Constitutional Court annuls prohibition on teaching by former police officers in the private investigation sector

Content of the Act of 18 May 2024 on private investigation

The Act of 18 May 2024, which repealed and replaced the Private Detective Act of 1991, was intended to professionalize the sector. To that end, it introduced strict rules determining who may perform which functions:

• Active police officers were prohibited from exercising functions within private investigation.
• Former police officers were required to observe a three-year cooling-off period prior to entering the sector.
• Nonetheless, active police officers were permitted to teach, whereas former police officers were explicitly excluded from doing so.

Proceedings before the Constitutional Court

A former police commissioner, who since his retirement in 2023 had been teaching at a recognized training institution in the sector (Syntra West), was suddenly excluded from that activity by the entry into force of the new Act of 2024.

He lodged an application before the Constitutional Court, alleging a breach of the constitutional principles of equality and non-discrimination. While active police officers retained the right to teach at such institutions, that same right was denied to persons who, within the preceding three years, had been members of a police service.

Findings of the Court

The Court acknowledged that the legislative objective – namely, preventing undesirable flows of information between the police and the private investigation sector – was legitimate. During the preparatory works, Parliament had emphasized the risk that former police officers might exploit past contacts to obtain sensitive data.

However, the Court held that the distinction drawn by the legislator was not reasonably justified. If active police officers could safely be entrusted with teaching functions, the same applied to former police officers. There existed no objective and reasonable justification for allowing the exception solely in respect of the former group.

Accordingly, the provision prohibiting former police officers who had served within the preceding three years from teaching was annulled.

Consequences of the judgment

As a result of this annulment, former police officers may henceforth teach at recognized training institutions for private investigation. The judgment eliminates a discriminatory exclusion and restores to the sector the benefit of the expertise of former police officials.

The ruling also enhances coherence between the Act of 18 May 2024 and the Act of 2 October 2017 on private security (the so-called “Jambon Act”), under which both active and former police officers may assume teaching assignments. While the 2024 Act governs private investigation, the 2017 Act pertains to private security, including the activities of security companies.

The Court confined its ruling to the specific issue of teaching functions. The decision does not alter the continuing prohibition on combining activities in private investigation with employment in private security, nor does it affect the prohibition on members of the police services undertaking ancillary activities as private detectives or as security or surveillance agents.

This judgment strengthens the constitutional principle of equality and confirms that both the legislature and the sector must exercise due care in designing transition and incompatibility rules.

How Andersen may assist

The evolution of the regulatory framework governing both private security and private investigation – and the impact of this judgment – illustrate the complexity and volatility of the applicable legal regime. Andersen advises and assists clients – including training institutions, former police officers, and stakeholders in the private investigation and security sectors – by providing:

• Advising on the application of the Act of 2 October 2017, the Act of 18 May 2024, and relevant case law;
• Assessment of contractual and ethical risks;
• Legal representation in proceedings before the Federal Public Service for Internal Affairs (refusal and withdrawal of identification cards), the Belgian courts, and the Constitutional Court;
• Strategic advice to ensure compliance and operational continuity.

For further information and assistance, please contact Andersen in Belgium.