNAPS.
- The sanctions in case of non-compliance.
- Advice to future individual entrepreneurs in private security.
1) The legal framework for the individual entrepreneur in private security: the triptych of "card, director's approval, and license to operate" in current validity.
Through the management of litigation cases against CNAPS and field visits to clients, I have had the opportunity to observe a significant fact that must be presented without ambiguity: too many security agents who have chosen to become individual entrepreneurs are not in compliance with the regulations provided by the Internal Security Code (CSI).
The reason?
It is often linked to a misunderstanding of the texts and certain misconceptions that still circulate within the profession.
Here is a legal insight before initiating any project in this area.
- No, a professional card is not sufficient when starting your activity as an individual entrepreneur in private security.
Many private security agents who have become individual entrepreneurs still practice their activity with only a professional card issued by the CNAPS as their authorization.
Indeed, these new entrepreneurs often believe that this title is sufficient, often citing reasons like they “work alone,” they “only do fieldwork,” and they “do not sign contracts.” Such an interpretation is incorrect.
While the professional card is indeed indispensable when the agent is performing a private security activity as an employee (human surveillance, guarding, cash transportation, personal protection, ship protection, or private detective work), it is no longer sufficient once they leave this status.
Even if the entrepreneur works alone, they still operate as an individual business, legally distinct from their physical person.
Consequently, the regulations concerning private security activities require holding a director's approval and a license to operate issued by the CNAPS, in addition to the professional card when the entrepreneur is working in the field.
Article L612-6 of the CSI expressly provides for this obligation to obtain a director's approval:
“No one may individually engage in an activity mentioned in Article L611-1, nor manage, operate, or be a partner of a legal entity engaged in such activity, unless they hold an approval granted according to procedures defined by decree in the Council of State.”
An identical requirement applies regarding the license to operate, governed by Articles L612- 9 to L612-19 of the CSI, whether it is issued to legal entities or individual operators.
This regulation has direct implications for subcontracting practices and execution.
- The link and implications with subcontracting.
As mentioned earlier, an individual entrepreneur engaged in private security must, in order to be contracted as a subcontractor by a private security company, possess a valid professional card, director's approval, and license to operate.
The contracting company is required to verify that the subcontractor is in compliance and holds the authorizations issued by the CNAPS. If not, both the subcontractor and the contracting company may face sanctions from the CNAPS.
It should be noted that in practice, it is common for individuals to hold both employee and selfemployed status. This dual status is entirely legal and poses no difficulty, provided that each intervention by the agent or entrepreneur is clearly defined either by an employment contract or a subcontracting agreement.
This is precisely what the CNAPS will verify.
2) The inspection procedure by the CNAPS.
During an inspection carried out by the CNAPS, the inspectors will notably check the legal framework governing the service being inspected.
If the individual being inspected is working as an employee and their employer can present an employment contract corroborated by a prior declaration of employment (DPAE), a professional card will suffice.
However, if the individual is providing a subcontracted service, they will no longer be operating under employee status but as an individual entrepreneur. In this case, they must hold all three authorizations (professional card, director's approval, license to operate) and be able to present the CNAPS with the duly signed subcontracting contract with the contracting company
Failing to do so, both the subcontractor and the contracting company are exposed to disciplinary actions and sanctions from the CNAPS.
3) The sanctions in case of non-compliance.
An individual entrepreneur inspected by the CNAPS without holding a director's approval and a license to operate is exposed to both disciplinary and criminal sanctions.
- Administrative sanctions.
The CNAPS can impose disciplinary sanctions on the individual entrepreneur who is not in compliance, under the provisions of Article L634-7 of the CSI.
The range of applicable sanctions is quite broad, ranging from a warning, a reprimand, to a temporary ban on practicing private security activities for up to seven years.
Additionally, these sanctions may be accompanied by financial penalties, the amount of which is determined at the discretion of the CNAPS or the Disciplinary Commission depending on the severity of the offenses, with a maximum of €150,000 for legal entities and €7,500 for individual employees.
The risk of being sanctioned should not be underestimated by the individual entrepreneur. Indeed, violations concerning the lack of a director's approval and license to operate are considered among the most serious by the CNAPS and the judiciary, as established by now well-settled case law.
As a result, the detection of such violations by CNAPS agents often leads to the imposition of a disciplinary sanction banning the individual from practicing, sometimes accompanied by a significant financial penalty.
Moreover, and this risk is particularly underestimated, the individual entrepreneur may face a complete cessation of their activity. Indeed, under Article R634-18 of the CSI :
“The person temporarily prohibited from practicing, or whose approval or professional card is withdrawn, shall not perform any professional act covered by this title.”
This means that in the event of a CNAPS inspection resulting in a ban on practicing, the individual entrepreneur will not even be able to continue their activity as an employee, as the ban will also apply to their professional card.
Finally, it is not excluded—depending on the nature of the violations detected—that the CNAPS may initiate a procedure to withdraw the entrepreneur's professional card, which would result in a permanent cessation of their fieldwork or employee activities.
In case of questions or difficulties, it is essential for the individual entrepreneur not to remain inactive and to prepare a defense dossier, potentially relying on the advice of a lawyer specialized in this field.
- Criminal sanctions. Finally, the CNAPS has the authority to inform the Public Prosecutor of the offenses detected during its inspections if they constitute a criminal offense.
Following this procedure, known as “Article 40 of the Code of Criminal Procedure,” the individual entrepreneur may face prosecution and be subjected to a criminal penalty, as expressly provided for in Article L617-3, which states that:
“Anyone who individually engages in an activity mentioned in Article L. 611-1 in violation of Articles L612-6 to L612-8 shall be punished by three years of imprisonment and a €45,000 fine.”
4) Advice to future individual entrepreneurs in private security.
Before starting, here are some non-exhaustive recommendations:
- Ensure you have the professional aptitude to manage or run a
private security company:
- Either through a recognized diploma or certification that allows you to obtain the approval granted by the CNAPS. If this is not the case, you will need to complete a training course with an organization approved by the CNAPS.
- Or through the validation of prior experience.
- Be mindful of the processing times
- Depending on administrative constraints and the workload of its agents, the CNAPS may take a few days to several weeks, or even more than a month, to process your application.
- Never start working without having received a favorable response from the CNAPS and the issuance of your authorizations.
- Ensure that your criminal record and the Criminal Records Processing System (TAJ – police database) are clean. If not, there is a risk that the CNAPS may refuse to grant you the necessary authorization.
- Once the individual business is created and authorized to operate by the CNAPS, be meticulous in your practice.
Indeed, the CNAPS has the authority to initiate a procedure to withdraw your authorizations if your conduct justifies it.
Furthermore, and in general, the individual entrepreneur in private security must never lose sight of the fact that they operate in a regulated sector, which entails an obligation to stay informed of regulatory changes.
Since these regulations are particularly complex regarding private security activities, it is advisable to consult a lawyer specialized in this field if you have any doubts about a project or initiative to ensure you are operating legally
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.