Opinion of the Advocate General — ECLI:EU:C:2020:756
Date: 2020-09-29
Language of the case: German
Subject matter: Economic and monetary policy;European system of central banks
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
31 May 2019 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
27 March 2019 
Applicant, appellant and appellant on a point of law: 
KH 
Defendant, respondent and respondent in the appeal on a point of law: 
Hessischer Rundfunk 
  
Subject matter of the main proceedings 
Monetary policy, euro banknotes as legal tender, payment of radio and television 
licence fees in cash 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Does the exclusive competence that the European Union, pursuant to 
Article 2(1) TFEU, in conjunction with Article 3(1)(c) TFEU, enjoys in the area 
of monetary policy for the Member States whose currency is the euro preclude a 
legal act of one of those Member States that provides for an obligation on the part 
of public authorities of the Member State to accept euro banknotes in the 
fulfilment of statutorily imposed payment obligations? 
EN 
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2. Does the status as legal tender of banknotes denominated in euro, as 
established in the third sentence of Article 128(1) TFEU, the third sentence of 
Article 16(1) of Protocol (No 4) on the statute of the European System of Central 
Banks and of the European Central Bank and the second sentence of Article 10 of 
Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro 
contain a prohibition precluding public authorities of a Member State from 
refusing fulfilment of a statutorily imposed payment obligation in such banknotes, 
or does EU law leave room for provisions that exclude payment in euro banknotes 
for certain statutorily imposed payment obligations? 
3. If the first question is answered in the affirmative and the second question is 
answered in the negative: 
Can a legal act of a Member State whose currency is the euro which is adopted in 
the context of the European Union’s exclusive competence in the area of monetary 
policy be applied to the extent to which, and for so long as, the European Union 
has not made use of its competence? 
Provisions of EU law cited 
Treaty on the Functioning of the European Union (TFEU), specifically Articles 2, 
3 and 128 
Protocol (No 4) on the statute of the European System of Central Banks and of the 
European Central Bank (‘statute of the ESCB and the ECB’), specifically 
Article 16 
Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro 
(OJ 1998 L 139, p. 1), specifically Article 10 
Commission Recommendation 2010/191/EU of 22 March 2010 on the scope and 
effects of legal tender of euro banknotes and coins (OJ 2010 L 83, p. 70) 
Provisions of national law cited 
Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal 
Republic of Germany; ‘the GG’), specifically Article 31 
Gesetz über die Deutsche Bundesbank (Law on the German Bundesbank; ‘the 
BBankG’), specifically Paragraph 14 
Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’), specifically 
Paragraphs 286 and 293 to 295 
Rundfunkbeitragsstaatsvertrag (State Treaty on radio and television licence fees; 
‘the RBStV’), which the federal Land of Hesse approved by law of 23 August 
2011, specifically Paragraphs 2, 7, 9 and 10 
HESSISCHER RUNDFUNK 
 
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Statutes of Hessischer Rundfunk (the public broadcaster for the federal Land of 
Hesse) on the payment of radio and television licence fees; ‘the Licence fee 
statutes’), specifically Article 10 
Brief summary of the facts and procedure 
1 The applicant is the owner of a residential property located in the region of the 
defendant, a federal Land broadcasting organisation governed by public law. He is 
for that reason obliged to pay to the defendant a radio and television licence fee 
pursuant to Paragraph 2(1) of the RBStV. 
2 The applicant offered to pay the radio and television licence fee in cash, but the 
defendant refused that offer, referring to Article 10(2) of its Licence fee statutes. 
Pursuant to that provision, the radio and television licence fee may be paid only 
by way of cashless payment — by direct debit, individual transfer or standing 
order.  
3 By decision of 1 September 2015, the defendant set overdue radio and television 
licence fees of EUR 52.50 for the second quarter of 2015 and a surcharge of 
EUR 8 for late payment. By decision of 31 March 2016, the defendant rejected the 
applicant’s objection. 
4 The applicant brought an action, requesting that the two decisions referred to 
above be annulled. In the alternative, he requested a declaration establishing that 
he is entitled to pay radio and television licence fees to the defendant in cash. The 
action was unsuccessful at first and second instance. 
5 The applicant continues to seek the same form of order by way of the appeal on a 
point of law brought before the referring court. As his grounds, he asserts that the 
second sentence of Paragraph 14(1) of the BBankG and the third sentence of 
Article 128(1) TFEU each make provision for an unconditional and unrestricted 
obligation to accept euro banknotes as a means for the settlement of monetary 
debts. This obligation, he argues, may be restricted only by a contractual 
agreement between the parties or on the basis of authorisation under federal or EU 
legislation. This is also the case if reasons of practicability militate in favour of 
the exclusion of cash payments in the context of mass procedures. 
Brief summary of the basis for the request 
6 The outcome of the dispute turns on a decision of the Court of Justice on the 
interpretation of the Treaties. 
Assessment of the dispute under national law 
7 The defendant’s decisions — the annulment of which the applicant seeks by 
means of his main request — prove to be unlawful under national law. 
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8 It is true that the applicant is obliged to pay a radio and television licence fee as 
the owner of a residential property pursuant to Paragraph 2(1) of the RBStV. The 
obligation to pay radio and television licence fees, which is tied to residential 
properties in the private sector, is, in principle, compatible with the Basic Law, as 
determined by the Bundesverfassungsgericht (Federal Constitutional Court) by 
judgment of 18 July 2018. Pursuant to Paragraph 7(3) of the RBStV, the 
applicant’s licence fees for the period at issue — from 1 April 2015 to 30 June 
2015 — fell due in the middle of that period, that is to say, on 15 May 2015. As 
the time of payment is determined by the calendar, formal notice regarding the 
occurrence of the default was not necessary (cf. point 1 of Paragraph 286(2) of the 
BGB). 
9 However, the defendant was in default in acceptance (Paragraph 293 of the 
BGB) — which rules out default on the part of the debtor — when it issued the 
contested decisions, as it refused the applicant’s offer to make payment for the 
radio and television licence fees in cash. 
10 The reason for this is that, pursuant to the second sentence of Paragraph 14(1) of 
the BBankG, banknotes denominated in euro are ‘the sole unrestricted legal 
tender’. On the basis of a systematic, historical and teleological interpretation of 
that provision, the referring court concludes that public authorities are obliged to 
accept euro banknotes if they are intended to meet a statutorily imposed payment 
obligation. Exceptions cannot automatically be based on reasons of administrative 
practicability or cost savings, but rather require authorisation by virtue of a federal 
law. 
11 Only authorisation under Land law exists in the present case, however, since the 
RBStV, on the basis of which the defendant’s Licence fee statutes were adopted, 
produces effects vis-à-vis the applicant only by virtue of an act of assent of the 
federal Land of Hesse. 
12 Pursuant to Article 31 of the GG (‘Federal law takes precedence over Land law’), 
this authorisation under Land law is ineffective as it infringes the provision of 
federal legislation in the second sentence of Paragraph 14(1) of the BBankG. 
13 The referring court takes the view that the obligation to accept euro banknotes that 
is governed in the second sentence of Paragraph 14(1) of the BBankG also applies 
in relation to so-called mass procedures, such as the collection of the radio and 
television licence fee. There are no clear indications that the possibility of paying 
the radio and television licence fee in cash could jeopardise the funding of 
broadcasting organisations that is required pursuant to the case-law of the 
Bundesverfassungsgericht. The fact that the costs associated with accepting cash 
could increase the radio and television licence fee and therefore also burden those 
obliged to pay the fee who do not make use of the possibility of paying in cash 
must be accepted on the basis of the situation under the national law. 
HESSISCHER RUNDFUNK 
 
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First question referred 
14 The referring court is unsure whether the second sentence of Paragraph 14(1) of 
the BBankG is itself inapplicable because it is not consistent with the European 
Union’s exclusive competence in the area of monetary policy. 
15 Pursuant to Article 3(1)(c) TFEU, the European Union has exclusive competence 
in the area of monetary policy for the Member States whose currency is the euro. 
Under Article 2(1) TFEU, the European Union alone may therefore legislate and 
adopt legally binding acts in that area; the Member States are able to do so 
themselves only if so empowered by the European Union or for the 
implementation of EU acts. Pursuant to Article 2(6) TFEU, the scope of and 
arrangements for exercising the European Union’s competences are to be 
determined by the provisions of the Treaties relating to each area. Thus, for 
monetary policy, account must be taken primarily of Article 127 et seq. TFEU. 
16 The content of the concept of monetary policy referred to in Article 3(1)(c) TFEU, 
and therefore the scope of the European Union’s exclusive competences, has not 
yet been conclusively clarified. According to the case-law of the Court of Justice 
(cf. judgments of 27 November 2012, Pringle, C-370/12, EU:C:2012:756, 
paragraph 53 et seq., of 16 June 2015, Gauweiler and Others, C-62/14, 
EU:C:2015:400, paragraph 42 et seq., and of 11 December 2018, Weiss and 
Others, C-493/17, EU:C:2018:1000, paragraph 50 et seq.), the TFEU contains no 
precise definition of monetary policy but defines both the objectives of monetary 
policy and the instruments which are available to the European System of Central 
Banks (ESCB) for the purpose of implementing that policy. Under Article 127(1) 
and Article 282(2) TFEU, the primary objective of the European Union’s 
monetary policy is to maintain price stability. The instruments for maintaining 
price stability include, for example, setting the key interest rates for the euro area 
and issuing euro currency (judgment of 27 November 2012, Pringle, C-370/12, 
EU:C:2012:756, paragraph 96). Chapter IV of the Statute of the ESCB and of the 
ECB also sets out the instruments to which the ESCB may have recourse in the 
framework of monetary policy (judgments of 16 June 2015, Gauweiler and 
Others, C-62/14, EU:C:2015:400, paragraph 45, and of 11 December 2018, Weiss 
and Others, C-493/17, EU:C:2018:1000, paragraph 52). Finally, the Court of 
Justice has made clear that the fact that a measure may have indirect effects on the 
stability of the euro is not sufficient for it to be classified as a monetary policy 
measure (judgments of 27 November 2012, Pringle, C-370/12, EU:C:2012:756, 
paragraphs 56 and 97, and of 16 June 2015, Gauweiler and Others, C-62/14, 
EU:C:2015:400, paragraph 52). 
17 On the basis of this case-law, the referring court is unable conclusively to decide 
whether the exclusive competence of the European Union in the area of monetary 
policy extends to governing the legal consequences associated with the status of 
legal tender of euro banknotes — such as, in particular, stipulating an obligation 
on the part of public authorities to accept euro banknotes — and therefore 
whether, pursuant to Article 2(1) TFEU, there is a restrictive effect in this respect 
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for the legislation of the Member States. It is true that the aforementioned 
obligation does not relate to the objective of maintaining price stability, nor is 
there a direct connection with the instruments specified in primary law for 
achieving those objectives. In particular, the right to issue euro banknotes that is 
conferred on the European Central Bank and the national central banks in 
Article 128(1) TFEU is not restricted or modified. On the other hand, the case-law 
of the Court of Justice does leave room for the assumption that rules intended to 
ensure the acceptance of euro banknotes as legal tender, and therefore the 
effective functioning of monetary transactions, also belong in the area of monetary 
policy. However, it is conceivable that, as a measure that is necessary for the use 
of the euro as a single currency, such a legal act could be based on Article 133 
TFEU, and exclusive competence of the European Union could therefore also be 
assumed in this respect pursuant to Article 2(1) and (6) TFEU. 
Second question referred 
18 The question of whether the German legislature had competence to adopt a 
provision such as the second sentence of Paragraph 14(1) of the BBankG in the 
first place owing to the European Union’s exclusive competence in the area of 
monetary policy does not arise if the applicable provisions of substantive EU law 
actually contain a prohibition precluding public authorities of a Member State 
from refusing the fulfilment of a statutorily imposed payment obligation by means 
of euro banknotes. The reason for this is that, in this case also, Paragraph 10(2) of 
the Licence fee statutes would be unlawful owing to an infringement of superior 
rules of law, with the result that the applicant’s appeal on a point of law would 
have to be allowed. 
19 Pursuant to the third sentence of Article 128(1) TFEU and the — identically 
worded — third sentence of Article 16(1) of the Statute of the ESCB and the ECB, 
the banknotes issued by the European Central Bank and the national central banks 
are to be the only such notes to have the status of legal tender within the European 
Union. Moreover, the second sentence of Article 10 of Regulation No 974/98 
provides — at the level of secondary law — that, without prejudice to Article 15 
of that regulation, that is to say, after the end of the transitional period, banknotes 
denominated in euro are to be the only banknotes which have the status of legal 
tender in all participating Member States. As already stated in respect of German 
law, compulsory acceptance in respect of banknotes denominated in euro cannot 
automatically be derived from the term ‘legal tender’. The term is defined neither 
in the relevant primary-law provisions of the TFEU or the Statute of the ESCB 
and the ECB nor in Regulation No 974/98. Recital 19 of that regulation merely 
indicates that the EU legislature takes the view that limitations on the possibility 
of making payments in cash does not automatically affect the status of legal tender 
of euro banknotes and coins. According to that recital, limitations on payments in 
notes and coins, established by Member States for public reasons, are not 
incompatible with the status of legal tender of euro banknotes and coins, provided 
that other lawful means of payment for the settlement of monetary debts are 
available. 
HESSISCHER RUNDFUNK 
 
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20 It is also unclear how much importance should be attached to Recommendation 
2010/191 in this context. It is true that the term ‘legal tender’ is defined in the 
recommendation, particularly by virtue of the fact that point 1(a) states the 
following: ‘The creditor of a payment obligation cannot refuse euro banknotes and 
coins unless the parties have agreed on other means of payment.’ Pursuant to 
points 2 and 3 of the recommendation, refusals thereof are possible only if 
‘grounded on reasons related to the “good faith principle”’. Pursuant to the fifth 
paragraph of Article 288 TFEU, however, recommendations of the institutions of 
the European Union have no binding force. The legislative history of 
Recommendation 2010/191 also shows that the adoption of a formal legal act was 
to be avoided precisely because there was disagreement in relation to the question 
of whether the European Union has exclusive competence — which it has not yet 
exercised — to establish a common definition of legal tender and the resulting 
effects, or whether the national legislatures have legislative competence in that 
regard. 
Third question referred 
21 The relevance of the first-mentioned question, as to whether the German 
legislature had competence to adopt the second sentence of Paragraph 14(1) of the 
BBankG in the first place owing to the European Union’s exclusive competence in 
the area of monetary policy, must also be answered in the negative if, although an 
obligation to accept euro banknotes when discharging statutorily imposed 
payment obligations cannot be gathered from the applicable provisions of 
substantive EU law, a national provision containing that content can nevertheless 
be applied to the extent that, and for so long as, the European Union has not made 
use of its exclusive competence in a conclusive manner. 
22 It is true that Article 2(1) TFEU provides that, in an area for which the Treaties 
confer on the European Union exclusive competence, the Member States are able 
to legislate only if so empowered by the European Union or for the 
implementation of EU acts. Moreover, it has long been made clear in the case-law 
of the Court of Justice that EU law takes precedence over legislative measures of 
the Member States (cf. judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, 
p. 594). It is also made clear that, in accordance with the principle of the 
precedence of EU law, the relationship between provisions of the Treaty and 
directly applicable measures of the institutions, on the one hand, and the national 
law of the Member States, on the other, is such that those provisions and 
measures, solely by their entry into force, render automatically inapplicable any 
conflicting provision of current national law and preclude the valid adoption of 
new national legislative measures to the extent to which they would be 
incompatible with provisions of EU law (cf. judgment of 9 March 1978, 
Simmenthal, 106/77, EU:C:1978:49, paragraphs 17 and 18). However, the 
fundamental decisions of the Court of Justice in relation to the primacy of EU law 
relate to cases in which a national legal act is precluded by a substantive provision 
of primary or secondary EU law. It cannot be gathered with certainty from the 
available case-law whether a national legal act can also not be applied if it came 
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into being merely by breaching the restrictive effect of the exclusive competence 
of the European Union owing to a lack of legislative action on the part of the 
latter.