Opinion of the European Central Bank of 16 April 2004 at the request of the Council of the European Union on a proposal for a Council regulation concerning medals and tokens similar to euro coins (COM(2004) 39 final)(CON/2004/13)
Date: 2004-04-16
Institutions: European Central Bank
Subjects: EU trade mark, European symbol, consumer protection, drafting of EU law, euro

12.5.2004

EN

Official Journal of the European Union

C 134/11

OPINION OF THE EUROPEAN CENTRAL BANK

of 16 April 2004

at the request of the Council of the European Union on a proposal for a Council regulation
concerning medals and tokens similar to euro coins

(COM(2004) 39 final)

(CON/2004/13)

(2004/C 134/07)

1. On 16 February 2004 the European Central Bank (ECB)
the European
received a request
Union for an opinion on a proposal for a Council regu-
lation concerning medals and tokens similar to euro coins
(hereinafter the ‘proposed regulation’).

from the Council of

2. The ECB's competence to deliver an opinion is based on
the Treaty establishing the European
Article 123(4) of
Community.
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.

in this

tion and sale, and the importation and distribution for sale
or other commercial purposes of medal and tokens that
have certain visual characteristics or are of a specified size
similar to euro coins. The ECB supports the need for
further action at Community level
field and
welcomes the fact that the Commission has chosen to
regulate by means of a regulation. This approach will
ensure the harmonised application of the protective rules
laid down in the proposed regulation throughout the Euro-
pean Union and guarantee a sufficiently level playing field
for all economic agents engaged in the activity of produ-
cing, distributing, importing or selling medals and tokens.
Furthermore, the ECB considers that the adoption of the
proposed regulation is an appropriate measure to ensure
the integrity of euro coins as a means of payment.

General considerations

the euro symbol

3. According to the Commission's explanatory memorandum
the proposed regulation regulates the use of the terms
(IJ) on
‘euro’ and ‘euro cent’ and of
metallic objects having the appearance and/or technical
properties of coins (medals and tokens) and defines the
levels of similarity to euro coins that should be prohibited
for medals and tokens. The purpose of the proposed regu-
lation is to protect the general public against fraud and
confusion relating to euro coins as the general public
could believe that medals and tokens have legal tender
status if the words ‘euro’ or ‘euro cent’ or the euro symbol
appear on them, and medals and tokens could be fraudu-
if their size and
lently used in coin-operated machines,
properties are similar to those of euro coins. At the same
time the proposed regulation establishes a level playing
field for producing such medals and tokens. The ECB
agrees with the objectives underlying the proposed regu-
lation and shares the concerns regarding the risks of confu-
sion and/or fraud that medals and tokens similar to euro
coins raise.

Detailed considerations

5. The proposed regulation starts by laying down a set of
definitions. The ECB notes that the definition of ‘medals
and tokens’ laid down in Article 1(c) of the proposed regu-
lation improves upon the definition in Article 1(c) of the
Recommendation. In particular, the new definition specifi-
cally excludes from its scope blanks intended for striking
it now includes medals and tokens
coins. Furthermore,
that have the technical properties of coins and not just
those which look like coins.
the ECB
welcomes the accuracy and the broad scope of application
of
‘medals and tokens’ which
provides legal certainty and will enable the effective appli-
cation of the proposed regulation.

the new definition of

In this respect,

4. The ECB understands that the proposed regulation results
from the Commission's assessment of the need for further
action at Community level, as provided for in the final
sentence of Article 3 of Commission Recommendation
2002/664/EC of 19 August 2002 concerning medals and
tokens similar to euro coins (hereinafter the ‘Recommenda-
tion’) (1). The proposed regulation will prohibit the produc-

(1) OJ L 225, 22.8.2002, p. 34.

6. With reference to the list of designated authorities in
Annex II although the ECB acknowledges that it is likely
that the national designated authorities will be the Member
States' authorities responsible for minting coins, the ECB
considers that Member States might wish to designate
different authorities for the purposes of the proposed regu-
lation. The ECB therefore proposes that the Member States
indicate their ‘designated authorities’ once the proposed
regulation has been adopted.

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Official Journal of the European Union

12.5.2004

7. The ECB welcomes the definition of

‘reference band’
included in Article 1(g) of the proposed regulation by
reference to the meaning given in Section 1 of Annex III.
Section 1(a) defines the reference band for the size of
medals and tokens as the ‘set of combinations between the
values for diameter and values for edge height included in
the reference range for diameter and the reference range
for edge height respectively’. Section 1(b) and (c) provide
the technical specifications of
the ‘reference range for
diameter’ and the ‘reference range for edge height’. The
‘reference
ECB considers that
band’ in the proposed regulation enhances legal certainty
in the application of the proposed regulation as it lays
down the technical specifications for determining prohib-
ited medals and tokens and therefore enables the general
to be
in particular manufacturers and retailers,
public,
aware of their legal obligations when producing and/or
selling medals and tokens.

including a definition of

9. Article 3 of the proposed regulation establishes exemptions
from the protective measures analysed above. The ECB
notes that this provision covers medals and tokens which
cannot be mistaken for euro coins either because their size
is outside the reference band, even though they bear the
terms ‘euro’ or ‘euro cent’ or the euro symbol without an
associated nominal value, or where their size is inside the
reference band, because of their shape or composition. The
ECB understands that such medals and tokens are consid-
ered to raise only very marginal risks of confusion and
should be permitted.

10. Article 4 of the proposed regulation provides for a deroga-
tion system by means of authorisations granted by the
designated authorities in the Member State where a medal
or token is produced or first imported, or the Commission
in the case of requests from third countries. The ECB notes
that the authorisations granted pursuant to Article 4(1)
would allow the use of the terms ‘euro’ or ‘euro cent’
under controlled conditions of utilisation in cases where
no risk of confusion exists. However, Article 4(1) does not
provide for specific derogations to authorise the use of the
euro symbol. The ECB sees no justifiable reason for differ-
entiating between the use of the euro symbol and that of
the terms ‘euro’ and ‘euro cent’. Furthermore, in relation to
Article 4(1) the Commission's explanatory memorandum
expressly refers to specific derogations from Article 2(a)
when, inter alia, the use of ‘the…euro symbol is practical’.
The ECB therefore recommends including a reference to
the euro symbol in Article 4(1) of the proposed regulation.
The ECB also understands that where such an authorisa-
tion is granted the economic agent concerned within a
Member State must be clearly identifiable on the surface of
the medal or token and the indication ‘Not legal tender’
must be stamped on the obverse or the reverse of the
medal or token. In this regard, the ECB would recommend
that Article 4(1) include a reference to the minimum size
of the words ‘Not legal tender’, as in the absence of such a
specification there is a risk that barely legible lettering
could be used. Furthermore, the ECB notes that the author-
isations to be awarded under Article 4(2) concern medals
and tokens whose size is inside the reference band,
provided that no risk of confusion exists and that condi-
tions on the combinations of diameter and edge height
and the combinations of diameter and metal properties are
met. The ECB does not have any objections to the system
of derogation established in Article 4 of the proposed
regulation, as the medals and tokens authorised under it
must abide by stringent visual or physical conditions so as
to eliminate any possible risk of confusion.

8. The ECB welcomes the protective provisions laid down in
Article 2 of the proposed regulation. They cover situations
where, either because of their appearance or size, medals
or tokens could be mistaken for authentic euro coins. In
particular, the ECB notes that a clear distinction is made in
Article 2(a) and (b) between medals and tokens bearing the
terms ‘euro’, ‘euro cent’ or the euro symbol and those that
simply fall within the reference band,
regardless of
whether they bear such terms or symbol. In this regard,
the prohibition of production and sale and of importation
and distribution for sale or other commercial purposes of
both categories of medals and tokens appears sufficient to
prevent any risk of confusion among the general public.
These same considerations on preventing any risk of
confusion apply to the prohibition in Article 2(c) of the
proposed regulation regarding medals and tokens bearing
any design on their surface that is ‘similar to any of the
national obverse designs or to the common reverse face of
euro coins, or being identical or similar to the edge design
of the 2-euro coin’. The ECB notes, however, that the refer-
ence to a ‘symbol close to the euro symbol combined with
as
an indication of nominal value’,
established in
Article 2(b) of the Recommendation,
is not included in
the proposed regulation. The ECB would
Article 2 of
recommend retaining this reference in the proposed regu-
lation as the use of such symbols could also confuse the
general public. The ECB believes that including this refer-
ence would broaden the scope and enhance the effective-
ness of the protective provisions.

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the designated Member State authority or

11. The ECB notes that Article 4(3) of the proposed regulation
the
gives
Commission, as the case may be,
the competence to
declare whether a design is similar to any of the national
obverse designs or to the common reverse face of euro
coins, or to the edge design of the 2-euro coin. While
welcoming the content of this provision, the ECB would
like to draw the Council's attention to the fact that it does
not constitute a derogation to the protective provisions
laid down in Article 2 of the proposed regulation but
rather a declaratory power attributed either to the Member
States' authorities or the Commission. In the interests of
legal coherence and certainty in the application of the
proposed regulation, the ECB would recommend moving
the third paragraph of Article 4 to Article 2.

12. The ECB notes that Article 5(2) of the proposed regulation
contains a transitional provision allowing medals and
tokens issued prior to the entry into force of the proposed
regulation but not complying with its provisions
to
continue to be used until the end of 2012, at the latest.

The ECB understands this provision as being necessary to
fulfil the legitimate expectations of the proprietors and/or
holders of such medals and tokens.

13. The ECB notes that Article 6 of the proposed regulation
obliges the Member States to lay down effective, propor-
tionate and dissuasive laws, regulations and administrative
provisions on the penalties applicable to infringements of
the proposed regulation by 1 January 2005. The ECB
welcomes this provision, as the adoption of a legal frame-
work for sanctions at Member State level is indisputably
the
necessary to guarantee the effective application of
provisions of the proposed regulation.

Done at Frankfurt am Main, 16 April 2004.

The President of the ECB

Jean-Claude TRICHET