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 Penal Code and the Code of Criminal Procedure (CON/2001/16)
Date: 2001-06-28
Institutions: European Central Bank
Subjects: Luxembourg, accession to an agreement, counterfeiting, criminal law, criminal proceedings, euro, fine, international convention, money, penal code

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 Penal 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 Counterfeiting

Currency,  signed  in  Geneva  on  20 April 1929  (hereinafter  referred  to  as  the  ‘Geneva

Convention’), and the Protocol thereto; and (2) modification of certain provisions of the Penal

Code 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  by

national authorities regarding draft legislative provisions1, as the draft Act contains provisions

concerning currency matters. 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. 

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 introduction

of 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  ECB

understands  that,  in  terms  of  the  first  Article  of  the  draft  Act,  Luxembourg  approves  the

Convention and its Protocol. However, the ECB notes that under Luxembourg law, in order to

bring  the  Convention  and  its  Protocol  into  force  in  Luxembourg,  this  approval  has  to  be

supplemented  by  deposit  of  the  ratifying  instrument  signed  by  the  Grand-Duke.  The  ECB

further  recalls  that  a  text  evidencing  the transposition  of the  Convention  and  its  Protocol  into

1
OJ L 189, 3.7.1998, p. 42.
2  OJ L 140, 14.6.2000, p. 1.

                                                          
Luxembourg 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 instigating 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. The

ECB  notes  that  apart  from  specific  provisions  of  the  draft  Act,  provisions  of  general

Luxembourg 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 to

be transmitted to the ECB not later than 29 May 2001 in accordance with article 11(2) of the

framework  Decision.  However,  as  far  as  the  offence  of  instigating  is  concerned,  the  present

wording  of  the  draft  Act  does  not  seem  to  make  this  offence  punishable  at  all.  There  is

furthermore no indication in the statement of reasons that such offences would be punishable on

the 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  for

counterfeiting 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 national

currency  units  of  Member  States  which  will  lose  their  status  as  legal  tender  with  the

introduction of the euro banknotes and coins. Indeed, the Luxembourg draft Act limits criminal

conduct to coins and banknotes that are legal tender in Luxembourg or in a foreign country or

whose issue is authorised by a law of a foreign State or by virtue of a provision having the force

of law in such a State. In accordance with Article 15(1) of Council Regulation (EC) No 974/98
of 3 May 1998 on the introduction of the euro3, banknotes and coins denominated in a national

currency  unit  lose  their  status  as  legal  tender  after  the  end  of  the  transitional  period.  In

Luxembourg, the end of the transitional period for Luxembourg and Belgian francs has been set

at 28 February 2002. However, any Luxembourg and Belgian francs remaining in the public’s

hands  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  credit

institutions  established  in  Luxembourg.  Similar  provisions  exist  in  the  other  Member  States

participating  in  the  euro  for  the  banknotes  and  coins  denominated  in  their  respective  national

currency units. The ECB shares the concern expressed in this respect by the Luxembourg State

Council in its opinion of 29 May 2001. It therefore considers that the draft Act should include

fraudulent  conduct  in  relation  to  the  old  banknotes  and  coins  since,  although  no  longer  legal

tender  themselves,  they  will  be  directly  exchangeable  with  euro  banknotes  and  coins.  The

3

OJ L 139, 11.5.1998 p. 1.

2

                                                          
principle  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 Act

should  provide  for  the  same  effective,  proportionate  and  dissuasive  criminal  penalties  as  for

offences  relating  to  banknotes  being  legal  tender.  Such  a  provision  should  be  formulated

sufficiently broadly in order to  also encompass 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  such

involvement  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  draft

Council Regulation laying down the measures necessary for the protection of the euro against

counterfeiting, 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 under

Article 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

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