Provisional text

delivered on 30 January 2025 (1)

Case C-783/23

Liège Airport Security

État belge, represented by the ministre de l’Intérieur

(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, Belgium))

( Preliminary ruling proceedings – Regulation (EC) No 300/2008 – Transport – Air transport – Civil aviation security – Article 4 and Annex I – Common basic standards – Article 9 – Appropriate authority responsible for the coordination and monitoring of the common basic standards – Powers of national authorities with regard to the oversight of private security services operating in an airport – Scope )

1.The Ministère de l’Intérieur (Service Public Fédéral Intérieur) (Interior Ministry (Interior Federal Public Service), Belgium) imposed penalties on the company responsible for providing security at Liège airport (Belgium) and on two of its employees, on the grounds that the company in question lacked the authorisation required by law and those employees lacked the identification card which they should have requested from the ministry.

2.An appeal was lodged against those penalties and the court which is required to rule on the appeal at last instance has referred a question to the Court of Justice for a preliminary ruling on the interpretation of Article 9 of Regulation (EC) No 300/2008. (2) The referring court asks, inter alia, whether the power conferred on the authority designated under that provision excludes action of the kind which the Interior Ministry took in this case.

3.Chapter 1 (‘Definitions’) provides:

‘Acts of unlawful interference. These are acts or attempted acts such as to jeopardise the safety of civil aviation, including but not limited to:

–unlawful seizure of aircraft,

–destruction of an aircraft in service,

–hostage-taking on board aircraft or on aerodromes,

–forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility,

–introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes,

–use of an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment,

–communication of false information such as to jeopardise the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the general public, at an airport or on the premises of a civil aviation facility.

…’

4. In accordance with Chapter 2, point 2.1.1:

‘Each Contracting State shall have as its primary objective the safety of passengers, crew, ground personnel and the general public in all matters related to safeguarding against acts of unlawful interference with civil aviation.’

‘1. This Regulation establishes common rules to protect civil aviation against acts of unlawful interference that jeopardise the security of civil aviation.

It also provides the basis for a common interpretation of Annex 17 to the Chicago Convention on International Civil Aviation.

(a) the setting of common rules and common basic standards on aviation security;

(b) mechanisms for monitoring compliance.’

6. Article 2 (‘Scope’) provides:

‘1. This Regulation shall apply to the following:

(a) all airports or parts of airports located in the territory of a Member State that are not exclusively used for military purposes;

(b) all operators, including air carriers, providing services at airports referred to in point (a);

(c) all entities applying aviation security standards that operate from premises located inside or outside airport premises and provide goods and/or services to or through airports referred to in point (a).

…’

7. Article 3 (‘Definitions’) states:

‘For the purposes of this Regulation:

1. “civil aviation” means any air operation carried out by civil aircraft, excluding operations carried out by State aircraft referred to in Article 3 of the Chicago Convention on International Civil Aviation;

…

8. “screening” means the application of technical or other means which are intended to identify and/or detect prohibited articles;

9. “security control” means the application of means by which the introduction of prohibited articles may be prevented;

10. “access control” means the application of means by which the entry of unauthorised persons or unauthorised vehicles, or both, may be prevented;

…’

9. Article 4 (‘Common basic standards’) provides:

‘1. The common basic standards for safeguarding civil aviation against acts of unlawful interference that jeopardise the security of civil aviation shall be as laid down in the Annex.

Additional common basic standards not foreseen at the entry into force of this Regulation should be added to the Annex in accordance with the procedure referred to in Article 251 of the Treaty.

These general measures shall concern:

(a) methods of screening allowed;

(b) categories of articles that may be prohibited;

(c) as regards access control, grounds for granting access to airside and security restricted areas;

(d) methods allowed for the examination of vehicles, aircraft security checks and aircraft security searches;

(e) criteria for recognising the equivalence of security standards of third countries;

(f) conditions under which cargo and mail shall be screened or subjected to other security controls, as well as the process for the approval or designation of regulated agents, known consignors and account consignors;

(g) conditions under which air carrier mail and air carrier materials shall be screened or subjected to other security controls;

(h) conditions under which in-flight supplies and airport supplies shall be screened or subjected to other security controls, as well as the process for the approval or designation of regulated suppliers and known suppliers;

(i) criteria for defining critical parts of security restricted areas;

(j) criteria for staff recruitment and methods of training;

(k) conditions under which special security procedures or exemptions from security controls may be applied; and

(l) any general measures designed to amend non-essential elements of the common basic standards referred to in paragraph 1 by supplementing them not foreseen at the date of entry into force of this Regulation.

On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 19(4).

10. Article 6 (‘More stringent measures applied by Member States’) reads:

‘1. Member States may apply more stringent measures than the common basic standards referred to in Article 4. In doing so, they shall act on the basis of a risk assessment and in compliance with Community law. Those measures shall be relevant, objective, non-discriminatory and proportional to the risk that is being addressed.

…’

11. Article 9 (‘Appropriate authority’) provides:

‘Where, within a single Member State, two or more bodies are involved in civil aviation security, that Member State shall designate a single authority (hereinafter referred to as the appropriate authority) to be responsible for the coordination and monitoring of the implementation of the common basic standards referred to in Article 4.’

12. Annex I sets out the ‘Common basic standards for safeguarding civil aviation against acts of unlawful interference (Article 4)’.

1. Loi du 2 octobre 2017 réglementant la sécurité privée et particulière (4)

12. Article 4 defines a security undertaking as any undertaking which offers or performs security services or presents itself as such.

13. Pursuant to Article 16, no one may offer security services or establish an internal security service without having obtained prior authorisation from the Interior Ministry.

14. Article 76(1) requires that persons entrusted with performing security duties must hold identification cards issued by the Interior Ministry.

15. Article 208 provides for there to be inspectors, who are members of staff of the public services, to monitor compliance with the LSPP and its implementing rules.

16. Article 210 tasks inspectors with issuing notices recording infringements of the LSPP and its implementing rules.

17. Article 216 grants inspectors investigatory powers to gather the information that they consider necessary to ensure compliance with the rules on private security.

18. Article 236 provides that penalties may only be imposed for infringements of the LSPP or its implementing rules on persons who are the subject of an infringement notice.

19. Article 4ter(2) provides that:

– Public service tasks relating to airport security are to be entrusted to undertakings holding the concession for the operation of airports, in accordance with the detailed rules laid down in the concession contract and respective tender specifications, without prejudice to the third subparagraph of paragraph 2 and paragraphs 3 to 5.

– For the purposes of this article, security tasks are understood to mean all measures and human and material resources intended to protect civil aviation against acts of unlawful interference; protection tasks are understood to mean all measures and human and material resources intended to ensure the safe flow of civil air traffic.

– The administrative authorities are responsible for monitoring proper performance of the concession, inter alia as regards performance of security and protection duties. The administrative procedures for monitoring proper performance of the concession are described in the concession agreements and in the respective tender specifications.

II. Facts, dispute and question referred for a preliminary ruling

21. The summary of the facts provided by the referring court (6) is as follows:

– The Walloon Region and the Liège Airport public limited company formed the public limited company LAS in order to undertake security tasks within the meaning of Article 4ter(2) of the Walloon Decree of 23 June 1994.

– On 16 March 2018, agents of the Interior Ministry attended Liège airport to carry out an inspection in relation to compliance with the LSPP. In the context of that inspection, they found that two employees were engaged in specific private security activities: the first controlled access by passengers to the runways using a metal detector, while the second claimed to be inspecting screening checkpoints and staff.

–Three infringement notices were issued. One of those notices was issued against LAS, for establishing an internal private security service without authorisation from the Interior Ministry (infringement of the first paragraph of Article 16 of the LSPP), while the other two were issued, one for each employee, for working without being in possession of an identification card (Article 76(1) of the LSPP).

22.On 27 November 2020, the Interior Ministry imposed a fine of EUR 15 000 on LAS. On 11 March 2021, the Interior Ministry imposed a fine of EUR 500 on each of the two employees.

23.LAS contested the decisions of the Interior Ministry before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), arguing that, in Belgium, the direction générale du transport aérien (Directorate-General of Air Transport; ‘DGTA’) was the authority responsible for the coordination and monitoring of the implementation of the common basic standards on civil aviation security, within the meaning of Article 9 of Regulation No 300/2008.

24.LAS claimed that, in placing the security services of an airport under the control of the Interior Ministry, Belgium had infringed Article 9 of Regulation No 300/2008, that is, it had not complied with the requirement (laid down in that provision) to designate a single appropriate authority.

25.The action brought by LAS was dismissed by the court of first instance by judgment of 25 February 2022, against which LAS lodged an appeal in cassation. In that appeal, LAS again claims that the Interior Ministry is not competent to monitor airport security activities.

26.Against that background, the Cour de cassation (Court of Cassation, Belgium) has referred the following question to the Court of Justice for a preliminary ruling:

‘Is Article 9 of Regulation … No 300/2008 … to be interpreted as meaning that the appropriate authority designated under that provision is to monitor the implementation of the common basic standards referred to in Article 4, to the exclusion of any other authority, only where those standards are laid down by regulations specific to civil aviation security?’

III. Procedure before the Court of Justice

27.The request for a preliminary ruling was received at the Registry of the Court of Justice on 19 December 2023.

28.Written observations were lodged by LAS, the Belgian, French and Polish Governments and the European Commission.

29.It was not considered necessary to hold a hearing.

30.The legislation governing private and personal security in Belgium (the LSPP) provides that any security undertaking which offers or performs security services or presents itself as such must have prior authorisation from the Interior Ministry.

31.The LSPP further provides that persons entrusted with performing activities falling within the scope of that law must hold an identification card or credentials issued by the Interior Ministry.

32.The LSPP contains general (horizontal) rules applicable to all private and personal security undertakings, without referring specifically to the security and screening tasks or services that are performed in an airport.

33.The Walloon Decree of 23 June 1994 sets out the legal rules applicable to airports in that region. In accordance with the decree:

–The administrative authorities are responsible for monitoring proper performance of the concession, inter alia as regards the performance of security and protection duties.

–Public service tasks relating to airport security are entrusted to undertakings holding the concession for the operation of airports. A public limited company is created for every airport, owned as to 49% by the undertaking holding the concession to operate the airport and as to 51% by the Walloon Region. The security duties entrusted to the undertaking holding the concession to operate the airport are to be delegated to that public limited company: in the case of Liège airport, to LAS.

34.The screening of persons in Belgian airports is governed by the common basic standards (within the meaning of Article 4 of Regulation No 300/2008), which are monitored by the DGTA, whereas the general rules governing private security firms are contained in the LSPP.

35.As a result, LAS submits, there is an overlapping of competences that is not compatible with Regulation No 300/2008, because the security undertakings and officers who perform private security duties in Belgian airports may be monitored by both the DGTA and the Interior Ministry.

36.The Commission, the Belgian Government and the other governments which have intervened in the preliminary ruling proceedings dispute the arguments put forward by LAS.

37.In view of the account of the facts provided by the referring court, I believe that the dispute should be confined to a determination of whether: (a) the Interior Ministry is entitled, under the LSPP, to exercise some control over the authorisation required of LAS and over its employees’ credentials; or (b) that control falls exclusively within the competence of ‘the appropriate authority’ (the DGTA) designated under Article 9 of Regulation No 300/2008.

38.It is not in dispute that, despite having been formed as a public limited company, LAS is required to comply with the Belgian provisions applicable to private security firms.

39.LAS states that the reference for a preliminary ruling invites the Court to give a ruling on whether the LSPP is compatible with Regulation No 300/2008, before adding that the examination must be broadened to include the difficulties arising from ‘the Belgian hierarchy of norms [in which] regional decrees have the force of legislative provisions, at the same level as federal laws’. On that basis, LAS argues that the LSPP ‘does not have primacy over the Walloon Decree of 23 June 1994’.

40.It is clear that the Court must confine itself to interpreting EU law in relation to the legal framework presented by the referring court, without involving itself in disputes that are purely national in scope, such as that raised by LAS.

41.In accordance with recital 25 thereof, Regulation No 300/2008 is intended ‘to safeguard civil aviation against acts of unlawful interference and to provide a basis for a common interpretation of Annex 17 to the Chicago Convention on International Civil Aviation’.

42.Article 1(1) of Regulation No 300/2008 provides that the objective is ‘to protect civil aviation against acts of unlawful interference that jeopardise the security of civil aviation’. Examples of those acts (or attempted acts) are listed in Chapter 1 of Annex 17 to the Chicago Convention.

43.In accordance with Article 3 of Regulation No 300/2008, ‘aviation security’ means ‘the combination of measures and human and material resources intended to safeguard civil aviation against acts of unlawful interference that jeopardise the security of civil aviation’, the latter being defined as ‘any air operation carried out by civil aircraft’.

44.Article 1(2) of Regulation No 300/2008 specifies in detail the means of achieving the objectives of that regulation. These entail, first, ‘the setting of common rules and common basic standards on aviation security’ and, second, ‘mechanisms for monitoring compliance’.

45.The common basic standards governed by Annex I to Regulation No 300/2008 apply to a dozen specific fields. The regulation also permits the adoption of additional common basic standards, which are similarly listed in the annex to the regulation, and general measures designed to amend non-essential elements of the common basic standards.

46.For the purposes of these preliminary ruling proceedings, attention must be focused on Article 9 of Regulation No 300/2008, the interpretation of which is sought by the referring court. That article is concerned with the mechanisms for achieving compliance with the substantive provisions of the regulation.

47.Article 9 of Regulation No 300/2008 contains two stipulations regarding the ‘appropriate authority’ for the coordination and monitoring of compliance with the common basic standards on civil aviation security:

–First, it acknowledges that a single Member State may have two or more bodies that are involved in civil aviation security.

–Second, it imposes on Member States the obligation to designate ‘a single authority … to be responsible for the coordination and monitoring of the implementation of the common basic standards referred to in Article 4’.

48.From a literal point of view, Article 9 of Regulation No 300/2008 clearly acknowledges that more than one body may be engaged in performing tasks in the field of aviation security. Whether or not there is more than one body, Member States must designate, in all cases, a single authority with responsibility for the coordination and monitoring of the implementation of the common basic standards referred to in Article 4.

49.The legislative context also indicates that it may be acceptable to have more than one body whose actions are coordinated and supervised by the appropriate authority. That is reflected in recital 12 of Regulation No 300/2008.

50.Responsibility for the tasks of ‘coordination and monitoring’ with regard to the implementation of the common basic standards therefore lies, in accordance with Article 9 of Regulation No 300/2008, with the single appropriate authority which each State designates. No less, but no more either (unless, as I shall point out below, a Member State entrusts that authority with more duties).

51.Article 9 of Regulation No 300/2008 does not automatically lead to the assignment to that authority of additional duties (for example, enforcement or inspection) other than the coordination and monitoring of the activities of the other bodies which have been entrusted with civil aviation security tasks by a Member State.

52.To accept the opposite point of view would equate to the creation of a kind of ‘supreme authority’ and duplication of the powers of other specialised national authorities or even the replacement of those authorities.

53.Many bodies or public authorities, which are subject to their own sectoral operating rules, may provide services at airports. There is, I repeat, nothing to preclude Member States from allocating specific tasks to those bodies and authorities, including in the field of airport security, which, if those tasks involve the implementation of the common basic standards referred to in Article 4 of Regulation No 300/2008, the ‘appropriate authority’ will be responsible for coordinating and monitoring.

54.Indeed, the scope of Regulation No 300/2008 is very broad: in accordance with recital 6 and Article 2(1), the regulation applies to airports serving civil aviation located in the territory of a Member State, to operators providing services at such airports and to entities providing goods and/or services to or through such airports.

55.It is logical that, in the light of that broad substantive scope, the focus of Regulation No 300/2008 should be to ‘lay down the basic principles of what has to be done in order to safeguard civil aviation against acts of unlawful interference without going into the technical and procedural details of how they are to be implemented’.

Along the same lines:

–Article 1, in conjunction with Article 4, of Regulation No 300/2008 merely sets out the objective of setting common basic standards on aviation security. The technical and procedural aspects of the implementation of those standards are left to the national legislature, while Regulation No 300/2008 does not predetermine all the details of the organisation of the aviation security system.

–Article 6 of Regulation No 300/2008 permits Member States to apply more stringent measures than the common basic standards referred to in Article 4.

–Article 10 of Regulation No 300/2008 provides that the national civil aviation security programme is to define responsibilities for the implementation of the common basic standards referred to in Article 4.

57.According to the information made available to the Court, the security tasks performed by LAS and its employees correspond to the implementation of some of the common basic standards provided for in Article 4 of and Annex I to Regulation No 300/2008.

58.That does not mean that the ‘appropriate authority’ designated under Article 9 of Regulation No 300/2008 should carry out all duties related to the activities of private security undertakings and guards. As I pointed out above, that article explicitly limits the powers of that authority to the coordination and monitoring of the implementation of the common basic standards.

59.Naturally, Member States are authorised to add other powers to those powers so that the authority referred to in Article 9 of Regulation No 300/2008 performs tasks which are additional to those referred to in that provision. In those circumstances, national provisions, and not Regulation No 300/2008, will govern how and by whom those tasks are to be performed.

60.The Court is required to interpret Regulation No 300/2008, not the national provisions. Nor does it fall to the Court to rule on the domestic division of powers of each Member State in this field. The determination as to which of the different State or sub-State authorities or bodies take on which powers (complying, in all cases, with the provision regarding the coordination and monitoring powers of the authority referred to in Article 9 of Regulation No 300/2008) is a matter for the referring court.

61.In particular, no provision of Regulation No 300/2008 precludes Belgium from assigning to its Interior Ministry the role of examining whether private security firms have the permits required under national sectoral legislation or whether the employees of those firms have the mandatory identification card issued by that ministry.

In its written observations,

LAS places the powers exercised by the Interior Ministry on the same footing as the coordination and monitoring tasks allocated to the DGTA, in order to suggest that there is conflict between the rules laid down in the LSPP and Article 9 of Regulation No 300/2008.

63.In my view those powers are not equivalent, nor do they conflict with each other.

–In a situation like that at issue, the powers exercised by the Interior Ministry simply concern verification of the general conditions which all private security firms in Belgium must fulfil, whatever their specific field of activity.

–The powers conferred on the authority (the DGTA) designated under Article 9 of Regulation No 300/2008 are limited to the coordination and monitoring of the implementation of the common basic standards referred to in Article 4. As regards private security firms operating in airports, the DGTA is not responsible for issuing the general permits which those firms are required to hold under national law.

64.I agree, therefore, with the Commission and all the governments which have intervened in these proceedings that there is no reason why the power conferred on the Interior Ministry to supervise private security firms, in the terms set out above, should interfere with the monitoring and coordination tasks of the authority designated under Article 9 of Regulation No 300/2008.

65.It can be inferred from the order for reference and the course of the preliminary ruling proceedings that the Interior Ministry is authorised by the LSPP to enforce the provisions on private security which must be complied with as an essential condition for performance of that activity.

66.As an essential (and prior) condition for the performance of private security tasks, authorisation from the Interior Ministry is required irrespective of the space in which private security firms perform those tasks. From that perspective, it is immaterial whether that space is an airport or another public or private building.

67.The examination of whether, in a specific case, the provisions governing the permits required of private security firms, or their employees’ credentials, have been complied with is something which, in the absence of a national rule stating otherwise, may form part of the range of powers of a sectoral authority (in this case, the Interior Ministry) and not necessarily of the authority to which Article 9 of Regulation No 300/2008 refers.

68.For those purposes, it is, I stress, immaterial whether private security firms operate in an airport or in any other space: that circumstance does not alter the rules applicable to those firms. Those rules are laid down by the national legislature, taking into account each Member State’s system of division of powers between its own (State or sub-State) bodies and authorities.

69.The inspection carried out by the Interior Ministry was not intended to verify whether, in this case, LAS and its employees were performing their airport security duties in a substantively correct manner: it was simply intended to check whether or not LAS and its employees held the (prior and mandatory) authorisation and the credentials to perform those duties.

70.In summary, I believe that the supervisory role carried out by an authority such as the Interior Ministry has no bearing at all on the requirement laid down in Article 9 of Regulation No 300/2008 and does not interfere with the coordination and monitoring powers conferred on the ‘appropriate authority’ designated therein.

71.In the light of the foregoing considerations, I propose that the Court of Justice reply to the Cour de cassation (Court of Cassation, Belgium) as follows:

Article 9 of Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 2320/2002

must be interpreted as meaning that it does not preclude the oversight of compliance with the provisions governing private security firms, as regards the permits required of those firms and the credentials of their employees in accordance with national law, from being performed by an authority other than the ‘appropriate authority’ designated as responsible for the coordination and monitoring of the implementation of the common basic standards referred to in Article 4 of Regulation No 300/2008.

For those purposes, it is immaterial whether or not the services provided by a private security firm are performed in an airport.

1

Original language: Spanish.

Regulation of the European Parliament and of the Council of 11 March 2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 2320/2002 (OJ 2008 L 97, p. 72), as amended by Commission Regulation (EU) No 18/2010 of 8 January 2010 (OJ 2010 L 7, p. 3).

The Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (United Nations Treaty Series, Vol. 15, No 102; ‘the Chicago Convention’). Although the European Union has not ratified the Chicago Convention, it has the status of observer on certain bodies of the International Civil Aviation Organisation (ICAO). The Member States are contracting States of the Chicago Convention and members of the ICAO. Annex 17 to the Chicago Convention was adopted on 22 March 1974.

Law of 2 October 2017 on private and personal security (Moniteur belge of 31 October 2017, p. 96776; ‘the LSPP’).

Relatif à la création et à l’exploitation des aéroports et aérodromes relevant de la Région wallonne (Walloon Decree of 23 June 1994 on the creation and operation of airports and aerodromes under the jurisdiction of the Walloon Region) (Moniteur belge of 15 July 1994, p. 18666), in the version applicable ratione temporis to the facts, adopted by the Decree of 19 December 2007 (Moniteur belge of 31 December 2007, p. 65947) (‘the Walloon Decree of 23 June 1994’).

Section II of the order for reference.

Part of the Mobility and Transport Federal Public Service.

Article 3 of the LSPP, which defines private and personal security activities, refers, inter alia, and in very broad terms, to any form of static guarding of property, surveillance and monitoring of the public in order to ensure the security and smooth running of events, and also tasks relating to the maintenance of security in places with or without public access.

Paragraphs 45 and 46 of the written observations of LAS.

Statement lodged by LAS on 15 July 2024, requesting a hearing in order to present oral argument on, inter alia, that point. As indicated above, the Court did not grant that request.

Unlawful seizure of aircraft; destruction of an aircraft in service; hostage-taking on board aircraft or on aerodromes; forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility; introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes; use of an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment; communication of false information such as to jeopardize the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the general public, at an airport or on the premises of a civil aviation facility.

Operations carried out by State aircraft, as referred to in Article 3 of the Chicago Convention on International Civil Aviation, are excluded.

The 12 fields are: (1) airport security; (2) demarcated areas of airports; (3) aircraft security; (4) passengers and cabin baggage; (5) hold baggage; (6) cargo and mail; (7) air carrier mail and air carrier materials; (8) in-flight supplies; (9) airport supplies; (10) in-flight security measures; (11) staff recruitment and training; and (12) security equipment. In accordance with Article 4(2) and (3) of Regulation No 300/2008, Commission Implementing Regulation (EU) 2015/1998 of 5 November 2015 laying down detailed measures for the implementation of the common basic standards on aviation security (OJ 2015 L 299, p. 1) was adopted.

The Polish Government’s written observations, paragraphs 17 and 18.

Recital 5 of Regulation No 300/2008, which points out ‘the need for more flexibility in adopting security measures and procedures in order to meet evolving risk assessments and to allow new technologies to be introduced’.

Paragraphs 56, 87, 101 and 102.