The business of maritime security companies was subjected to licensing by the law introducing a licensing procedure for security companies on ocean-going vessels dated March 4, 2012 (Federal Law Gazette I page 362 of 12.03.2013). The legal basis for the licensing procedure is section 31 of the Trade Regulation Code. In order to take into account the specific requirements for guarding ocean-going vessels security companies were generally excluded from the scope of section 34a Trade Regulation Code (permit under trade law of security companies).

Natural and legal persons who wish to perform security functions on ocean-going vessels seaward of the boundary of the German exclusive economic zone may apply for a licence, section 2 (1) of the ordinance on the licensing of security companies on ocean-going vessels Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels.

• Resident and foreign security companies who wish to perform security functions on ocean-going vessels flying a German flag.
• Security companies established in Germany who wish to offer security services on ocean-going vessels flying foreign flags.

The competent licensing authority is the BAFA in Eschborn; it decides on the licence applications in consultation with the Federal Police agency.

The duration of the licensing procedure depends on different factors. It takes longer to process applications where supporting documents are missing, than applications with all documents enclosed.

The application can only be submitted using the electronic application form provided by BAFA. This form should also be used for uploading the necessary documents to prove compliance with the approval requirements.

Note:

After sending the electronic application form, you will receive a pdf-file which was generated on the basis of your application. This document must be signed by the designated executive and be sent back electronically via the upload form within a period of 14 days.

The applications will be processed in the order of in which they are received.

The period of validity of the licence is 2 years (section 3 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels).

It depends on the type of operation. Operations on ships flying the German flag are based on the new sect. 28a of the Weapons Act which stipulates the conditions for the acquisition, possession and carrying of guns and ammunition by security companies on board sea-going vessels. The appropriate legal weapons permit is granted by the Office of Internal Affairs and Sports – Weapons Authority – of the Free and Hanseatic City of Hamburg. Moreover, security companies established in Germany need a licence under export control law in addition to the approval under trade regulation code and the permit pursuant to the weapons act. The delivery and carrying of weapons and listed equipment out of Germany for operations on board of ocean-going vessels in international waters is an export subject to licensing in accordance with section 8 (1) Foreign Trade and Payments Regulation.

Details on the licence required under weapons act and export control legislation are explained below.

In terms of the licensing process BAFA will assist you with regard to the requirements to be met for a licence. BAFA’s Homepage provides a lot of detailed information on the licensing procedure. By the help of our checklist, companies can find out whether they meet all the demands set. Besides this, you also find a list of all documents to be submitted with the application.

The Annex to Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels enumerates a considerable number of legal provisions. It is the task of the training and education institutes to impart the relevant knowledge to the security personnel. If you conduct in-house training, the lecturer has to command the necessary expertise.

Guidance and legal advice for the security personnel during their operations on ocean-going vessels must be provided by a qualified person in place 24/7. This is not necessarily a German lawyer.

Of course, you are free to contact a lawyer or other expert for legal advice concerning the requirements of the licensing procedure.

German ship owners are not obliged to employ security companies on board. Ship owners have to refrain from it if this is prohibited in the waters to be cruised. In this case they can contact the state in question.

ICOC is to be seen in connection with the increasing deployment of private security companies on behalf of state forces in military conflicts. As a result of this problem, the so-called Montreux Document was drafted in 2008 describing the validity or applicability of international law to private paramilitary forces or security companies. In the following years the ICOC was developed on this basis, in November 2010 it was signed by 58 security companies. By signing this document, they commit themselves to adhere to certain humanitarian standards and subject themselves to certain checks. Until February 2013 592 private security companies had signed the ICOC. Since then, the number of signing companies has increased sharply.

The application of the two documents (Montreux document and ICOC) which was the basis of drafting the IMO guidelines, supported by some states, i.a. USA and UK was rejected in the sessions 89/90 in MSC because piracy was considered a police problem and not an armed military conflict and the aforementioned documents were not drafted for a maritime background.

The requirements for granting a licence are laid down in the detailed standards of the Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels and the Ordinance Implementing the Ocean-Going Vessel Security Ordinance. Acquiring a certification under ISO/PAS 28007 or signing contracts under Guardcon have no influence on the licensing process because it has to be proved that all the requirements of the relevant regulations are met in these cases, too.

ISO-certification is no government licence or state-recognised certification, therefore it is not sufficient for recognition and, thus, for granting a German licence. In case of doubt, the recognition depends on the conditions of section 15 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels and remains subject to an individual decision.

The licensing procedure under section 31 Trade Regulation Code sets similar high demands on the Management Compliance System as ISO/PAS 28007. Some demands are more detailed in the German certification procedure for legal reasons and go beyond the requirements of ISO/PAS. Companies meeting the ISO/PAS 28007 standard are well prepared for the German licensing procedure.

Section 31 Trade Regulation Code lays down the demands to be fulfilled by a security company for being approved. In addition to the demands set on the company’s organization and processes, they also include the professional and personal aptitude, the reliability of staff and management as well as liability insurance.

BAFA checks in consultation with the Federal Police agency whether these demands are fulfilled. The checks focus on the company, that means BAFA and the Federal Police check the company’s operational framework and the internal processes as well as the demands on the senior executive designated as responsible person.

The following documents are necessary for a decision on granting a licence:

• Documents giving evidence of the company’s operational framework pursuant to section 4 (1) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels:
  • Documents referring to the responsible person:
    • Documents on the designation of a senior executive, name and function in the company,
    • Excerpt from commercial register to prove the power of procuration of the designated executive, if possible
    • Description of tasks of responsible person,
    • Copy of verification that staff was informed,
  • Organization chart, if possible
  • Copy of staff information about the responsible persons (responsibilities, managerial authority and holiday replacement),
  • Description of organizational structure
  • Documentation of process framework in the form of a process manual
  • Staff requirements profile,
  • Description of staff selection,
  • Description of personnel audits,
  • Job familiarisation,
  • Further training of staff (training schemes, firearms training, information procurement, intelligences services)
  • Name of person in charge of legal advice, his/her qualification,
  • Presentation of internal control and audit processes,
  • Documentation system to meet the requirements,
  • Explanation of communication system,

• Documents proving procedures pursuant to section 5 (1) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels:
  • Process manual,
  • Export, import or transit licences as well as trafficking and brokering licences obtained
  • Internal rules and measures for safekeeping of weapons and ammunition

• Standing orders pursuant to section 5 (2) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels:
  • General standing order
  • Example of operations-specific standing order
  • Shift scheduling

• List of weapons and equipment used, including their specific properties, secion 6 (1) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels,

• Documents proving the requirements under section 11 (2) to (4) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels
  • List of former employers,
  • Statement on whether criminal proceedings or a preliminary investigation by public prosecutor are pending against the individual,
  • Certificate of good conduct for submission to an authority under section 30 (5) of the Federal Central Criminal Register Act or a comparable document with a certified translation,
  • Education or training certificates or other supporting papers proving expertise under section10 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels

• Proof of liability insurance under section 12 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels.

• The company’s profile giving a description of the market position of the security company in the area of maritime security and

• An excerpt from the commercial register or a similar foreign document.

The following documents – unless available in German language – have to be submitted with a certified translation into German:

• Certificates of good conduct for submission to an authority under section 30 (5) of the Federal Central Criminal Register Act or comparable foreign documents
• Foreign approvals or certifications the recognition of which is applied for
• Legal basis of the foreign approvals or certifications

All other papers can generally also be submitted in English language. In individual cases it may be necessary to submit the translation later.

No, it isn’t. The relationship between the security company and the ship owner is not the subject of the licensing process. This is the task of the Federal Office of Maritime Shipping and Hydrography.

The designated executive serves as a role model for the security personnel. He/she must therefore possess the same level of knowledge. If his/her competence is not documented in full when the application is filed BAFA will ask for it.

In his case section 11 (3) Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels provides that a comparable foreign document may be submitted. If it is not in German language a certified translation is required.

This will be decided in the individual case. The essential criterion is that the freelance staff or the guards of the subcontractor are under the company’s authority. If the ordering (and approved) company has the full right to issue instructions to these persons, and they are informed about the responsibilities and procedures in the contracting company, they do not need their own licences.

The rule of thumb is: If the employed guards are treated in the same way as the own staff the subcontractor does not need a licence.

The security company must ensure that freelancers or subcontractors meet the requirements set on the professional and personal aptitude and reliability. Besides this, the security company must provide the freelance staff or subcontractors who are under its authority with all the required documents (for example process manual) and information on the organizational structure.

In accordance with section 7 of the Ordinance Implementing the Ocean-Going Vessel Security Ordinance, every security operative entrusted with security functions on board ocean-going vessels must participate in weapons training at least four times per year. The individual weapons training sessions may not be more than six months apart in each case.

There are no specific requirements for the organisation of the weapons training. The security company must ensure the secure handling of weapons by the help of this training. Therefore, the security company has to submit a weapons training concept focusing on the secure handling of weapons within the licensing process. In addition, the weapons training must be planned in conformity with the laws. Accordingly, weapons training on board German-flagged vessels may only be carried out if a permission pursuant to section 10 (5) Weapons Act has been granted.

In accordance with section 10 (5) Weapons Act the permission to fire a gun requires a shooting licence. Such a licence is only granted by the weapons authority for specific reasons and if it is not in conflict with the interest in public security and order. If such a licence has been granted, it is allowed to carry out weapons training on board German-flagged vessels. For weapons training on board of vessels under foreign flag the law of the respective flag state applies.

As part of the certification procedure, the company is subjected to an audit, that means it is checked whether the security companies meet the requirements under Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels. The individual security operatives are not checked within the application procedure. Moreover, the companies are responsible to ensure that the security personnel meet the demands in terms of reliability, qualification and expertise. Based on the submitted documents concerning personnel selection, personnel audits and further training, BAFA checks in consultation with the federal police whether the company is in the position to do so.

Following certification, BAFA will conduct reviews and request each company to provide documents referring to individual guards on a random basis in accordance with section 29 Trade Regulation Code.

Yes, it does. Section 7 (2) Weapons Act was rendered ineffective for this purpose. It is the company’s decision whether the specialized knowledge of weapons is acquired by in-house training or external training courses. The Hamburg arms authority checks whether the necessary knowledge was acquired on the basis of the documents submitted.

The security operatives need not appear in person, it is sufficient to submit written evidence. The security operatives are checked afterwards, the weapons owner’s licence for the approved company is issued in advance.

Yes, he can. If an approved company educates its staff in in-house training courses, as far as possible, it has to keep records on this. These records are also valid if the staff changes to another company.

Yes, if the foreign company is approved.

The legal knowledge may be taught by in-house training or in external courses. The Ocean-going Vessel Security Ordinance does not specify where this knowledge is acquired. Thus, the companies are free to choose the instructor, exempli gratia lawyers, training centres or their own experts to conduct in-house training. The legal training has thereby to be conducted by a lawyer or equally qualified person.

The training has to familiarize the security operatives with the basic legal provisions. The content of the training required is listed in the Annex to section 10 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels.

In accordance with the Annex to section 10 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels “competence”, all security operatives have to take part in first-aid training. Taking into consideration that it is often not possible to quickly get professional medical care on board ocean-going vessels, at least one trained paramedic should be in the team.

The ordinance does not provide that BAFA itself conducts competence reviews, charges or recommends other companies/institutions to conduct the necessary training, or draws up concepts. The company must prove that the relevant training was conducted. Where this knowledge is acquired is deliberately not laid down in the Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels. The company is free to select the institution, for example rescue organization.

The legislating body has taken into account the courses offered. Security operatives meet the requirements in terms of first aid knowledge if they possess evidence of safety familiarization and basic training in accordance with Part A-VI/1, table A-VI/1-3 of the Annex to STCW Convention. This evidence must not be more than one year old. The demands on a paramedic are satisfied if the security operative has successfully completed the “paramedics” course of a recognized relief organization. In order to take into account the specific situation at sea, the documentation of basic maritime knowledge under number 8.2 of the Annex to section 10 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels and of technical knowledge with reference to ocean-going vessels and equipment is required. Advanced education in the medical care of bullet wounds, burns and injuries etc. is also required.

The recognition of foreign documents or training certificates depends on their content; they are compared with first-aid courses or paramedic courses in Germany. Decisions will depend on an individual review in all cases.

No, there is no such list. A certification of training institutes is also not planned. Thus, the company is free to select the institution. When filing an application, the companies must submit their training concepts which are then checked for suitability.

Each team member must be equipped at least with the following items, section 14 paragraph 2 Ordinance Implementing the Ocean-Going Vessel Security Ordinance:

• night vision equipment
• range finder
• binoculars
• long firearm
• short firearm
• sufficient ammunition
• ballistic helmet
• camera
• ballistic vest
• radio equipment with microphone headset, satellite telephone
• medical equipment
• automatic life vest.

The individual model types and their specific features have to be designated in the licence application. The equipment list must at least contain the following information: manufacturer, model and serial number.

If the equipment shall be purchased after the licence was granted the equipment list should contain the models the company intends to use. After the licence is granted the company is obliged to use these types. Since the supply chain has to be described under section 12 (8) sentence 1 Ordinance Implementing the Ocean-Going Vessel Security Ordinance the company must indicate where the weapons will be purchased. The company must therefore have obtained quotes already.

The licence will contain a clause obliging the company to produce evidence that the equipment applied for was purchased from the given supplier.

In Annex 2 to section 2 (2) to (4) Weapons Act the banned weapons are listed in Part 1. The use of inter alia weapons of war or fully automatic firearms is prohibited. Arms not contained in the Annex are permitted, in principle.

The weapons used and their specific characteristics have to be indicated on the licence application. Then BAFA decides on the suitability of the weapons in accordance with the above Annex and in consultation with the Federal Police SEA.

Section 14 (2) Ordinance Implementing the Ocean-Going Vessel Security Ordinance lists the minimum equipment to be provided to security guards.

Yes, it is. The rule in section 14 (2) Ordinance Implementing the Ocean-Going Vessel Security Ordinance is clear. Derogations cannot be permitted. In case pirates enter the ship a short firearm is necessary for self-defence.

No, they aren’t. Section 12 (4) third sentence of Ordinance Implementing the Ocean-Going Vessel Security Ordinance only lays down that in areas where attacks on the ocean-going vessel are imminent the deployed security operatives must carry their weapons with them ready for use. No distinction is made between rifles and handguns.

Taking weapons and ammunition into or through the territory is not subject to licensing under section 29 Weapons Act. The licence includes the taking by its holder (confer section 32 (5) Number 1 Weapons Act).

If no weapons are in place yet, an advance entry in the weapon owner’s licence is necessary. Available weapons are directly entered on the weapon owner’s licence.

For goods requiring approval and exported from Germany, floating armouries may only be used if those are approved as consignee within the framework of the collective export licence. Floating armouries are only approvable if they are under state supervision and not located in international waters. The companies have to submit the relevant documentation. For the storage of goods exported from other states, floating armouries may only be used if those are approved by the exporting state. The approval must be submitted to BAFA.

The legal procurement of weapons is the company’s task. Where they are procured in accordance with the legal provisions and the required licences (export control regulations, weapons law) are available, it is possible to lend weapons, in principle.

The weapons used on German vessels only need to be indicated.

The ballistic vests must at least fulfil the standards of the German safety class 1, independently of the type and quantity of the equipment in place and the applicant’s tactical concept of protection. A higher protective class may be optionally required.

The public and employers liability insurance constitutes a compulsory insurance and must therefore be taken out with an insurance company authorised to conduct business in Germany, according to section 113 (1) Insurance Contract Act. Authorised to conduct business are on the one hand insurance companies based in Germany and, on the other hand, all insurance companies based in Member States of the European Community or any of the contracting states of the Agreement on the European Economic Area, according to section 105 (1) Insurance Supervision Act (VAG).

Also insurance companies outside of the EU and the EEC come into question as compulsory insurer, if the German supervisory authority has granted permission in accordance with sections 105 et sequentes Insurance Supervision Act.

Security companies have not only the option to choose an insurance company based in Germany but also an insurer outside of the EU/EEC and others with permission according to section 105 Insurance Supervision Act.

No, it wasn’t. The German standard is the only basis.

The recognition of foreign licences and certifications is based on section 15 Ordinance on the Licensing of Security companies on Ocean-Going Sea Vessels.

Basically, it must be a state approval or state-recognised certification for security functions on ocean-going vessels. Other certifications can only be recognised if they were issued by a state-recognised accreditation office.

Prior to the recognition it is checked which parts of the foreign legal basis and of the German law are essentially equal. These are recognised without a review of the company’s documents. Non-equivalent parts have to be separately documented in accordance with German law by the company.

The rules were subjected to legal verification and are in conformity with the European law.

The recognition may be applied for using the electronic form.

Note:

After sending the electronic application form, you will receive a pdf-file which was generated on the basis of your application. This document must be signed by the responsible person and be sent back electronically and via the upload form to BAFA within a period of 14 days.

The following papers have to be submitted with the application for recognition:

• The foreign certification and
• All foreign legal bases relevant for granting the certification,

including a certified translation, if the documents are not in German language.

Where the requirements under German law go beyond the requirements of the foreign regulations, separate evidence is necessary to prove that the requirements are fulfilled. In this case, you will get a request to submit further documents. Papers proving that the German licensing requirements are met may generally also be submitted in English because no legal comparison is made in this case.

Such a list does not exist. Decisions are taken individually.

If the foreign certification cannot be recognised the procedure will lead – if desired – to the procedure for granting an initial German licence.

The fees are based on the Regulation on Fees and Expenses of the Federal Office for Economics and Export Control in connection with the Licencing of Security Companies on board ocean-going Vessels. The exact amount depends on the type of the requested official act (initial licence, subsequent licence, recognition of a foreign licence) as well as the administrative expenditures.

The subsequent application is cheaper. The complete papers have to be submitted and are then checked for amendments as compared to the first application.

Yes, you do. For repeated temporary exports of weapons and other equipment listed in part I section A of the export list (Annex to Foreign Trade and Payments Regulation – Foreign Trade and Payments Regulation) or Annex I of the Council Regulation (EC) No 428/2009 an export control licence is required. For this case BAFA offers the possibility to apply for a Global Export Licence (Collective Licence Procedure)

Weapons and ammunition always require a licence when being exported from Germany. With regard to the other equipment it depends on the type used, whether a licence is required or not.

In addition, the export has to be declared to the competent customs office. For details see http://www.zoll.de.

Note:

A violation of the export control law may be subject to criminal prosecution or administrative fines. The manager or the acting staff may risk considerable punishment, for example prison sentence or fines in these cases (section 17 ff. Foreign Trade and Payments Act.

The application for an export licence is processed at BAFA, by Division 223.

In case of repeated temporary exports BAFA offers the possibility to apply for a Global Export Licence (Collective Licence Procedure), it permits exports and transfers of goods subject to licensing to different countries and to different consignees. If you want to apply for Collective Licence Procedure your company needs a well-functioning internal export control system (Internal Compliance Programme – ICP). In this case, the private security companies can profit from the results of the licensing procedure. Private security companies have to install an ICP on their own in order to meet the requirements in connection with the Collective Licence Procedure licences granted.

The licence is a condition for the granting of the SAG under export control law. Therefore the SAG can only be granted when the maritime security company has obtained its licence.

The Firearms Regulation contains provisions pertaining to the export of certain firearms; they apply in the entire European Union. Since September 30,  2013, exports of firearms listed in Annex I to this Regulation are subject to authorisation under Article 4, if not a licence is already required pursuant to section 8 (1) Foreign Trade and Payments Regulation.

The Firearms Regulation is an EU Regulation which is directly applicable in Germany. It entered into force on September 30, 2013.

At the time when the firearms regulation was drafted, the maritime security has not been in the process of discussion.

Security companies on ocean-going vessels flying the German flag whose activities involve the use of weapons, need a weapon owner’s licence to acquire and possess these weapons pursuant to section 10 (1) Weapons Act which is granted when the requirements are fulfilled under section 28a Weapons Act.

The licences or permits for security companies on board ocean-going vessels under a German flag pursuant to section 28a Weapons Act are granted by the arms authority of the Free and Hanseatic City of Hamburg in accordance with section 48 (1) sentence 2 Weapons Act.

German companies have to file the application to the local arms authority which transmits the papers to the arms authority of the Free and Hanseatic City of Hamburg.

In addition, security companies which are established in Germany and intend to take over guarding and security missions on board sea vessels under a foreign flag using weapons acquired in Germany, have to apply for the permission to acquire and possess weapons on German sovereign territory at the local regulatory authority. The special responsibility of the Hamburg Weapons Authority does not apply in this case.

Contact:               

Office of Internal Affairs and Sports
– Weapons Authority – Hamburg
Grüner Deich 1
20097 Hamburg

Phone: +49 40 4286-67601
Fax: +49 (0)40 4273-14042
E-Mail: waffenbehoerde@polizei.hamburg.de

Yes, it is possible. The permit under weapons law will, however, be issued after the licence was granted.