Opinion of the Advocate General — ECLI:EU:C:2022:1005
Date: 2022-12-15
Language of the case: Lithuanian
Subject matter: European Central Bank (ECB);Economic and monetary policy
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of receipt:  
14 December 2021 
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the order for reference:  
8 December 2021 
Appellant and applicant at first instance:  
‘Brink’s Lithuania’ UAB 
Other party to the appeal proceedings and defendant at first instance:  
Lietuvos bankas 
  
Subject matter of the action in the main proceedings 
The action in the main proceedings relates to the binding nature, interpretation and 
application of the substantive legal rules governing the minimum standards for 
automated fitness checking of euro banknotes by banknote handling machines 
(‘the minimum standards’). 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Decision ECB/2010/14 of the European Central Bank of 
16 September 2010 on the authenticity and fitness checking and recirculation of 
euro banknotes (‘Decision ECB/2010/14’), as amended by Decision ECB/2012/19 
of the European Central Bank of 7 September 2012 (‘Decision ECB/2012/19’), 
and the validity of Article 6(2) of that decision; third paragraph of Article 267 of 
the Treaty on the Functioning of the European Union. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-772/21 
 
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Questions referred 
1. Should Article 6(2) of Decision ECB/2010/14 be interpreted as meaning that 
the minimum standards referred to in that rule must be complied with by a cash 
handler who carries out automated fitness checking of euro banknotes? 
2. If, in accordance with Article 6(2) of Decision ECB/2010/14, the minimum 
standards referred to therein are applicable only to manufacturers of banknote 
handling machines (but not to cash handlers), should Article 6(2) of Decision 
ECB/2010/14, read in conjunction with Article 3(5) thereof, be interpreted as 
precluding a provision of national law according to which the obligation to 
comply with those minimum standards does apply to a cash handler? 
3. Do the minimum standards for automated fitness checking of euro banknotes 
by banknote handling machines, regard being had to the fact that they are 
published on the ECB’s website, comply with the principle of legal certainty and 
with Article 297(2) TFEU, and are they binding on, and capable of being relied 
upon as regards, cash handlers? 
4. Is Article 6(2) of Decision ECB/2010/14, in so far as it provides that the 
minimum standards for automated fitness checking of euro banknotes are 
published on the ECB’s website and amended from time to time, contrary to the 
principle of legal certainty and to Article 297(2) TFEU, and therefore invalid? 
Provisions of EU law cited 
Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures 
necessary for the protection of the euro against counterfeiting, as amended by 
Council Regulation (EC) No 44/2009 of 18 December 2008, (‘Regulation 
No 1338/2001’): Article 6(1) and (2). 
Decision ECB/2010/14 of the European Central Bank of 16 September 2010 on 
the authenticity and fitness checking and recirculation of euro banknotes: recital 2, 
Article 1, Article 2(2) and (6), Article 3(1) and (3) to (5), Article 6(1) and (2), 
Article 9(1), Article 10(1) and (3) and Article 13(2). 
Decision ECB/2012/19: recital 3 and point 4 of the annex thereto. 
The minimum standards for automated fitness checking of euro banknotes by 
banknote handling machines. 
Articles 132(2) and 297(2) TFEU. 
Article 17.7 of the Rules of Procedure of the ECB (ECB/2004/2) of 19 February 
2004. 
BRINK’S LITHUANIA 
 
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Provisions of national law cited 
Article 1 of the Law of the Republic of Lithuania on the Bank of Lithuania (in the 
version of the Law of 27 June 2018; ‘the Law’) provides inter alia as follows: ‘… 
The Bank of Lithuania shall constitute an integral part of the European System of 
Central Banks and shall pursue the objectives and carry out the tasks of the 
European System of Central Banks in accordance with the guidelines and 
instructions of the [ECB]. The Bank of Lithuania shall perform its functions and 
carry out its activities to the extent that they are not contrary to the objectives of 
the [ECB] and of the European System of Central Banks and comply with the 
legal acts of the European Union, including the legal acts of the [ECB]. …’ 
Article 6(3) of the Law provides that ‘The Bank of Lithuania shall supervise how 
cash handlers, that is to say, the institutions specified in Article 6(1) of Regulation 
[No 1338/2001] (“cash handlers”), perform the requirements provided for in 
Regulation (EU) No 1210/2010 and Decision ECB/2010/14 for cash handling 
activities – authenticity and fitness checking and recirculation of euro banknotes 
and coins (“cash handling activities”).’ 
Article 476(1) of the Law provides: ‘The Bank of Lithuania shall organise and 
carry out checks in order to determine compliance with the requirements 
established in the legal acts referred to in Article 6(3) of this Law.’ 
Article 475(1) of the Law provides: ‘The Bank of Lithuania shall supervise the 
cash handling activities of cash handlers and shall issue instructions to cash 
handlers in accordance with the provisions of this Law, Regulation 
[No 1338/2001], Regulation (EU) No 1210/2010, Decision ECB/2010/14 and the 
legal acts of the Bank of Lithuania on the supervision of the activities of cash 
handlers. …’ 
Article 477(1)(2) of the Law provides: ‘Upon detection of infringements, the Bank 
of Lithuania shall issue one or more mandatory instructions to the cash 
handler: … (2) to remedy the infringements within the period set by the Bank of 
Lithuania.’ 
Point 16.3 of the Description of the Procedure for Supervision of Cash Handling 
Activities, approved by Resolution of the Board of the Bank of Lithuania of 
10 September 2015, provides that, during an inspection, the responsible 
employees are to test the ability of the cash handling machines used by the cash 
handler to carry out authenticity and fitness checking of euro banknotes or coins. 
Point 16.6 of that legal measure provides that, during such an inspection, the 
responsible employees are to assess whether the cash handler is complying 
properly with the procedures set out in Point 16.5 of the Description and other 
requirements for cash handling activities laid down in Regulation No 1338/2001, 
Regulation No 1210/2010, Decision ECB/2010/14, and the Description of the 
Procedure for Authenticity and Fitness Checking. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-772/21 
 
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Point 12 of the Description of the Procedure for Authenticity and Fitness 
Checking and Recirculation of Euro Banknotes and Coins, approved by 
Resolution of the Board of the Bank of Lithuania of 16 September 2014, states: ‘A 
cash handler shall check euro banknotes for authenticity and fitness in an 
automated manner, in compliance with the minimum standards published on the 
ECB’s website …, using the following: 12.1. Customer-operated machines, the 
banknotes checked by which shall be classified and treated in accordance with the 
procedure established in Annex IIa to Decision (ECB/2010/14); 12.2. Staff-
operated machines, the banknotes checked by which shall be classified and treated 
in accordance with the procedure established in Annex IIb to Decision 
(ECB/2010/14).’ 
Brief summary of the facts in the main proceedings 
1 The dispute in the main proceedings is between ‘Brink’s Lithuania’ UAB (the 
successor to ‘G4S Lietuva’ UAB) (the ‘appellant’) and Lietuvos bankas (the Bank 
of Lithuania) (‘the other party to the appeal proceedings’) regarding the Decision 
of the Director of the Cash Department of the Bank of Lithuania (‘the GPD’) of 
28 February 2019 (‘the Decision’) ordering the appellant to remedy an 
infringement, that is to say, to ensure that the fitness tolerance level for automated 
checking of euro banknotes to be recirculated via the banknote handling machines 
used by the appellant, BPS 200 serial No 20018323 (‘Machine 1’) and BPS 200 
serial No 20018265 (‘Machine 2’) (‘the Machines’), does not exceed the tolerance 
level of 5% set by the ECB. 
2 The inspection carried out on 18 December 2018 at the appellant’s premises 
revealed that Machine 1 had sorted, as fit for circulation, 18.26% of the unfit 
banknotes contained in the test package and that Machine 2 had sorted, as fit for 
circulation, 13.91% of such banknotes.  
3 ‘G4S Lietuva’ UAB has indicated that the euro banknotes sorted during the 
inspection of the company carried out on 18 December 2018 were intended for 
recirculation and claimed that the Machines were tested, not with the standard 
factory settings, but with less strict fitness sorting settings. 
Essential arguments of the parties to the main proceedings 
4 The appellant and the other party to the appeal proceedings have divergent 
understandings of Article 6(2) of Decision ECB/2010/14 in the present case. The 
latter argues that this legal provision must be interpreted as imposing an obligation 
on a cash handler to comply with the minimum standards published on the ECB’s 
website when carrying out automated fitness checking of euro banknotes. The 
appellant argues that that provision should be interpreted as meaning that a cash 
handler must use banknote handling machines that have been successfully tested 
in accordance with the minimum standards published on the ECB’s website when 
carrying out automated fitness checking of euro banknotes. 
BRINK’S LITHUANIA 
 
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Concise justification of the request for a preliminary ruling 
5 In the present case, the decision which applied Article 6(2) of Decision 
ECB/2010/14 and the Minimum Standards is being contested. The assessment by 
the present Chamber of the Lietuvos vyriausiasis administracinis teismas 
(Supreme Administrative Court of Lithuania) suggests, in the light of 
Articles 13(2) and 3(1) of Decision ECB/2010/14, that that decision has direct 
effect. 
6 The case raises the question as to whether Article 6(2) of Decision ECB/2010/14 
is applicable to a cash handler. If not, the question arises as to whether 
Article 6(2) of Decision ECB/2010/14, in conjunction with Article 3(5) thereof, 
should be interpreted as precluding a provision of national law according to which 
the obligation to comply with those minimum standards does apply to a cash 
handler. The present Chamber is also unsure as to the binding nature of the 
minimum standards and the validity of Article 6(2) of Decision ECB/2010/14. 
Regarding the interpretation of Article 6(2) of Decision ECB/2010/14 
7 The present Chamber has doubts as to the interpretation of Article 6(2) of 
Decision ECB/2010/14. According to the Lithuanian version of this rule, a cash 
handler has to comply with the minimum standards. However, recital 3 of 
Decision ECB/2012/19 states that the minimum standards are only of interest to 
manufacturers of banknote handling machines and have no impact on the 
authenticity and fitness checking procedures laid down in Decision ECB/2010/14, 
with which cash handlers have to comply. If Article 6(2) of Decision 
ECB/2010/14 should be interpreted as imposing an obligation on a cash handler to 
use banknote handling machines that have been successfully tested to the 
minimum standards published on the ECB’s website, the present Chamber has 
doubts as to whether Article 6(2) of Decision ECB/2010/14 sets out a test 
procedure which differs from that set out in Article 9(1). 
8 The present Chamber has doubts as to whether Article 6(2) and Article 3(5) of 
Decision ECB/2010/14 impose an obligation on a cash handler which carries out 
automated fitness checking of euro banknotes not only to use machines with 
factory settings but also to ensure compliance with the minimum standards. The 
question also arises as to whether these obligations are fully compatible, 
especially in the event that the use of standard factory settings would not in itself 
ensure compliance with the minimum standards and the cash handler would have 
to take additional steps (including, for example, changing the machine settings) in 
order to ensure compliance with the minimum standards. This question is 
important because, in the present case, the cash handler was subject to a 
requirement arising from the minimum standards, but not to an obligation to use 
the Machines with standard factory settings as provided for in Article 3(5) of 
Decision ECB/2010/14. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-772/21 
 
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9 If the obligation to comply with the minimum standards in accordance with 
Article 6(2) of Decision ECB/2010/14 were to apply to a cash handler, the present 
Chamber would also have doubts as to how the cash handler could ensure 
compliance with the minimum standards, that is to say, whether, in that case, the 
cash handler should carry out additional checks of euro banknotes that have 
already been checked by the banknote handling machine which he or she uses. 
The appellant points out that Decision ECB/2010/14 does not provide for a 
requirement that a cash handler must carry out fitness checks of euro banknotes 
with two different banknote handling machines and that, for objective reasons, a 
cash handler cannot know which euro banknotes have been incorrectly classified 
as fit by the banknote handling machine which he or she uses and cannot calculate 
the amount of euro banknotes which have been incorrectly sorted, and therefore 
cannot assess whether his or her euro banknotes handling activities satisfy the 5% 
tolerance level. The question therefore arises as to whether an interpretation of the 
requirement set out in Article 6(2) of Decision ECB/2010/14 for a cash handler to 
comply with the minimum standards, including the 5% tolerance level, when 
carrying out automated fitness checking of euro banknotes would mean that there 
is a requirement for the cash handler to carry out what is impossible. 
10 The present Chamber has doubts as to whether the wording of Article 6(2) of 
Decision ECB/2010/14 in the various languages of the European Union can lead 
to the unequivocal conclusion that a cash handler must ensure compliance with the 
minimum standards when carrying out automated fitness checking of euro 
banknotes. 
11 On the other hand, if the obligation to comply with the minimum standards under 
Article 6(2) of Decision ECB/2010/14 should, however, not apply to a cash 
handler, the question arises as to whether the use of banknote handling machines 
with standard factory settings alone could make certain that the objective of 
ensuring that euro banknotes are maintained in good condition, as stated in 
recital 2 of Decision ECB/2010/14, is achieved. The other party to the appeal 
proceedings submits that, if the view were to be taken that the obligation to 
comply with the minimum standards laid down in Article 6(2) of Decision 
ECB/2010/14 does not apply to cash handlers, this would invalidate the general 
duty of diligence which implies that a cash handler using a machine must ensure 
that the machine is in a condition suitable to carry out the fitness checking of euro 
banknotes and, furthermore, in that case it would be impossible to ensure that the 
euro banknotes are in good condition. 
Regarding the possibility of imposing, under national law, an obligation on cash 
handlers to comply with the minimum standards 
12 If Article 6(2) of Decision ECB/2010/14 is to be interpreted as meaning that the 
minimum standards apply only to manufacturers of banknote handling machines 
(but not to cash handlers), the present Chamber is unsure whether in this case the 
obligation which national law imposes on cash handlers to comply with the 
BRINK’S LITHUANIA 
 
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minimum standards is compatible with Article 6(2) of Decision ECB/2010/14, in 
conjunction with Article 3(5) thereof. 
– Regarding the binding nature of the minimum standards and the validity of 
Article 6(2) of Decision ECB/2010/14 
13 The minimum standards published on the ECB’s website do not indicate the date 
of their publication, nor do they indicate the date of the amendments or the texts 
of versions previously in force. 
14 The Court of Justice itself has already stated that, in order to determine whether an 
act produces binding legal effects, it is necessary to examine the substance of that 
act and to assess its effects on the basis of objective criteria, such as the content of 
that act, taking into account, as appropriate, the context in which it was adopted 
and the powers of the EU institution, body, office or agency which adopted it 
(judgment of 15 July 2021, Fédération bancaire française, C-911/19, 
EU:C:2021:599, paragraph 38; judgment of 25 October 2017, Romania v 
Commission, C-599/15 P, EU:C:2017:801, paragraph 48; and judgment of 
20 February 2018, Belgium v Commission, C-16/16 P, EU:C:2018:79, 
paragraph 32). 
15 In accordance with the principle of legal certainty, the binding nature of any act 
intended to produce legal effects must be derived from a provision of EU law 
which must be expressly indicated as its legal basis and which prescribes the legal 
form to be taken by that act (judgment of 19 June 2015, Italy v Commission, 
T-358/11, EU:T:2015:394, paragraph 123; judgment of 12 December 2007, Italy v 
Commission, T-308/05, EU:T:2007:382, paragraph 123 and the case-law cited; 
and judgment of 29 September 2011, Poland v Commission, T-4/06, not 
published, EU:T:2011:546, paragraph 82 and the case-law cited). 
16 The Court of Justice has held that an act adopted by an EU institution can be 
enforced against natural and legal persons in a Member State only if those persons 
have had the opportunity to make themselves acquainted with it by means of its 
proper publication in the Official Journal of the European Union. The Court of 
Justice has also held that the principle of legal certainty requires that EU 
legislation must allow those concerned to acquaint themselves with the precise 
extent of the obligations which it imposes upon them, which may be guaranteed 
only by the proper publication of that legislation in the official language of those 
to whom it applies (judgment of 11 December 2007, Skoma-Lux sro, C-161/06, 
EU:C:2007:773, paragraphs 37 and 38). The Court of Justice has indicated that the 
fact that it could be proven that the party concerned in fact knew about the EU 
legislation is not sufficient to make EU legislation which has not been properly 
published in the Official Journal of the European Union enforceable against an 
individual (judgment of 11 December 2007, Skoma-Lux sro, C-161/06, 
EU:C:2007:773, paragraphs 45 and 46). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-772/21 
 
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17 The present Chamber accordingly has doubts as to whether the minimum 
standards – regard being had to the fact that they are published on the ECB’s 
website – infringe the principle of legal certainty and Article 297(2) TFEU, and 
can be regarded as being binding in nature. The present Chamber doubts whether 
a mandatory instruction can be issued to a cash handler who has infringed the 
minimum standards. 
18 The present Chamber is also unsure whether the legal rule in Article 6(2) of 
Decision ECB/2010/14, in so far it provides for such a manner of publication of 
the minimum standards for automated fitness checking of euro banknotes, is 
compatible with Article 297(2) TFEU and with the principle of legal certainty and 
is valid.