EN
OPINION OF THE EUROPEAN CENTRAL BANK
of 28 June 2001
at the request of the Luxembourg Ministry of Finance on a draft Act concerning
1. approval of the International Convention for the Suppression of Counterfeiting Currency,
signed in Geneva on 20 April 1929, and the Protocol thereto; and
2. modification of certain provisions of the Pe nal Code and the Code of Criminal Procedure
(CON/2001/16)
1. On 7 May 2001 the European Central Bank (ECB) received a request from the Luxembourg
Ministry of Finance for an opinion on a draft Act (hereinafter referred to as the draft Act)concerning (1) approval of the International Convention for the Suppression of CounterfeitingCurrency, signed in Geneva on 20 April 1929 (hereinafter referred to as the GenevaConvention), and the Protocol thereto; and (2) modification of certain provisions of the PenalCode and the Code of Criminal Procedure.
2. The ECBs competence to deliver an opinion is based on Article 2 of Council
Decision (EC) 98/415 of 29 June 1998 on the consultation of the European Central Bank bynational authorities regarding draft legislative provisions
1, as the draft Act contains provisions
concerning currency matters. In accordance with the first sentence of Article 17.5 of the Rulesof Procedure of the ECB, this opinion has been adopted by the Governing Council of the ECB.
3. Under Article 2 of the Council framework Decision of 29 May 2000 on increasing protection by
criminal penalties and other sanctions against counterfeiting in connection with the introductionof the euro (hereinafter referred to as the framework Decision)
2, the Member States that have
not yet done so undertake to accede to the Geneva Convention and its Protocol. The ECBunderstands that, in terms of the first Article of the draft Act, Luxembourg approves theConvention and its Protocol. However, the ECB notes that under Luxembourg law, in order tobring the Convention and its Protocol into force in Luxembourg, this approval has to besupplemented by deposit of the ratifying instrument signed by the Grand-Duke. The ECBfurther recalls that a text evidencing the transposition of the Convention and its Protocol into
                                                          
1OJ L 189, 3.7.1998, p. 42.
2 OJ L 140, 14.6.2000, p. 1.
2Luxembourg law has to be transmitted to the ECB not later than 29 May 2001 in accordance
with Article 11(2) of the framework Decision.
4. Article 3(2) of the framework Decision requires each Member State to take the necessary
measures to ensure that participating in and inst igating the conduct referred to in Article 3(1),
and attempting the conduct referred to in points (a) to (c) of Article 3(1), are punishable. TheECB notes that apart from specific provisions of the draft Act, provisions of generalLuxembourg criminal law are also relevant in so far as they provide that attempts to commit, or
the commission of the said offences, are punishable. These general provisions therefore have tobe transmitted to the ECB not later than 29 May 2001 in accordance with article 11(2) of theframework Decision. However, as far as the offence of instigating is concerned, the presentwording of the draft Act does not seem to make this offence punishable at all. There isfurthermore no indication in the statement of reasons that such offences would be punishable onthe grounds of any provision of general Luxembourg criminal law.
5. Furthermore, the present draft Act does not foresee a specific provision on the liability of legal
persons. The ECB recalls that under Article 8 of the framework Decision, each Member State
shall take the necessary measures to ensure that legal persons can also be held liable forcounterfeiting offences.
6. The ECB notes that at present the draft Act does not ensure that conduct referred to in Articles 3
and 4 of the framework Decision is punishable if it relates to banknotes and coins in nationalcurrency units of Member States which will lose their status as legal tender with theintroduction of the euro banknotes and coins. Indeed, the Luxembourg draft Act limits criminalconduct to coins and banknotes that are legal tender in Luxembourg or in a foreign country orwhose issue is authorised by a law of a foreign State or by virtue of a provision having the forceof law in such a State. In accordance with Article 15(1) of Council Regulation (EC) No 974/98of 3 May 1998 on the introduction of the euro
3, banknotes and coins denominated in a national
currency unit lose their status as legal tender after the end of the transitional period. InLuxembourg, the end of the transitional period for Luxembourg and Belgian francs has been setat 28 February 2002. However, any Luxembourg and Belgian francs remaining in the publicshands after that date will continue to be exchanged after 28 February 2002, without charge,against euro notes and coins at the Banque centrale du Luxembourg (BCL) and certain creditinstitutions established in Luxembourg. Similar provisions exist in the other Member Statesparticipating in the euro for the banknotes and coins denominated in their respective nationalcurrency units. The ECB shares the concern expressed in this respect by the Luxembourg StateCouncil in its opinion of 29 May 2001. It therefore considers that the draft Act should includefraudulent conduct in relation to the old banknotes and coins since, although no longer legaltender themselves, they will be directly exchangeable with euro banknotes and coins. The
                                                          
3OJ L 139, 11.5.1998 p. 1.
3principle of legality indeed requires the inclusion of such an express provision. Taking into
account the ease with which old banknotes can be converted into euro banknotes, the draft Actshould provide for the same effective, proportionate and dissuasive criminal penalties as foroffences relating to banknotes being legal tender. Such a provision should be formulatedsufficiently broadly in order to also encomp ass the possible scenario whereby euro banknotes
were no longer legal tender.
7. The ECB suggests that the fines mentioned in Articles 10, 178 and 214, currently expressed in
Luxembourg francs, should be expressed in euro.
8. The ECB further notes that the present draft Act does not include any provisions on the
involvement of the BCL in the fight against counterfeiting. Specific provisions on suchinvolvement would be desirable to facilitate  the fulfilment of obligations undertaken by
Luxembourg under Article 14 of the Geneva Convention and Articles 4 and 5 of the draftCouncil Regulation laying down the measures necessary for the protection of the euro againstcounterfeiting, which is about to be adopted.
9. This opinion does not cover Articles 174, 175, 184, and 187 of the Penal Code, which are
introduced by the draft Act, as these Articles do not fall within the competence of the ECB.
10. This opinion shall be without prejudice to the obligation of Luxembourg to transmit to the ECB
the text of the provisions transposing into Luxembourg law the obligations imposed on it underArticle 11(2) of the framework Decision.
11. The ECB confirms that it has no objection to publication of this opinion by the competent
national authorities at their discretion.
Done at Frankfurt am Main on 28 June 2001.
The President of the ECB
[signed]
Willem F. DUISENBERG