Opinion of the European Central Bank of 20 December 2000 at the request of the Council of the European Union pursuant to Article 105(4) of the Treaty establishing the European Community on a proposal for a Council Regulation on the protection of the euro against counterfeiting (CON/00/20)
Date: 2000-12-20
Institutions: European Central Bank
Subjects: Council of the European Union, drafting of EU law, fraud, industrial counterfeiting, monetary union, money

C 19/18

EN

Official Journal of the European Communities

20.1.2001

EUROPEAN INVESTMENT BANK

OPINION OF THE EUROPEAN CENTRAL BANK

of 20 December 2000

at the request of the Council of the European Union pursuant to Article 105(4) of the Treaty
establishing the European Community on a proposal for a Council Regulation on the protection of
the euro against counterfeiting

(CON/00/20)

(2001/C 19/09)

1. On 11 September 2000 the European Central Bank (ECB) received a request from the Council of the
European Union for an opinion on Commission proposal COM(2000) 492 final of 26 July 2000 for a
Council Regulation on the protection of the euro against counterfeiting (hereinafter referred to as the
(cid:145)Commission proposal(cid:146)). This opinion is based both on the text of the Commission proposal and on
the text of the draft Regulation as it stands following the discussions in the Council working group on
the fight against fraud (hereinafter referred to as the (cid:145)draft Regulation(cid:146)).

2. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the
European Community (hereinafter referred to as the (cid:145)Treaty(cid:146)). In accordance with the first sentence of
Article 17.5 of the Rules of Procedure of the ECB, this opinion has been adopted by the Governing
Council of the ECB.

3. In general, the ECB welcomes the Commission proposal. There is a need within the Community to
ensure an homogeneous and transparent regime to deal with matters relating to euro counterfeiting
and to impose certain obligations on concerned authorities of the Member States as well as on credit
institutions and entities professionally dealing with cash. The Commission proposal
is particularly
welcome because it endeavours to achieve a sufficient degree of harmonisation, to provide for public
awareness and to be of general application in all Member States. The Commission proposal will
facilitate the processing of certain data with regard to euro counterfeiting and foster cooperation
within the European Union as well as with third countries.

4. The ECB supports the view presented in the explanatory memorandum of the Commission proposal
that as regards the strategic and operational aspects of the combat against euro counterfeiting, the
legal framework of Europol should be amplified.

5. The ECB leaves it to the Council to decide on the appropriate legal basis for the draft Regulation. In
this context, however, the ECB can support the approach of the Council Presidency of dividing the
text of this initiative into two different legal acts, which are to be adopted one within the Community
legal framework (first pillar) and the other within the framework of Title VI of the Treaty on European
Union (third pillar).

This opinion focuses on the text to be adopted within the Community legal framework.

6. The ECB welcomes the fact that the measures stipulated in the draft Regulation will apply also in
relation to the future euro banknotes and coins which have not yet been issued for circulation as legal
tender in line with Article 5 of the Council Framework Decision of 29 May 2000 on increasing
protection by criminal penalties and other sanctions against counterfeiting in connection with the
introduction of the euro (1).

(1) OJ L 140, 14.6.2000, p. 1.

20.1.2001

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Official Journal of the European Communities

C 19/19

7. The ECB takes note of the fact that certain provisions of the draft Regulation will also apply to
unauthorised banknotes, which are defined as: (i) notes produced with the use of lawful facilities or
equipment, but in violation of the provisions in accordance with which the relevant authorities may
issue currency; or (ii) notes which have been put into circulation in violation of the conditions in
accordance with which the relevant authorities may issue currency. According to the view of the ECB,
such banknotes, even though produced or put into circulation in an illegal way, are not counterfeits
and cannot be distinguished from genuine ones. Since the draft Regulation is intended to facilitate the
prevention of counterfeiting, its provisions can apply to unauthorised banknotes only to a limited
extent.

8. The draft Regulation foresees access for relevant national authorities, Europol and the Commission to
the technical and statistical information held by the ECB. This information, in particular technical
information, will be highly confidential. The ECB organises access to such information under its own
legal framework. The framework obliges the ECB to communicate without delay the establishment of
new counterfeit classes to national authorities, to Europol and to the Commission, in order for them
to exercise their tasks. Given the highly confidential nature of the detailed technical information, by
means of which genuine banknotes can be distinguished from counterfeits, the ECB needs to be able
to condition or require certain confidentiality arrangements for such access, which in any case can
only be granted subject to the respective competencies of parties in need of such information.

9. The draft Regulation should ensure that the National Analysis Centres (NACs) have the possibility to
examine and analyse all suspected counterfeits. As a rule, all counterfeits should be sent to the NACs;
only in the case of specific circumstances (e.g. major amounts of seized counterfeits), examination by
the NACs on the spot could be foreseen. This would ensure that the analysis of specific defects of
counterfeits can be performed, with the specialised equipment and in relation to the widest possible
number of samples.

10. The explanatory memorandum of the Commission proposal foresees the establishment of coordination
procedures between the ECB, Europol and the Commission for the implementation of the draft
Regulation. The ECB welcomes this initiative.

11. The ECB understands that the issue of compulsory installation of technical devices impeding the
reproduction of banknotes in colour copiers and machinery capable of graphic reproduction is still
under consideration. The ECB reiterates its concern regarding this issue as expressed in its Recom-
mendation of 7 July 1998 regarding the adoption of certain measures to enhance the legal protection
of euro banknotes and coins (1).

12. This opinion shall be published in the Official Journal of the European Communities.

Done at Frankfurt am Main on 20 December 2000.

The President of the ECB

Willem F. DUISENBERG

(1) OJ C 11, 15.1.1999, p. 13.