Opinion of the European Central Bank of 30 April 2010 on a draft law on restoring fairness in taxation and addressing tax evasion (CON/2010/36)
Date: 2010-04-30
Institutions: European Central Bank
Subjects: Greece, electronic document, invoicing, money, national law, payment system, tax evasion

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 April 2010 

on a draft law on restoring fairness in taxation and addressing tax evasion 

(CON/2010/36) 

Introduction and legal basis 

On  26  March  2010  the  European  Central  Bank  (ECB)  received  a  request  from  the  Greek  Ministry  of 

Finance  for  an  opinion  on  a  draft  law  on  restoring  fairness  in  taxation  and  addressing  tax  evasion 

(hereinafter the ‘draft law’). 

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning of the European Union and the second and fifth indents of Article 2(1) of Council Decision 

98/415/EC  of  29  June  1998  on  the  consultation  of  the  European  Central  Bank  by  national  authorities 
regarding  draft  legislative  provisions1,  as  the  draft  law  relates  to  means  of  payment  and  payment  and 

settlement systems. 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.  

Purpose of the draft law 

Among  other  things,  the  draft  law  is  intended  to  progressively  establish  the  use  of  electronic  invoices. 

Article 20 of the draft law introduces specific restrictions on cash payments in favour of other means of 

payment,  in  order  to  ensure  the  genuineness  of  transactions  and  underlying  documents  and  to  enable 

direct cross-checking of such transactions. 

Article  20(2)  of  the  draft  law  states  that,  for  transactions  between  businesses,  invoices  and  equivalent 

documents  with  a  value  exceeding  EUR  3 000  shall  be  paid  through  business  bank  accounts  or  by 

cheques  drawn  on  and  paid  to  such  accounts.  These  accounts  will  be  connected  to  a  secure  electronic 

database held by the Ministry of Finance’s General Secretariat for Information Systems (GSIS). Banking 

secrecy  is  lifted  for  this  purpose  and  banks  may  not  charge  fees  for  the  operation  of  such  business 

accounts. 

1 

OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
 
                                                      
Under Article 20(3) of the draft law, invoices with a value exceeding EUR 1 500 for the sale of goods or 

services to consumers shall be paid through a bank with debit cards, credit cards or cheques, and the use 

of cash will not be allowed. 

2.   General observations 

2.1   Consultation at an appropriate stage 

The Government submitted the draft law to the Greek Parliament on 24 March 2010. The Ministry 

of Finance consulted the ECB on 26 March 2010, requesting that the opinion be given as early as 

possible.  The  draft  law  was  adopted  by  the  Greek  Parliament  on  20  April  2010.  In  cases  of 

particular urgency that do not allow for a normal consultation period, the consulting authority may 

indicate urgency in the consultation request and ask for a shorter time limit for the ECB’s opinion 

to be adopted. This does not alter the national authorities’ duty under Articles 127(4) and 282(5) of 

the Treaty to consult the ECB on draft legislative provisions falling within its fields of competence 

in due course of the legislative process. The second sentence of Article 4 of Decision 98/415/EC, 

states  that  the  ECB  must  be  consulted  ‘at  an  appropriate  stage’  in  the  legislative  process.  This 

implies that the consultation should take place at a point in the legislative process which affords the 

ECB  sufficient  time  to  examine  the  draft  legislative  provisions  and  to  adopt  its  opinion  in  all 

required language versions, and which enables the relevant national authorities to take the ECB’s 

opinion into  consideration before the provisions are adopted. Article 3(4) of  Decision 98/415/EC 

also  obliges  Member  States  to  suspend  the  adoption  process  for  draft  legislative  provisions, 

pending receipt of the ECB’s opinion. In the present case, the consulting authority did not give the 

ECB a specific time limit within which to submit its opinion and referred only to urgency on the 

grounds that Parliament would probably enact the draft law within two weeks from the date of its 

submission. As the circumstances invoked by the consulting authority do not constitute sufficient 

reason to justify extreme urgency, the ECB considers that the minimum consultation period of one 

month provided for in Article 3(1) of Decision 98/415/EC applies.  

2.2  Consistency of the draft law 

2.2.1  According  to  the  draft  law’s  explanatory  memorandum,  from  1  January  2011:  (i)  invoices  for 

transactions  between  businesses  or  between  businesses  and  the  State  with  a  value  exceeding 

EUR 3 000  will  only  be  acceptable  if  submitted  electronically,  and  (ii)  cash  payments  between 

businesses  or  between  businesses  and  consumers  with  a  value  exceeding  EUR  1 500  will  be 

considered illegal. However,  the  provisions  of the  draft law, i.e. Articles  20(2)-(3),  do not  clarify 

the  legal  consequences  of  non-compliance  with  the  rules.  In  addition,  in  Article  20(3)  it  appears 

that the EUR 1 500 threshold only applies to the sale of goods or services to consumers, and it is 

not explicitly stated that such transactions will be considered illegal. Moreover, the draft legislative 

provisions do not give any date for their entry into force. 

2 

 
 
2.2.2  For reasons of legal certainty, the ECB recommends that the draft law should be consistent with its 

explanatory memorandum. 

2.3   Limitations on payments in cash  

2.3.1  With regard to restrictions on payments in cash under Union law, recital 19 of Council Regulation 
(EC) No 974/98 of 3 May 1998 on the introduction of the euro2 states that ‘limitations on payments 

in notes and coins, established by Member States for public reasons, are not incompatible with the 

status  of  legal  tender  of  euro  banknotes  and  coins,  provided  that  other  lawful  means  for  the 

settlement  of  monetary  debts  are  available’.  The  third  sentence  of  Article  11  of  Regulation  (EC) 

No 974/98 states: ‘Except for the issuing authority and for those persons specifically designated by 

the national legislation of the issuing Member State, no party shall be obliged to accept more than 

50 coins in any single payment’. 

2.3.2  A  prohibition  of  payments  in  cash  of  a  certain  value  does  not  affect  the  legal  tender  status  of 
banknotes3 and is compatible with Union law4. However, in view of the legal tender status of euro 

banknotes, the ECB should be consulted on the proposed adoption of any similar measures, as such 

prohibitions should be subject to individual examination of the specific requirements and purposes 

of  the  legislative  provision  in  each  case.  In  this  respect,  the  ECB,  acknowledging  that  the  draft 

legislative  provisions  are  in  principle  compatible  with  Union  law,  has  the  following  specific 

observations. 

3.  

Specific observations 

3.1  As referred to in paragraph 2.3.1 above, limitations on payments in banknotes and coins established 

by Member  States for  public reasons  are  not incompatible with the status of legal tender of euro 

banknotes  and  coins,  provided  other  lawful  means  for  the  settlement  of  monetary  debts  are 

available. The ECB acknowledges that: (i) lawful means for the settlement of monetary debts, other 

than cash, are available in Greece; and (ii) ensuring the genuineness of transactions and underlying 

documents  and  enabling  direct  cross-checking  of  such  transactions,  as  referred  to  in  the 

explanatory  memorandum  to  the  draft  law,  qualify  as  public  reasons  within  the  meaning  of 
Regulation (EC) No 974/985. 

3.2  However,  limitations  on  payments  by  euro  banknotes  and  coins  should  be  proportionate  to  the 

objectives  pursued  and  should  not  go  beyond  what  is  necessary  to  achieve  such  objectives.  The 

2  
3  

4  
5  

OJ L 139, 11.5.1998, p. 1. 
The legal tender status of euro banknotes is laid down by Article 128(1) of the Treaty on the Functioning of the European 
Union and Article 16 of the Statute of the European System of Central Banks and of the European Central Bank. 
See paragraph 5 of Opinion CON/2002/24. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 
‘According to settled case-law, reliance by a national authority on the concept of public policy presupposes the existence 
… of a genuine and sufficiently serious threat to a fundamental interest of society’, Case C-349/06 Polat [2007] ECR I-
167, paragraph 34. 

3 

 
                                                      
ECB considers that the proposed thresholds of EUR 3 000 for business-to-business transactions (or 

between  businesses  and  the  State)  and  of  EUR  1 500  for  transactions  for  the  sale  of  goods  or 

services by businesses to consumers will effectively be limitations on cash payments. Any impact 

of the proposed limitations should be carefully weighed against the public benefits expected to be 

derived  from  them.  The  ECB  suggests  that  the  competent  authorities  should  assess  whether  the 

effects of these measures go beyond what is necessary for achieving the objective of ensuring the 

genuineness  of  transactions  and  underlying  documents  and  the  direct  cross-checking  of  such 

transactions,  taking  also  into  consideration  the  need  to  ensure  an  appropriate  level  of  consumer 

protection6. 

3.3  Finally, the draft law gives rise to a risk of legal uncertainty in the light of Article 452 of the Greek 

Penal Code on ‘refusal of cash’, according to which ‘Any person who refuses to accept payment in 

cash  legally  introduced  into  circulation  within  the  State  shall  be  punished  with  a  fine’.  In  this 

context, the ECB stresses the need to amend the draft law in order to ensure the consistency of the 

legal provisions governing the restrictions on payments in cash. 

This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 30 April 2010. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

6   As far as consumer protection is concerned, Article 169 of the Treaty requires such a high level of protection to be ensured. 
It may be argued that restrictions on payments by cash, such as those provided for in the draft law, should differ between 
those  applicable  to  business-to-business  transactions,  where  the  parties are deemed  to  have  equivalent  negotiating  power, 
and those applicable to business-to-consumer transactions, where cash should not be refused unless the business  can give 
restrictively defined and objective reasons. In this respect see the Report of the Euro Legal Tender Expert Group (ELTEG) 
on the definition, scope and effects of legal tender of euro banknotes and coins, Section 2.1.2. Acceptance/refusal of cash, 
available 
also  Commission 
recommendation  of  22 March  2010  on  the  scope  and  effects  of  legal  tender  of  euro  banknotes  and  coins  (OJ  L  83, 
30.3.2010,  p.  70),  paragraph  2,  whereby  ‘The  acceptance  of  euro  banknotes  and  coins  as  means  of  payments  in  retail 
transactions should be the rule. A refusal thereof should be possible only if grounded on reasons related to the “good faith 
principle” (for example the retailer has no change available)’. 

at:  www.ec.europa.eu/economy_finance/articles/euro/documents/elteg_en.pdf. 

See 

4