EN ECB -PUBLIC  
OPINION OF THE EUROPEAN CENTRAL BANK  
of 22 December  2021  
on the provision of an electronic payment option to consumers 
(CON/ 2021/38) 
Introduction and legal basis  
On 22 November 2021 the European Central Bank (ECB) received a request from the Governor of the  
Nationale Bank van België/Banque Nationale de Belgique, on behalf of the Vice Prime Minister and Minister 
of Economy and Labour,  for an opinion on a preliminary draft program- law introducing, inter alia, the 
obligation for undertakings  to provide an electronic payment option for consumers  (hereinafter the ‘draft 
law’). 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the  
Functioning of the European Union and the second indent  of Article  2(1) of Council Decision 98/415/EC1, 
as the draft law relates to means of payment . In accordance with the first sentence of Article 17.5 of the 
Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.  
1. Pu
rpose of the draft law
1.1  The draft law provides that where a payment in euro is made in the simultaneous physical presenceof a consumer and an undertaking, the undertaking must also make available to the consumer an 
electronic means of payment
2. As stated in the explanatory memorandum accompanyi ng the draft 
law, the objective of the draft law is twofold. First, the requirement for undertakings to  provide to 
consumer s an electronic means of payment is designed to guarantee that the consumer always has 
the possibility of paying via an electronic means of payment. Second, the requirement falls within the 
plan to combat tax fraud3.  
1.2 The draft law defines ‘undertaking ’ as any natural or legal person pursuing an economic purpose on 
a long- term basis, including its associations4. This definition is not limited to  companies in the strict 
sense, but captures any legal or natural person that engages in economic activities towards consumers. In that respect, any of the liberal professions and any person and association can be 
interpreted as an undertaking. Public institutions can also fall under the definition of an undertaking 
when they engage in activities  outside the realm of providing public services
5.  
1.3 The draft law defines ’electronic means of payment ’ as any means of payment other than euro 
1 Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
2 Article 107 of the draft law.  
3 See page 3 of the explanatory memorandum of the draft law . 
4 See Article I.8 , 39° of the Code of Economic Law.  
5 See pages 6 and7 of the explanatory memorandum of the draft law . 
ECB -PUBLIC  
2 bankno tes and coins, supplied by a payment service provider6. Luncheon vouchers, eco- vouchers 
and consumer vouchers, which are subject to a specific legal framework in the area of taxation and 
labour rights, are excluded from the definition of an electronic means of payment, as are 
cryptocurrencies7. 
1.4 According to the explanatory memorandum, undertakings are not authorised to refuse payments in 
cash, which will always have to be accepted as euro banknotes and coins are the only legal tender in the euro area.  
1.5 The legislator understands that the mandatory provis ion of an electronic means of payment can bring 
extra costs for undertaking s, especially for the smallest ones , as they carry out many  low value 
transactions  and less commonly use electronic means of payment . For that reason, the explanatory 
memorandum states that micro- companies and natural persons that meet the criteria for micro-
companies will be entitled to a 120% tax deduction for the costs incurred or borne in order to provide 
consumers an electronic means of payment
8. ’Micro-companies ’ are define d as small companies with 
legal personality which are not subsidiaries or parent companies and which do not exceed one of the following criteria on the balance sheet date for the last completed financial year: an annual average 
number of employees  of 10; an annual turnover excluding value added tax  of a maximum of EUR 
700,000; or a balance sheet total  of a maximum of EUR 350 ,000
9.  
 
2. General observations  
Role of electronic payments and cash in society, and legal tender status of euro banknotes and coins  
2.1 The ECB notes that the introduction of a mandatory requirement for undertakings t o provid e an 
electronic means of payment to  consumers alongside cash  will ensure that consumers have a choice 
when making payments at the premises of undertakings . Even though, as noted in the explanatory 
memorandum,  Belgians make considerably fewer  bank  card or mobile payments as compared with 
consumers in other European countries, the changing reality is that electronic payment instruments 
are becoming increasingly common and important in everyday life . The ECB holds a positive view of 
further  innovation and development in the field of electro nic payment instruments and their continued 
spread in society10.  
2.2 Taking a common European approach for payments  is important , particularly  for Member States that 
have adopted the euro as their  currency. The Single Euro Payments Area makes it possible for 
residents of euro area Member States to  make payments  in other euro area Member States as easily 
as they are accustomed to do in their home Member States . In this respect, electronic means of 
payment in the form of  purely  national  card schemes  or mobile payment solutions  that are not 
available to non- permanent residents  would be a step back .   
 
6  Article I. 9, 2° Code of Economic La w, which transposes  Article 4(11) of Directive (EU) 2015/2366 of the European 
Parliament and of the Council of 25 November 2015 on payment services in the internal market , amending Directives 
2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC  
(OJ L 337, 23.12.2015, p. 35) . 
7  See pages  4 and 5 of the explanatory memorandum of the draft law . 
8  See page 3 of the explanatory memorandum of the draft law . 
9  As referred to in A rticle 1:25 Code for Companies and Associations.  
10  See paragraph 2.2 of Opinion CON/2020/21 and paragraph 2.3 of Opinion CON/2021/18 . All ECB opinions are 
published on EUR -Lex. 
ECB -PUBLIC  
3 2.3 Cash continues to play a unique and important role  in society, as certain groups , such as the elderly, 
immigrants, the disabled, socially vulnerable citizens and marginalised people,  are less familiar with 
or even unable to use electronic means of payment . For these groups , cash is and continues to be 
an essential payment method to meet their daily needs. T here are other  legitimate reasons to pay in 
cash rather than with an electronic payment instrument. Cash is widely accepted, fast and facilitates 
control over the payer’s spending. Moreover, it  is the only payment instrument that allows citizens to 
settle a transaction instantly and in central bank money. Lastly, cash has the advantage that it is not 
affected in the event of a disturbance in the electronic payment system and possess es therefore an 
important  back -up function.11  
2.4 Belgium is a member of the euro area and as Union law regulates the legal tender status of euro 
banknotes and coins, the Union framework applicable to the legal tender status of euro banknotes 
and coins  is directly applicable in Belgium.  
2.5 Under the T reaty , the European System of Central Banks has the basic task of promoting the smooth 
operation of payment systems12, and the ECB has the exclusive right to authorise the issue of euro 
banknotes within the U nion13. The euro banknotes issued by the ECB and the national central banks 
of the euro area are the only banknotes with legal tender status within the euro area14.  
2.6 The concept of ‘legal tender’ of a means of payment denominated in a currency unit has bee n 
considered by the Court of Justice of the European Union. In particular, the Court has clarified that 
‘legal tender’ signifies that this specific means of payment cannot generally be refused in settlement 
of a debt, denominated in the same currency unit at its full face value, with the effect of discharging 
the debt. In clarifying the concept of ‘legal tender’ under Union law, the Court has taken into 
consideration Commission Recommendation 2010/191 of 22 March 2010 on the scope and effects 
of legal tender of euro banknotes and coins15, which provides useful guidance for the interpretation 
of the relevant provisions of Union law. Point 1 of Recommendation 2010/191 states that, where a 
payment obligation exists, the legal tender of euro banknotes and coins should imply  (a) mandatory 
acceptance of those banknotes and coins; (b) their acceptance at full face value; and (c) their power to discharge from payment obligations. According to the Court, this shows that the concept of ‘legal 
tender’ encompasses, inter  alia, an obligation in principle to accept banknotes and coins denominated 
in euro for payment purposes
16.  
2.7 Insofar as it allows  Union legislature to lay down the measures necessary for the use of the euro as 
the single currency, the Court clarified that Article 133 of the Treaty empowers the Union legislature 
alone to specify the legal rules governing the status of legal tender accorded to banknotes and coins 
denominated in euro, insofar as that is necessary for the use of the euro as the single currency.  Such 
exclusive competence precludes any competence on the part of the Member States in the matter, 
 
11  See paragraph 2.4 of Opinion CON/2017/8 , paragraph 2.1 of Opinion CON/2019/41,  paragraph 9.2.1 of Opinion 
CON/2020/13 , paragraph 2.3 of Opinion CON/2020/21 , paragraph 7.2.1 of Opinion CON/2021/9  and paragraphs  2.1 
and 2.3 of Opinion CON/2021/18.  
12  Article 127(2) TFEU and Article 3.1 of the Statute of the European System of Central Banks and of the European 
Central Bank (hereinafter the ‘ Statute of the ESCB’ ). 
13  First sentence of Article 128(1) TFEU and first sentence of Article 16 of the Statute of the ESCB.  
14  Third sentence of Article 128(1) TFEU and third sentence of Article 16 of the Statute of the ESCB.  
15  OJ L 83, 30.3.2010, p. 70.  
16  See judgment of the Court of Justice of 26 January 2021, Hessischer Rundfunk , C-422/19 and C -423/19, 
ECLI:EU:C:2021:63, paragraphs 46 to 49.  
ECB -PUBLIC  
4 unless they have been empowered by the Union to do so or for the implementation of Union acts17. 
2.8 However, the Court further clarified that the status of legal tender calls only for acceptance in principle 
of banknotes and coins denominated in euro as a means of payment, not for absolute acceptance. The Union’s exclusive competence in matters of monetary policy is without prejudice to the 
competence of the Member States whose currency is the euro to regulate the procedures for settling 
pecuniary obligations, which do not affect the principle that, as a general rule, it must be possible to 
discharge a payment obligation in cash
18. 
Preferential tax treatment f or the costs of implementing the requirement to provide electronic means 
of payment  
2.9 The ECB acknowledges that the  practical implementation of the draft law entails  costs in relation to 
the acceptance of electronic payments and the use of services offered by commercial entities under 
market conditions . These costs include , but are not limited to,  fees in relation to individual payment  
transactions  consisting of a fixed fee and/ or ad valorem percentage per transaction,  fees for the 
purchase or rental  of payment terminals , as well as periodic  fees for payment service providers . These 
costs m ay have a more substantial impact on small undertakings. Assuming stable revenues, the 
increase in costs for payment acceptance would lead to a decrease of profitability.  
2.10 However , it is noted  that, according to the explanatory memorandum,  every micro- company will be 
able to benefit from a 120% tax deducti on in respect of its costs, including those micro -companies 
that provided an electronic means of payment to consumers before the coming into force of the draft 
law.  
2.11 In this regard, while the  draft law ensures that undertakings must not refuse payments in cash,  the 
tax deduction for undertakings  with respect to the cost of offering an electronic means of payment to 
consumers should not be designed  in such a way as to give rise to an incentive for these undertakings  
to persuade consumers to favour electronic means of payment.  
 
This opinion will be published on EUR -Lex. 
 
 
Done at Frankfurt am Main, 22 December 2021.  
 
[signed]  
 
The President of the ECB  
Christine  LAGARDE  
 
17  See judgment of the Court of Justice of 26 January 2021, Hessischer Rundfunk , C-422/19 and C -423/19, 
ECLI:EU:C:2 021:63, paragraphs 50 to 52.  
18  See judgment of the Court of Justice of 26 January 2021, Hessischer Rundfunk, C -422/19 and C -423/19, 
ECLI:EU:C:2021:63, paragraphs 55 to 56 .