Opinion of the European Central Bank of 18 November 2011 on protection against counterfeiting and on the preservation of the quality of cash circulation (CON/2011/94)
Date: 2011-11-18
Institutions: European Central Bank
Subjects: Italy, counterfeiting, euro, fight against crime, fine, money, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 18 November 2011 

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

(CON/2011/94) 

Introduction and legal basis 

On 20 October 2011, the European Central Bank (ECB) received a request from the Italian Ministry of 

Economic  Affairs  and  Finance  for  an  opinion  on  draft  legislative  provisions  amending  Decree-Law  No 

350 of 25 September 2001, converted into law by Law No 409 of 23 November 2001, as well as Decree-

Law No 262 of 3 October 2006, converted by Law No 286 of 24 November 2006 (hereinafter the ‘draft 

legislative  provisions’).  On  the  same  day,  the  ECB  received  a  request  from  the  Banca  d’Italia  for  an 

opinion  on  a  set  of  draft  Banca  d’Italia  acts  laying  down:  (a)  secondary  provisions  on  cash  handling 

activities  (hereinafter  the  ‘draft  secondary  provisions’),  and  (b)  a  guide  for  cash  handlers  on  statistical 

reporting obligations (hereinafter the ‘draft guide’).  

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  Banca  d’Italia.  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  at  aligning  the  Italian  legal  framework  for  protection  against 

counterfeiting with recent Union legislation in this area2. 

1.2  The  draft  legislative  provisions,  inter  alia,  increase  the  number  of  institutions  subject  to  duties 

regarding  the  detection  and  prevention  of  use  of  counterfeit  banknotes  in  order  to  comply  with 

Regulation  (EC)  No  1338/2001.  In  that  context,  Article  8  of  Decree-Law  No  350/2001  has  been 

1  
2  

OJ L 189, 3.7.1998, p. 42.  
Notably,  with:  (a)  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). 

 
 
 
 
                                                 
ECB-PUBLIC 

replaced. Article 8(1) to (5), as amended by the draft legislative provisions, aim at implementing 

Article 6(1) of Regulation (EC) No 1338/2001 and Article 3 of Regulation (EU) No 1210/2010. In 

particular,  Article  8(1),  as  amended  by  the  draft  legislative  provisions,  obliges  cash  handlers  to 

check  and  detect  counterfeit  and  unfit  euro  banknotes  and  coins  whereas  paragraphs  4  and  5,  as 

amended  by  the  draft  legislative  provisions,  impose  on  cash  handlers  the  obligation  to  remove 

counterfeit  and  unfit  banknotes  and  coins  from  circulation  and  hand  them  over  to  the  Italian 

authorities.  

1.3  Article 8(6), as amended by the draft legislative provisions, appoints the Italian National Centre for 

the  Analysis  of  Coins  (CNAC)  to  perform  the  tasks  set  out  in  Regulation  (EU)  No  1210/2010. 

Article 8(7), as amended by the draft legislative provisions, empowers the Banca d’Italia to conduct 

inspections  at  the  premises  of  cash  handlers  to  monitor  compliance  with  Decision  ECB/2010/14, 

Article  8  of  Decree-Law  No  350/2001,  as  amended  by  the  draft  legislative  provisions,  and  the 

secondary  provisions  with  reference  to  euro  banknotes.  In  this  context,  the  Banca  d’Italia  may 

receive assistance from the tax police, subject to the same limits applying to investigations against 

tax evasion.  

1.4  Article  8(8),  as  amended  by  the  draft  legislative  provisions,  concerns  agreements  between  the 

Banca  d’Italia,  the  Ministry  and  the  CNAC,  as  well  as  other  relevant  authorities,  on  increasing 

cooperation in this area. Article 8(9), as amended by the draft legislative provisions, empowers the 

Banca  d’Italia  and  the  Ministry  to  adopt  implementing  provisions,  such  as  the  abovementioned 

secondary provisions. Article 8(10) to (12), as amended by the draft legislative provisions, set out 

financial sanctions and consequences in case of breach of Article 8 itself, Decision ECB/2010/14, 

Regulation (EC) No 1338/2001 and Regulation (EU) No 1210/2010.  

1.5  Article  8-bis,  as  introduced  by  the  draft  legislative  provisions,  aims  at  implementing  Article 4  of 

Regulation  (EC)  No  1338/2001.  Article  8-ter,  as  introduced  by  the  draft  legislative  provisions 

concerns professional secrecy. The draft legislative provisions also amend and insert in Article 2 of 

Decree-Law  No  262/2006  paragraphs  152  to  153-bis,  which  refer  to  reporting  obligations  to  the 

Ministry and related sanctions. 

1.6  The draft secondary provisions further clarify Decision ECB/2010/4 for the benefit of addressees. 

The draft guide explains in detail reporting obligations for cash handlers. 

2.   General observations 

2.1  The  ECB  is  confident  that  the  draft  provisions  will  ensure  the  authenticity  and  integrity  of  euro 

banknotes and coins in circulation, resulting in continued public confidence in the euro.  

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 in Italian law. Nevertheless, the ECB notes 

that the draft secondary provisions will contribute to the adequate implementation of this Decision.  

2 

 
ECB-PUBLIC 

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, 

including ensuring a level-playing field for cash handlers across Member States, the ECB favours 

the  use  of  direct  references  to  Decision ECB/2010/14  or,  alternatively,  reproduction  of  its 
provisions  without  any  alterations  or  additions3.  In  this  regard,  the  ECB  notes  that  the  draft 

secondary provisions contain rules further detailing the outsourcing requirements of Article 3(2) of 

Decision ECB/2010/14. The ECB understands that the purpose of the draft secondary provisions is 

to 

limit  any  risks  associated  with  such  outsourcing  and 

that 

they  will  supplement 

Decision ECB/2010/14.  

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 
peculiarities4.  

3.  

Sanctions 

3.1  According  to  Article  8(10)  of  Decree-Law  No  350/2001,  as  amended  by  the  draft  legislative 

provisions, where cash handlers breach the obligations set out in Article 8 itself, the implementing 

provisions or the Union legislation to which the draft legislative provision refers, this would result 

in  the  imposition  of  an  administrative  fine  between  EUR  5  000  and  50  000.  In  addition,  Article 

8(11)  to  (13),  as  amended  by  the  draft  legislative  provisions,  introduces  the  possibility  for  the 

Banca d’Italia or the Ministry to require a non-compliant cash handler to take additional corrective 

measures,  with  a  possible  impact  on  the  conduct  of  supervision  and  oversight  by  the  relevant 

authorities. 

3.2  The ECB notes the importance of effective, proportionate and deterrent sanctions5. The maximum 

amount  of  administrative  fines  should  effectively  deter  cash  handlers  from  breaching  their 

obligations. While it is up to the national legislator to determine the levels, 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 

3  

4  
5  

Paragraphs  2.1  and  2.3  of  Opinion  CON/2011/19.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 
Paragraph 1.1 of Opinion CON/2010/87. 
Article 6(2) of Regulation (EC) No 1338/2001. 

3 

 
                                                 
ECB-PUBLIC 

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 orders6.  

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

Done at Frankfurt am Main, 18 November 2011. 

[signed] 

The President of the ECB 

Mario DRAGHI 

6  

Paragraph 3.4 of Opinion CON/2010/87. 

4