Opinion of the European Central Bank of 14 May 2021 on the obligation to accept cash payments (CON/2021/18)
Date: 2021-05-14
Institutions: European Central Bank
Subjects: money

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 14 May 2021  

on the obligation to accept cash payments 

(CON/2021/18) 

Introduction and legal basis 

On 21 April 2021 the European Central Bank (ECB) received a request from the President of Narodowy 

Bank Polski (NBP), acting on behalf of the President of the Republic of Poland, for an opinion on a draft 

law amending the Law on payment services (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  first  and  second  indents  of  Article  2(1)  of  Council  Decision 
98/415/EC1, as the draft law relates to currency matters and means of payment. 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. 

1.1 

Purpose of the draft law 

The  purpose  of  the  draft  law,  which  amends  the  Law  on  payment  services2,  is  to  make  the 

acceptance of banknotes and coins issued by NBP mandatory in transactions for the provision of 

services  and  the  sale  of  goods  by  merchants  to  consumers.  As  noted  in  the  explanatory 
memorandum  accompanying  the  draft  law,  the  objective  of  the  draft  law  is  to  take  into 

consideration  the  payment  habits  of  all  social  groups  and  the  need  to  enable  them  to  use  the 

preferred form of payment, including cash  payments, in Poland.  In a crisis,  such  as the  current 

COVID-19  pandemic, the  non-acceptance  of cash in retail  and  service  outlets could  have  great 

repercussions,  mainly  for  elderly  and  disabled  people  paying  only  in  cash,  who  may  suffer 

considerable problems satisfying basic living needs such as the purchase of food and medicine. 

With  the  development  of  the  pandemic  the  non-acceptance  of  cash  by  merchants  is  becoming 

increasingly  commonplace,  and  a  study  on  payment  practices  in  Poland  conducted  by  NBP  in 

September and October 2020 showed that around 8 % of respondents had encountered a refusal 

by merchants to accept legal tender cash during the pandemic.  

1.2 

According  to  the  explanatory  memorandum,  the  Polish  legislator  has,  to  date,  not  obliged 

commercial entities operating in Poland to accept cash payments. The provisions of the Law on 

1  

2  

Council  Decision  98/415/EC  of  29 June  1998  on  the  consultation  of  the  European  Central  Bank  by  national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
The  Law  of  19  August  2011  on  payment  services  (Ustawa  z  dnia  19  sierpnia  2011  r.  o  usługach  płatniczych 
(Dziennik Ustaw z 2020 r., poz. 794). 

 
 
 
 
                                                 
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Narodowy Bank Polski3, which provide that banknotes and coins issued by NBP are legal tender 

in Poland, cannot be interpreted as laying down an unconditional obligation to accept banknotes 
and coins, notwithstanding the fact that they have the status of legal tender4. The consequences 

of a currency being legal tender are not specifically set out by law in Poland. Hence, the principle 
of  freedom  of  contract  laid  down  in  the  Polish  Civil  Code5  allows  merchants  to  set  up  their 

activities in such a way that they conclude contracts with consumers only if the consumers agree 

to use only cashless payments; this could be achieved, e.g., by simply posting information about 

their non-acceptance of cash payments in a visible place, such as in the shop window. This is a 

question  of  including  relevant  provisions  in  a  contractual  relationship,  rather  than  of  the  legal 
status of banknotes and coins6.  

1.3 

To achieve the purpose of obligating merchants to accept payments in legal tender cash despite 

the principle of freedom of contract, the draft law prohibits merchants from making a contract for 

the provision of services or for the sale of goods dependent on the payment being cashless and 

from refusing payment from a consumer in legal tender banknotes and coins issued by NBP. For 

this purpose, the concept of a ‘merchant’ means a payee other than the consumer to whom the 

acquirer provides a payment service. The draft law provides the following exemptions in respect 

of  which  the  obligation  to  accept  cash  does  not  apply:  (a)  business  activities  conducted  on  the 
internet; (b) at a business establishment where no staff is present; and (c) during a mass event7 

(e.g. a mass entertainment or sporting event) provided that information to that effect is included in 

the event rules. According to the explanatory memorandum, these exemptions from the obligation 

to  accept  cash  payments  strike  a  balance  between  the  interests  of  individual  economic  agents: 

on  one  hand,  they  offer  merchants  discretion  in  specific  cases  where  non-acceptance  of  cash 

payments  may  be  necessary,  and,  on  the  other  hand,  they  protect  consumer  interests  without 

distorting the essence of the draft law. 

1.5 

Finally, the draft law prohibits merchants from making surcharges or charging any additional fees 

for  accepting  payment  in  banknotes  and  coins  issued  by  NBP  or  differentiating  the  price 

depending on the form of payment. As pointed out in the explanatory memorandum, the aim of 

this provision is to protect consumers who want to pay in cash against any additional costs of this 

kind. 

2. 

General observations 

Role and importance of cash payments in society 

3  
4  

5  

6  

7  

Law of 29 August 1997 on Narodowy Bank Polski (Ustawa z dnia 29 sierpnia 1997 r. o Narodowym Banku Polskim (Dziennik Usta

See  Article  32  of  the  Law  of  29  August  1997  on  Narodowy  Bank  Polski  (Ustawa  z  dnia  29  sierpnia  1997  r.  o 
Narodowym Banku Polskim (Dziennik Ustaw z 2020 r., poz. 2027)) and the explanatory memorandum to the draft 
law. 

Law of 23 April 1964 – the Civil Code (Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Dziennik Ustaw z 2020 
r., poz.1740)). 

See Article 3531 of the Law of 23 April 1964 – the Civil Code (Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny 
(Dziennik Ustaw z 2020 r., poz.1740)). 
Within the meaning of Article 3(1) of the Law of 20 March 2009 on Safety at Mass Events (Ustawa z dnia 20 marca 
2009 r. o bezpieczeństwie imprez masowych ((Dziennik Ustaw z 2019 r., poz.2171)). 

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2.1 

Although  electronic  payment  instruments  are  increasingly  used  as  the  preferred  form  for  retail 

payments in a number of Member States, the ECB notes that cash continues to play an important 

role  in  society.  The  ability  to  pay  in  cash  remains  particularly  important  for  certain  groups  in 

society  that,  for  various  legitimate  reasons,  prefer  to  use  cash  rather  than  other  payment 

instruments.  Cash  is  generally  also  useful  as  a  payment  instrument  because  it  is  widely 

accepted, fast and facilitates control over the payer’s spending. Moreover, it is the only payment 
instrument that allows citizens to settle a transaction in central bank money instantly8. 

2.2 

The ECB understands that electronic payment instruments are increasingly used as a method of 
payment  in  Poland9.  However,  the  use  of  cash  in  payment  transactions  remains  dominant  in 

Poland, and according to the latest publicly available data the use of cash in retail payments in 
2019 accounted for 54 % of the total number of payments made10. A part of Polish society can be 

considered  to  be  outside  the  banking  system,  including  persons  who  do  not  yet,  or  anymore, 

have  a  bank  or  payment  account;  this  excludes  them  from  access  to  non-cash  payment 

instruments. As noted in the explanatory memorandum, in line with the initial results of a survey 

which was carried out by NBP in September and October 2020, this group is currently estimated 

to be around 14 % of Polish citizens above the age of 15. 

2.3 

While  the  ECB  holds  a  positive  view  of  further  innovation  and  development  in  the  field  of 

electronic payment instruments, the ECB also considers that cash has a unique role, as certain 

groups  in  society  are  unable  to  use  electronic  payment  methods  and  other  innovative  payment 

solutions.  As  such,  cash  is  a  crucial  payment  method,  especially  for  the  elderly,  young  people, 

immigrants,  the  disabled,  socially  vulnerable  citizens  and  anyone  with  limited  access  to  digital 
services11. There are other legitimate reasons why consumers might prefer to use cash. It is the 

only  means  of  payment  that  can  be  used  to  settle  a  debt  immediately  and  finally  without  an 

intermediary, and which is available to anyone at any given time. Additionally, cash facilitates the 

inclusion of the entire population in the economy by allowing financial transactions to be settled in 

this  way;  Furthermore,  cash  could  play  an  important  role  in  the  event  of  a  disturbance  in  the 
payment system12. 

2.4 

In  a  crisis  situation,  such  as  the  ongoing  COVID-19  pandemic,  the  non-acceptance  of  cash  at 

physical  points  of  sale  may  indeed  be  of  particular  significance  to  the  elderly  and  people  with 

disabilities, or anyone unable to access cashless means of payment, and who as a consequence 

could face serious difficulties meeting their essential needs. 

2.5 

Against this background, the ECB strongly welcomes that the draft law strengthens citizens' right 

to  pay  in  cash  as  a  rule,  especially  in  those  cases  where  staff  is  present  at  the  business 

8  

9  

10   

11  
12  

See paragraph 2.4 of Opinion CON/2017/8; paragraph 2.1 of Opinion CON/2019/41; paragraph 9.2.1 of Opinion 
CON/2020/13; paragraph 2.3 of Opinion CON/2020/21; paragraph 7.2.1 of Opinion CON/2021/9. All ECB opinions 
are published on EUR-Lex. 
See Narodowy Bank Polski, System płatniczy w Polsce (Payment system in Poland ), p. 42, available on the NBP 
website at www.nbp.pl. 
See  Narodowy  Bank  Polski,  Ocena  funkcjonowania  polskiego  systemu  płatniczego  w  II  półroczu  2020  roku 
System  płatniczy  w  Polsce  (Assessment  of  the  functioning  of  the  Polish  payment  system  in  the  second  half  of 
2020)Payment system in Poland), p. 145, available on the NBP website at www.nbp.pl.  
See paragraph 2.4 of Opinion CON/2017/8. 
See paragraph 2.1 of Opinion CON/2019/41 and 9.2.1 of Opinion CON/2020/13. 

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establishment,  thus  preserving  the  role  of  cash  as  a  generally  accepted  means  of  payment. 

However, the ECB would like to emphasize that there may be situations, such as in the area of 

public transportation services or other public services, where citizens should be able to have the 

option to pay in cash, even if the service would be paid for through automated means. The ECB 

understands  that  alternatives  to  cashless  payment  are  currently  offered  to  a  sufficient  standard 

e.g.  in  case  of  public  transport,  by  having  nearby  alternative  options  for  purchasing  a  ticket  in 

addition  to  the  use  of  a  cashless  vending  machine.  The  ECB  also  welcomes  the  draft  law’s 

introduction  of  a  provision  ensuring  that,  to  the  extent  that  a  merchant  accepts  cash,  no 

surcharges may be imposed on cash payments and the monetary debt is to be settled with legal 
tender notes and coins at nominal value. 

Status of euro banknotes and coins as a legal tender 

2.6 

Poland is a Member State with a derogation from participating in the third stage of economic and 

monetary union. Although Union law only regulates the legal tender status of euro banknotes and 

coins,  the  Union  framework  applicable  to  the  legal  tender  status  of  euro  banknotes  and  coins 

would become directly applicable in Poland if and when the euro is introduced in Poland. Against 

this  specific  institutional  backdrop,  the  ECB  has  prepared  an  assessment  of  the  draft  law’s 

provisions compared with relevant practices in the euro area, in particular as concerns the legal 

tender status of euro banknotes. 

2.7 

Under the Treaty, the European System of Central Banks (ESCB) has the basic task of promoting 
the smooth operation of payment systems13, and the ECB has the exclusive right to authorise the 
issue  of  euro  banknotes  within  the  Union14.  The  euro  banknotes  issued  by  the  ECB  and  the 

national central banks of the euro area are the only banknotes with legal tender status within the 
euro area15. 

2.8 

The concept of ‘legal tender’ has been considered by the Court of Justice of the European Union. 

In  particular,  the  Court  has  clarified  that  the  concept  of  ‘legal  tender’  of  a  means  of  payment 

denominated in a currency unit signifies that this means of payment cannot generally be refused 

in settlement of a debt denominated in the same currency unit, at its full face value, with the effect 

of discharging the debt. In clarifying the concept of ‘legal tender’ under Union law, the Court has 

taken into consideration Commission Recommendation 2010/191 of 22 March 2010 on the scope 
and effects of legal tender of euro banknotes and coins16, which provides useful guidance for the 

interpretation of the relevant provisions of EU law. Point 1 of Recommendation 2010/191 states 

that,  where  a  payment  obligation  exists,  the  legal  tender  of  euro  banknotes  and  coins  should 

imply, (a) mandatory acceptance of those banknotes and coins; (b) their acceptance at full face 

value;  and  (c)  their  power  to  discharge  from  payment  obligations.  According  to  the  Court,  this 

13  

14  
15  
16  

Article 127(2) of the Treaty and Article 3.1 of the Statute of the ESCB. 
First sentence of Article 128(1) of the Treaty and first sentence of Article 16 of the Statute of the ESCB. 
Third sentence of Article 128(1) of the Treaty and third sentence of Article 16, of the Statute of the ESCB. 
OJ L 83, 30.3.2010, p. 70. 

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shows  that  the  concept  of  ‘legal  tender’  encompasses,  inter  alia,  an  obligation  in  principle  to 
accept banknotes and coins denominated in euro for payment purposes17. 

2.9 

Insofar as it allows the EU legislature to lay down the measures necessary for the use of the euro 

as  the  single  currency,  the  Court  clarified  that  Article  133  of  the  Treaty  empowers  the  EU 

legislature  alone  to  specify  the  legal  rules  governing  the  status  of  legal  tender  accorded  to 

banknotes and coins denominated in euro, insofar as that is necessary for the use of the euro as 

the  single  currency.  Such  exclusive  competence  precludes  any  competence  on  the  part  of  the 

Member States in the matter, unless they have been empowered by the European Union to do so 
or for the implementation of Union acts18. 

2.10  However,  the Court  further  clarified  that  the  status  of  legal  tender  calls  only  for  acceptance  in 

principle of banknotes and coins denominated in euro as a means of payment, not for absolute 

acceptance.  The  European  Union’s  exclusive  competence  in  matters  of  monetary  policy  is 

without prejudice to the competence of the Member States whose currency is the euro to regulate 

the  procedures  for  settling  pecuniary  obligations,  which  do  not  affect  the  principle  that,  as  a 

general rule, it must be possible to discharge a payment obligation in cash. Thus, that exclusive 

competence does not prevent a Member State from adopting a measure which supports the legal 

tender  status  of  cash  payment  instruments;  for  instance,  a  Member  State  can  oblige  the  public 

administration to accept cash payments from citizens. Neither does it prevent a Member State, in 

the  exercise  of  its  own  powers,  from  introducing,  on  legitimate  public  interest  grounds,  a 

derogation  from  that  obligation  for  statutorily  imposed  payments,  subject  to  compliance  with 

certain  conditions.  In  particular,  the  obligation  to  accept  euro  banknotes  and  coins  could,  in 

principle,  be  restricted  by  the  Member  States  for  reasons  of  public  interest  and  subject  to  the 

principle of proportionality. This means that any such restrictions need to be proportionate to the 

public interest objective pursued. When limiting the possibility, recognised by EU law, of generally 

discharging  a  payment  obligation  in  banknotes  and  coins  denominated  in  euro,  Member  States 

must  ensure  that  any  measures  comply  with  the  principle  of  proportionality,  which  requires  in 

particular  that  they  are  appropriate  for  achieving  the  legitimate  objectives  pursued  by  the 

legislation  at  issue  and  do  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives19. 

2.11 

The ECB has provided additional guidance in its opinions with respect to whether limitations may 

be  considered  to  be  proportionate.  In  particular,  the  ECB  has  noted  that  the  broader  and  more 

general a limitation is, the stricter should be the interpretation of the requirement for the limitation 

to  be  proportionate  to  the  objective  pursued.  When  considering  whether  a  limitation  is 

proportionate, the adverse impact of the limitation in question and whether alternative measures 

17  

18  

19  

See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  joint  cases  C-422/19  and  C-
423/19, ECLI:EU:C:2021:63, paragraphs 46 to 49. 
See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  joint  cases  C-422/19  and  C-
423/19, ECLI:EU:C:2021:63, paragraphs 50 to 52. 
See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  joint  cases  C-422/19  and  C-
423/19, ECLI:EU:C:2021:63, paragraphs 55 to 56 and 67 to 70. 

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could be adopted that would fulfil the relevant objective with a less adverse impact should always 
be considered20.  

2.12 

Finally, Recommendation 2010/191, as referenced by the Court, states that no surcharges should 
be imposed on payments with euro banknotes and coins21. 

2.13 

Taking  into  account  the  foregoing  considerations,  the  ECB  considers  the  draft  law  to  be  in  line 

with  the  legal  tender  status  of  euro  banknotes  and  coins  under  Union  law.  Moreover,  the  ECB 

considers that the exceptions provided under the draft law to the general rule requiring merchants 

to accept payments in banknotes and coins issued by the NBP are clearly defined, not excessive 

and in general proportionate in view of the overall assessment of the situation, provided that the 

citizens  in  Poland  are  in  general  able  to  pay  for  basic  public  services,  such  as  public 

transportation, with cash e.g. by using a nearby alternative point of sale in addition to a cashless 

vending  machine.  The  draft  law’s  prohibition  on  surcharges  on  payments  with  banknotes  and 

coins is also consistent with the legal tender status of euro banknotes and coins under Union law. 

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 14 May 2021. 

[signed] 

The President of the ECB 

Christine LAGARDE 

20  
21  

See paragraph 2.7 of Opinion CON/2017/8. 
See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  joint  cases  C-422/19  and  C-
423/19, ECLI:EU:C:2021:63, paragraph 8. 

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