The Swiss Federal Act on Private Security Services provided Abroad (PSSA) entered into force in September 2015. Alongside PSSA the Ordinance on Private Security Services provided Abroad (OPSA) took effect, revised version of which recently entered into force in January 2021. The need for better alignment of terminology among existing laws, namely the 1996 Goods Control Act (GCA), the 1996 War Material Act (WMA) and PSSA, and in order to resolve the inconsistencies thereof, brought about the revision of OPSA.
In addition, due to the potential overlap among obligations set forth under PSSA, respectively under the ordinances relating to WMA and GCA, a set of guidelines[i] were drafted by the federal agency to help better delineate applicable scopes.
To set the background, the expansion of the private security services sector in recent years prompted a need for a more efficient calculation of risk potentially posed by these services, hence the raison d’être for enactment of new and revision of existing legislation. In particuar, with the pace of technological developments for which the know-how is often in the hands of the private sector, increase in public-private partnerships in this sector has become inevitable.
In this context, it is decisive as to whether the subject matter activities are carried out within the jurisdiction of Switzerland, alternatively abroad. In the case of latter, PSSA would apply. Any legal or natural person, an employee, mandate or recipient of instructions would be captured by the scope of the Act. Also, as set out in Article 2, a Swiss based entity exercising control over a private security service provider which is based abroad may fall under the scope of the PSSA.
Given that the definition of ‘security services’ had been kept relatively broad as per the non exhaustive list set out in Article 4 PSSA, providers often failed to accurately analyse the nature of their operations and activities as to whether the provision of their services would fall under its scope, and hence be subject to supervision and declaration requirements.
In parallel to this provision, Article 1 of the revised OPSA outlined a more precise formulation in order to define following activities: i) operational and logistical support for armed or security forces, ii) operation and servicing of weapons systems and iii) advice or training of members of armed or security forces.
More importantly, Article 8a of the revised OPSA has introduced an exemption under certain circumstances. Under this provision, a private security service provider would bypass the PSSA declaration requirement if:
- the entity exports goods pursuant to the GCA or war material pursuant to the WMA and provides servicing, maintenance or repair services in close connection to subject matter goods or material, wherby the export would still be lawful when the said activity is performed; or
- the entity exports goods pursuant to the GCA or war material pursuant to the WMA and provides advising and training given on servicing, maintenance, repair, development, manufacture or use in close connection to subject matter goods or material, whereby the export would still be lawful when the said activity is performed; or
- the entity transfers intellectual property (IP) and its associated rights in compliance with the WMA and provides advising and training given on servicing, maintenance, repair, development, manufacture or use in close connection with the good, whereby the transfer would still be lawful when the said activity is performed.
In this context, in order for an export or an IP transfer to be considered lawful when the said activities take place, it would be sufficient for the entity in question to have a valid export permit. In case of absence of a valid export permit, however, i.e. when a good in question has already been exported from Switzerland, the burden would fall on the entity to check with the authorities, namely the export controls and private security services section (ECPS), and to ensure whether the export would still be considered lawful at the time of the provision of the service. Here, the date of provision would essentially be determined by the date on which the activity would begin.
In other words:
- In cases where a given activity defined under Article 1 of the revised OPSA is not in close connection to the export of a good pursuant to the GCA or war material pursuant to the WMA, the PSSA declaration requirement becomes compulsory;
- In cases where a given activity defined udner Article 1 of the revised OPSA is in close connection to the export of a good or material, but the export is not in compliance with the GCA, respectively the WMA, the PSSA declaration becomes compulsory;
- In cases where a given activity constitutes ‘operational support’ for armed or security forces, the PSSA declaration is always compulsory and the exemption under Article 8a of the revised OPSA does not apply.
The significance of the 2021 OPSA revision in implementing PSSA became more apparent in the statistics contained in the 2021 ECPS annual report, published in June 2022[ii]. In this regard, the number of declarations in year 2021 concerning services for armed or security forces shows almost a tenfold decrease compared to the preceding year, which could in principle be the consequence of key changes brought about by the revised OPSA.