Opinion of the European Central Bank of 8 October 2008 on a proposal for two Council Regulations concerning medals and tokens similar to euro coins (CON/2008/45)
Date: 2008-10-08
Institutions: European Central Bank
Subjects: EU trade mark, European symbol, consumer protection, drafting of EU law, euro

7.11.2008

EN

Official Journal of the European Union

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I

(Resolutions, recommendations and opinions)

OPINIONS

EUROPEAN CENTRAL BANK

OPINION OF THE EUROPEAN CENTRAL BANK

of 8 October 2008

on a proposal for two Council Regulations concerning medals and tokens similar to euro coins

(CON/2008/45)

(2008/C 283/01)

Introduction and legal basis

On 25 September 2008, the European Central Bank (ECB) received a request from the Council of the
European Union for an opinion on a proposal
for a Council Regulation amending Regulation (EC)
No 2182/2004 concerning medals and tokens similar to euro coins (hereinafter the ‘first proposed regu-
lation’) and a proposal for a Council Regulation amending Regulation (EC) No 2183/2004 extending to the
non-participating Member States the application of Regulation (EC) No 2182/2004 concerning medals and
tokens similar to euro coins (hereinafter the ‘second proposed regulation’) (hereinafter collectively referred to
as the ‘proposed regulations’) (1).

The ECB's competence to deliver an opinion is based on Article 123(4) of the Treaty establishing the
European Community for the first proposed regulation and on Article 105(4) of the Treaty for the second
proposed regulation, as it relates to currency matters. 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. General observations

By clarifying the specific elements of the designs on legal tender euro coins that should not be repro-
duced on medals and tokens that are similar to euro coins and establishing the criteria to be used by
the Commission when preparing an opinion on compliance with Regulation (EC) No 2182/2004 (2),
the first proposed regulation strengthens the protective provisions laid down in Regulation (EC)
No 2182/2004 against confusion and fraud relating to medals and tokens that could be mistaken for
euro coins. It also improves transparency in the Commission's decision-making process.

Since euro coins may circulate beyond the territories of the Member States that have adopted the euro,
having a certain degree of protection of euro coins in Member States which have not yet adopted the
euro is of importance with regards to activities, such as counterfeiting, that may impair their credibility
as legal tender.

(1) COM(2008) 514 final, Vol. I and Vol. II.
(2) OJ L 373, 21.12.2004, p. 1.

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2.

Specific observations

2.1. Similarity of the design appearing on the surface of medals and tokens

Compared to Article 2(c) of Regulation (EC) No 2182/2004, the new Article 2(1)(c) of the first
proposed regulation describes in more detail the designs or parts thereof appearing on the surface of
euro coins which may not be reproduced on medals and tokens. To enhance the protective character of
this provision, the ECB recommends including an express reference to the euro symbol and to the
terms ‘euro’ and ‘euro cent’
in the new Article 2(1)(c)(i). The ECB acknowledges that as currently
drafted, Article 2(1)(c)(i) does not exclude these terms or the euro symbol; however, expressly
mentioning them would contribute to clarifying the Commission's proposal and strengthening the
protective provisions. Indeed, the general public may be confused not only by a reproduction of the
terms ‘euro’, ‘euro cent’ or the euro symbol on medals or tokens, which is prohibited according to the
new Article 2(1)(a), but also by any design using elements that are similar to those terms and that
symbol.

2.2. Transparency in the decision-making process

According to the explanatory memorandum to the first proposed regulation, the Commission has been
working closely with the counterfeit coin experts referred to in the first paragraph of Article 4 of
Commission Decision 2005/37/EC of 29 October 2004 establishing the European Technical and Scien-
tific Centre (ETSC) and providing for coordination of technical actions to protect euro coins against
counterfeiting (1) when considering compliance with Regulation (EC) No 2182/2004 and considers that
this consultation should continue. However, the first proposed regulation only refers to ‘consultation
with the Member States’ in the third recital. As a result, the ECB recommends that an express reference
to the counterfeit coin experts be included in the new Article 2(2), in particular since one of the main
purposes of the first proposed regulation is to make the decision-making process more transparent.

2.3. Derogations by authorisation

The new Article 4 concerning derogations by authorisation does not provide for any procedure by
which economic operators may request such derogation from the protective provisions laid down in
Article 2. The ECB considers that appropriate wording should be added in this respect.

In the same vein, the decision-making process would be even more transparent if the first proposed
regulation included the conditions under which the Commission may authorise a derogation. More
specifically, the new Article 4 is vague as regards the ‘controlled conditions of utilisation’ under which
medals and tokens may bear the terms ‘euro’ or ‘euro cent’ or the euro symbol and when ‘no risk of
confusion exists’. In order to enhance transparency and improve legal certainty, the new Article 4
would benefit from more comprehensive and/or illustrative wording on the general criteria to be
applied by the Commission when authorising a derogation.

2.4. Application of the first proposed regulation to Monaco, San Marino and the Vatican City

Monetary agreements are already in place (i) between France, on behalf of the European Community,
and Monaco; and (ii) between Italy, on behalf of the European Community, and San Marino and the
Vatican City. Under these agreements, Monaco, San Marino and the Vatican City are entitled to issue
euro coins which have the status of legal tender and have specific artistic features on their national
side. Because the visual characteristics of these euro coins are different from the visual characteristics of
the euro coins issued by each of the Member States that have adopted the euro, the euro coins issued
by Monaco, San Marino and the Vatican City should also benefit from the protective provisions laid
down in the first proposed regulation. Consequently, the respective monetary agreements and/or the
legislative provisions adopted pursuant to these monetary agreements should be amended so that the
content of the first proposed regulation, once adopted, also applies to Monaco, San Marino and the
Vatican City.

(1) OJ L 19, 21.1.2005, p. 73.

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2.5. Consultation of the ECB on the second proposed regulation

Unlike the first proposed regulation, the preamble to the second proposed regulation does not refer to
the ECB's opinion. In view of the fact that both proposed regulations fall within the ECB's fields of
competence, the preamble to the second proposed regulation should be amended to refer to the ECB's
opinion.

3. Drafting proposals

Where the above advice would lead to changes in the proposed regulations, drafting proposals are set
out in the Annex.

Done at Frankfurt am Main, 8 October 2008.

The President of the ECB

Jean-Claude TRICHET

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ANNEX

Drafting proposals

Text proposed by the Commission

Amendments proposed by the ECB (1)

Amendment 1
Article 2(1)(c)(i) mentioned in Article 1 of the first proposed regulation

‘(i) any design, or parts thereof, appearing on the surface
of euro coins, including in particular the twelve stars of
the geographical
the European Union, the image of
representation and the numerals, in the way depicted
on euro coins, or’

‘(i) any design, or parts thereof, appearing on the surface of
euro coins, including in particular the terms “euro”,
“euro cent”, the euro symbol, the twelve stars of the
European Union, the image of the geographical repre-
sentation and the numerals,
in the way depicted on
euro coins, or’

Justification — See paragraph 2.1 of the opinion

Amendment 2
Article 2(2) mentioned in Article 1 of the first proposed regulation

The Commission shall be competent to deliver an

‘2.
opinion as to:’

‘2.
The Commission, after having consulted the coun-
terfeit coin experts referred to in Article 4 of Commis-
sion Decision 2005/37/EC of 29 October 2004 estab-
lishing the European Technical and Scientific Centre
(ETSC) and providing for coordination of technical
actions to protect euro coins against counterfeiting (2),
shall be competent to deliver an opinion as to:’

Justification — See paragraph 2.2 of the opinion

Amendment 3
Preamble to the second proposed regulation

‘Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament, Having regard to the opinion of the European Parliament,

‘Having regard to the proposal from the Commission,

Whereas:’

Having regard to the opinion of the European Central
Bank,
Whereas:’

Justification — See paragraph 2.5 of the opinion

(1) Bold in the body of the text indicates where the ECB proposes inserting new text.
(2) OJ L 19, 21.1.2005, p. 73.