EN ECB-PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 11 November 2011 
on protection against counterfeiting and on the preservation of the quality of cash circulation  
(CON/2011/92) 
 Introduction and legal basis
 
On 17 October 2011, the European Central Bank (ECB) received a request from the German Ministry of 
Finance for an opinion on a draft law amending th e Law on the Deutsche Bundesbank (hereinafter the 
‘draft Bundesbank Law’) and a draf t law amending the Law on coins (hereinafter the ‘draft Law on 
coins’).  
The ECB’s competence to deliver an opinion is based on Article 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the first, sec ond and third indents of Ar ticle 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consu ltation of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft legislation concerns currency matters, 
means of payment and the Deutsche Bundesbank. In acco rdance with the first sentence of Article 17.5 of 
the Rules of Procedure of the European Central Ba nk, the Governing Council has adopted this opinion. 
 1.  Purpose of the draft legislation 
1.1 The draft legislation aims to bring the German legal framework for protection against 
counterfeiting in line with recent Union legislation in this area
2. 
1.2 The draft Bundesbank Law foresees, inter alia , widening of the institutions subject to duties 
regarding the detainment and submission of counterfeit banknotes in order to comply with 
Regulation (EC) No 1338/2001. In that context, the new Section 36(4a) provides that parties not ensuring that euro banknotes and coins are chec ked for authenticity or that counterfeits are 
detected, as specified in the relevant Union le gislation, are deemed to have committed an 
administrative offence. The new Section 36a empowers the Ministry of Finance to issue more detailed provisions concerning submission duties, including the possibility of notifying transactions 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  Notably, with: (a) Article 6 of Council Regulation (EC)  No 1338/2001 of 28 June 2001 la ying down measures necessary 
for the protection of the euro agai nst counterfeiting (OJ L 181, 4.7.2001,  p. 6); (b) Decision ECB/2010/14 of 
16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes (OJ L 267, 9.10.2010, 
p. 1); and (c) Regulation (EU) No 1210/2010 of the Eur opean Parliament and the Council of 15 December 2010 
concerning authentication of euro coins and handling of eu ro coins unfit for circulation (OJ L 339, 22.12.2010, p. 1). 
ECB-PUBLIC 
2 with banknote handling systems to the Bundesba nk. The new Section 37a concerns provision of 
information and checks, according to which par ties subject to the detention obligation under 
Section 36(1) seeking to recirculate banknotes have  to inform the Bundesbank on request on the 
origin of the banknotes, their processing and the handling machines used. Section 37a(2) provides 
that the Bundesbank may carry out checks on such  parties. According to Section 37a(3), the 
Bundesbank should prohibit parties contravening th e obligation to check required by Decision 
ECB/2010/14 from recirculating banknotes or certai n denominations thereof or from performing 
checks using certain banknote handling systems. In  addition, some editorial changes are made. 
1.3 The draft Law on coins states that the Bundesb ank exercises the responsibilities provided for in 
Regulation (EU) No 1210/2010, and provides that an administrative offence is deemed to have 
occurred by not ensuring that coins are subject to  an authentication procedure, and by failing to 
submit or failing to submit on time the relevant  coins to the Bundesbank. The latter duty also 
applies to information requests. 
  2.  General observations 
2.1 The ECB welcomes the draft legislation and it is  confident that its provisions will ensure the 
preservation of euro banknotes in circulation, resu lting in continued pub lic confidence in euro 
banknotes
3.  
2.2 As Decision ECB/2010/14 applies to cash handlers by virtue of Article 6(1) of Regulation (EC) 
No 1338/2001, which refers to procedures defined by the ECB for checking euro banknotes, there 
is no strict need to implement Decision ECB/2010/14 into German law.  
2.3 The ECB considers it essential that any draft legislation implementing Decision ECB/2010/14 does 
not deviate from its common provisions, unless th is is explicitly provided for in Decision 
ECB/2010/14. Any national implementing measures should clarify the primacy and direct application of Union law on the authenticity an d fitness checking and recirculation of euro 
banknotes with which cash handlers must comply. In this context and for consistency reasons, the 
ECB favours the use of direct references to D ecision ECB/2010/14 or, alternatively, reproduction 
of its provisions without an y alterations or additions
4.  
2.4 In addition, although national authorities are not formally obliged to consult the ECB on the 
implementation of the Member States’ obligation to take the necessary me asures to ensure that 
breaches of Article 6(1) of Regulation (EC) No 13 38/2001 are subject to ef fective, proportionate 
and deterrent sanctions, the ECB believes it is be neficial to harmonise throughout the Union the 
national measures implementing th is obligation to the extent possible, subject to national 
peculiarities5.  
                                                 
3  Paragraph 2.1 of Opinion CON/2010/90.  All ECB opinions are published on th e ECB’s website at www.ecb.europa.eu.  
4  Paragraphs 2.1 and 2.3 of Opinion CON/2011/19. 
5  Paragraph 1.1 of Opinion CON/2010/87. 
ECB-PUBLIC 
3  
3.  Administrative fines and corrective measures 
3.1 Where cash handlers breach the obligations set out in the Union legislation to which the draft Law 
on coins refers, this results in an  administrative fine, in some cases of up to EUR 20 000, in other 
cases of up to EUR 5 000. In the case of banknotes,  the Law on the Deutsche Bundesbank provides 
for a fine of up to 100 000 EUR. In addition, Ar ticle 37a of the draft Bundesbank law introduces 
the possibility for the Bundesbank to impose co rrective measures on cash handlers that breach 
these obligations regarding banknotes. According to  this provision, the Bundesbank should prohibit 
parties contravening the obligation to check required by Decision 2010/14 from recirculating 
banknotes or certain denominations thereof or  from performing checks using certain banknote 
handling systems. 
3.2 The ECB notes the importance of effec tive, proportionate and deterrent sanctions6. To ensure the 
deterrent effect of the administrative fines, the maximum amount should be a fine which effectively 
deters cash handlers from breach of their oblig ations. While it is up to the Member States’ 
legislators to define the particular amounts of the administrative fines, they should aim for a certain 
degree of harmonisation across the Member States to contribute to the establishment of a level 
playing field among cash handlers within the euro area without prejudice to: (a) the particularities of the cash cycle and the organisation of cash handl ers at national level; and (b) the consistency of 
the levels of financial sanctions  available in their legal orders
7.  
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 11 November 2011. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI 
                                                 
6  Article 6(2) of Regulation (EC) No 1338/2001. 
7  Paragraph 3.4 of Opinion CON/2010/87.