Opinion of the European Central Bank of 11 November 2011 on protection against counterfeiting and on the preservation of the quality of cash circulation (CON/2011/92)
Date: 2011-11-11
Institutions: European Central Bank
Subjects: Germany, administrative sanction, counterfeiting, euro, fight against crime, money, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 11 November 2011 

on protection against counterfeiting and on the preservation of the quality of cash circulation 

(CON/2011/92) 

Introduction and legal basis 

On 17 October 2011, the European Central Bank (ECB) received a request from the German Ministry of 

Finance  for  an  opinion  on  a  draft  law  amending  the  Law  on  the  Deutsche  Bundesbank  (hereinafter  the 

‘draft  Bundesbank  Law’)  and  a  draft  law  amending  the  Law  on  coins  (hereinafter  the  ‘draft  Law  on 

coins’).  

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

Functioning  of  the  European  Union  and  the  first,  second  and  third  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  legislation  concerns  currency  matters, 

means of payment and the Deutsche Bundesbank. 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 legislation 

1.1  The  draft  legislation  aims  to  bring  the  German  legal  framework  for  protection  against 

counterfeiting in line with recent Union legislation in this area2. 

1.2  The  draft  Bundesbank  Law  foresees,  inter  alia,  widening  of  the  institutions  subject  to  duties 

regarding  the  detainment  and  submission  of  counterfeit  banknotes  in  order  to  comply  with 

Regulation  (EC)  No  1338/2001.  In  that  context,  the new  Section  36(4a)  provides  that  parties  not 

ensuring  that  euro  banknotes  and  coins  are  checked  for  authenticity  or  that  counterfeits  are 

detected,  as  specified  in  the  relevant  Union  legislation,  are  deemed  to  have  committed  an 

administrative  offence.  The  new  Section  36a  empowers  the  Ministry  of  Finance  to  issue  more 

detailed provisions concerning submission duties, including the possibility of notifying transactions 

1  
2  

OJ L 189, 3.7.1998, p. 42.  
Notably, with: (a) Article 6 of Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary 
for  the  protection  of  the  euro  against  counterfeiting  (OJ  L  181,  4.7.2001,  p.  6);  (b)  Decision  ECB/2010/14  of 
16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes (OJ L 267, 9.10.2010, 
p. 1);  and  (c)  Regulation  (EU)  No 1210/2010  of  the  European  Parliament  and  the  Council  of  15  December  2010 
concerning authentication of euro coins and handling of euro coins unfit for circulation (OJ L 339, 22.12.2010, p. 1). 

 
 
 
 
                                                 
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with  banknote  handling  systems  to  the  Bundesbank.  The  new  Section  37a  concerns  provision  of 

information  and  checks,  according  to  which  parties  subject  to  the  detention  obligation  under 

Section  36(1)  seeking  to  recirculate  banknotes  have  to  inform  the  Bundesbank  on  request  on  the 

origin of the banknotes, their processing and the handling machines used. Section 37a(2) provides 

that  the  Bundesbank  may  carry  out  checks  on  such  parties.  According  to  Section  37a(3),  the 

Bundesbank  should  prohibit  parties  contravening  the  obligation  to  check  required  by  Decision 

ECB/2010/14  from  recirculating  banknotes  or  certain  denominations  thereof  or  from  performing 

checks using certain banknote handling systems. In addition, some editorial changes are made. 

1.3  The  draft  Law  on  coins  states  that  the  Bundesbank  exercises  the  responsibilities  provided  for  in 

Regulation  (EU)  No  1210/2010,  and  provides  that  an  administrative  offence  is  deemed  to  have 

occurred  by  not  ensuring  that  coins  are  subject  to  an  authentication  procedure,  and  by  failing  to 

submit  or  failing  to  submit  on  time  the  relevant  coins  to  the  Bundesbank.  The  latter  duty  also 

applies to information requests. 

2.   General observations 

2.1  The  ECB  welcomes  the  draft  legislation  and  it  is  confident  that  its  provisions  will  ensure  the 

preservation  of  euro  banknotes  in  circulation,  resulting  in  continued  public  confidence  in  euro 
banknotes3.  

2.2  As  Decision  ECB/2010/14  applies  to  cash  handlers  by  virtue  of  Article  6(1)  of  Regulation  (EC) 

No 1338/2001, which refers to procedures defined by the ECB for checking euro banknotes, there 

is no strict need to implement Decision ECB/2010/14 into German law.  

2.3  The ECB considers it essential that any draft legislation implementing Decision ECB/2010/14 does 

not  deviate  from  its  common  provisions,  unless  this  is  explicitly  provided  for  in  Decision 

ECB/2010/14.  Any  national  implementing  measures  should  clarify  the  primacy  and  direct 

application  of  Union  law  on  the  authenticity  and  fitness  checking  and  recirculation  of  euro 

banknotes with which cash handlers must comply. In this context and for consistency reasons, the 

ECB favours the use of direct references to Decision ECB/2010/14 or, alternatively, reproduction 
of its provisions without any alterations or additions4.  

2.4 

In  addition,  although  national  authorities  are  not  formally  obliged  to  consult  the  ECB  on  the 

implementation  of  the  Member  States’  obligation  to  take  the  necessary  measures  to  ensure  that 

breaches  of  Article  6(1)  of  Regulation  (EC)  No 1338/2001  are  subject  to  effective,  proportionate 

and  deterrent  sanctions,  the  ECB  believes  it  is  beneficial  to  harmonise  throughout  the  Union  the 

national  measures  implementing  this  obligation  to  the  extent  possible,  subject  to  national 
peculiarities5.  

3  
4  
5  

Paragraph 2.1 of Opinion CON/2010/90. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.  
Paragraphs 2.1 and 2.3 of Opinion CON/2011/19. 
Paragraph 1.1 of Opinion CON/2010/87. 

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3.   Administrative fines and corrective measures 

3.1  Where cash handlers breach the obligations set out in the Union legislation to which the draft Law 

on coins refers, this results in an administrative fine, in some cases of up to EUR 20 000, in other 

cases of up to EUR 5 000. In the case of banknotes, the Law on the Deutsche Bundesbank provides 

for a fine of up to 100 000 EUR. In addition, Article 37a of the draft Bundesbank law introduces 

the  possibility  for  the  Bundesbank  to  impose  corrective  measures  on  cash  handlers  that  breach 

these obligations regarding banknotes. According to this provision, the Bundesbank should prohibit 

parties  contravening  the  obligation  to  check  required  by  Decision  2010/14  from  recirculating 

banknotes  or  certain  denominations  thereof  or  from  performing  checks  using  certain  banknote 

handling systems. 

3.2  The ECB notes the importance of effective, proportionate and deterrent sanctions6. To ensure the 

deterrent effect of the administrative fines, the maximum amount should be a fine which effectively 

deters  cash  handlers  from  breach  of  their  obligations.  While  it  is  up  to  the  Member  States’ 

legislators to define the particular amounts of the administrative fines, they should aim for a certain 

degree  of  harmonisation  across  the  Member  States  to  contribute  to  the  establishment  of  a  level 

playing field among cash handlers within the euro area without prejudice to: (a) the particularities 

of the cash cycle and the organisation of cash handlers at national level; and (b) the consistency of 
the levels of financial sanctions available in their legal orders7.  

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

Done at Frankfurt am Main, 11 November 2011. 

[signed] 

The President of the ECB 

Mario DRAGHI 

6  
7  

Article 6(2) of Regulation (EC) No 1338/2001. 
Paragraph 3.4 of Opinion CON/2010/87. 

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