Opinion of the European Central Bank of 22 December 2021 on the provision of an electronic payment option to consumers (CON/2021/38)
Date: 2021-12-22
Institutions: European Central Bank
Subjects: money

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 22 December 2021  

on the provision of an electronic payment option to consumers 

(CON/2021/38) 

Introduction and legal basis 

On  22  November  2021  the  European  Central  Bank  (ECB)  received  a  request  from  the  Governor  of  the 

Nationale Bank van België/Banque Nationale de Belgique, on behalf of the Vice Prime Minister and Minister 

of  Economy  and  Labour,  for  an  opinion  on  a  preliminary  draft  program-law  introducing,  inter  alia,  the 

obligation  for  undertakings  to  provide  an  electronic  payment  option  for  consumers  (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 indent of Article 2(1) of Council Decision 98/415/EC1, 

as the draft law relates to 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.

Purpose of the draft law

1.1   The draft law provides that where a payment in euro is made in the simultaneous physical presence

of a consumer and an undertaking, the undertaking must also make available to the consumer an 

electronic means of payment2. As stated in the explanatory memorandum accompanying the draft 

law,  the  objective  of  the  draft  law  is  twofold.  First,  the  requirement  for  undertakings  to  provide  to 

consumers an electronic means of payment is designed to guarantee that the consumer always has 

the possibility of paying via an electronic means of payment. Second, the requirement falls within the 

plan to combat tax fraud3.  

1.2  The draft law defines ‘undertaking’ as any natural or legal person pursuing an economic purpose on 

a long-term basis, including its associations 4. This definition is not limited to companies in the strict 

sense,  but  captures  any  legal  or  natural  person  that  engages  in  economic  activities  towards 

consumers. In that respect, any  of the  liberal professions and any person and  association can be 

interpreted as an undertaking. Public institutions can also fall under the definition of an undertaking 

when they engage in activities outside the realm of providing public services 5.  

1.3  The  draft  law  defines  ’electronic  means  of  payment’  as  any  means  of  payment  other  than  euro 

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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). 
Article 107 of the draft law. 
See page 3 of the explanatory memorandum of the draft law. 
See Article I.8, 39° of the Code of Economic Law. 
See pages 6 and7 of the explanatory memorandum of the draft law. 

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banknotes and coins, supplied by a payment service provider 6. Luncheon vouchers, eco-vouchers 

and consumer vouchers, which are subject to a specific legal framework in the area of taxation and 

labour  rights,  are  excluded  from  the  definition  of  an  electronic  means  of  payment,  as  are 

cryptocurrencies 7. 

1.4  According to the explanatory memorandum, undertakings are not authorised to refuse payments in 

cash, which will always have to be accepted as euro banknotes and coins are the only legal tender 

in the euro area.  

1.5  The legislator understands that the mandatory provision of an electronic means of payment can bring 

extra  costs  for  undertakings,  especially  for  the  smallest  ones,  as  they  carry  out  many  low  value 

transactions and less commonly use electronic means of payment. For that reason, the explanatory 

memorandum  states  that  micro-companies  and  natural  persons  that  meet  the  criteria  for  micro-

companies will be entitled to a 120% tax deduction for the costs incurred or borne in order to provide 

consumers an electronic means of payment8. ’Micro-companies’ are defined as small companies with 

legal personality which are not subsidiaries or parent companies and which do not exceed one of the 

following criteria on the balance sheet date for the last completed financial year: an annual average 

number of employees of 10; an annual turnover excluding value added tax of a maximum of EUR 

700,000; or a balance sheet total of a maximum of EUR 350,0009.  

2. 

General observations 

Role of electronic payments and cash in society, and legal tender status of euro banknotes and coins 

2.1  The  ECB  notes  that  the  introduction  of  a  mandatory  requirement  for  undertakings  to  provide  an 

electronic means of payment to consumers alongside cash will ensure that consumers have a choice 

when making payments at the premises of undertakings. Even though, as noted in the explanatory 

memorandum, Belgians make considerably fewer bank card or mobile payments as compared with 

consumers in other European countries, the changing reality is that electronic payment instruments 

are becoming increasingly common and important in everyday life. The ECB holds a positive view of 

further innovation and development in the field of electronic payment instruments and their continued 

spread in society 10.  

2.2  Taking a common European approach for payments is important, particularly for Member States that 

have  adopted  the  euro  as  their  currency.  The  Single  Euro  Payments  Area  makes  it  possible  for 

residents of euro area Member States to make payments in other euro area Member States as easily 

as  they  are  accustomed  to  do  in  their  home  Member  States.  In  this  respect,  electronic  means  of 

payment  in  the  form  of  purely  national  card  schemes  or  mobile  payment  solutions  that  are  not 

available to non-permanent residents would be a step back.   

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Article  I.9,  2°  Code  of  Economic  Law,  which  transposes  Article  4(11)  of  Directive  (EU)  2015/2366  of  the  European 
Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 
2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC 
(OJ L 337, 23.12.2015, p. 35). 
See pages 4 and 5 of the explanatory memorandum of the draft law. 
See page 3 of the explanatory memorandum of the draft law. 
As referred to in Article 1:25 Code for Companies and Associations. 
See  paragraph  2.2  of  Opinion  CON/2020/21  and  paragraph  2.3  of  Opinion  CON/2021/18.  All  ECB  opinions  are 
published on EUR-Lex. 

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2.3  Cash continues to play a unique and important role in society, as certain groups, such as the elderly, 

immigrants, the disabled, socially vulnerable citizens and marginalised people, are less familiar with 

or even unable to use electronic means of payment. For these groups, cash is and continues to be 

an essential payment method to meet their daily needs. There are other legitimate reasons to pay in 

cash rather than with an electronic payment instrument. Cash 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 instantly and in central bank money. Lastly, cash has the advantage that it is not 

affected in the event of a disturbance in the electronic payment system and possesses therefore an 

important back-up function. 11  

2.4  Belgium is a member of the euro area  and as Union law regulates the  legal tender status of euro 

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

and coins is directly applicable in Belgium.  

2.5  Under the Treaty, the European System of Central Banks has the basic task of promoting the smooth 

operation of payment systems12, and the ECB has the exclusive right to authorise the issue of euro 

banknotes within the Union 13. 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 area 14.  

2.6  The  concept  of  ‘legal  tender’  of  a  means  of  payment  denominated  in  a  currency  unit  has  been 

considered by the Court of Justice of the European Union. In particular, the Court has clarified that 

‘legal tender’ signifies that this specific 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 coins 15, which provides useful guidance for the interpretation 

of the relevant provisions of Union 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 shows that the concept of ‘legal 

tender’ encompasses, inter alia, an obligation in principle to accept banknotes and coins denominated 

in euro for payment purposes16.  

2.7 

Insofar as it allows Union 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 Union 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, 

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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 and paragraphs 2.1 
and 2.3 of Opinion CON/2021/18.  
Article  127(2)  TFEU  and  Article  3.1  of  the  Statute  of  the  European  System  of  Central  Banks  and  of  the  European 
Central Bank (hereinafter the ‘Statute of the ESCB’). 
First sentence of Article 128(1) TFEU and first sentence of Article 16 of the Statute of the ESCB. 
Third sentence of Article 128(1) TFEU and third sentence of Article 16 of the Statute of the ESCB. 
OJ L 83, 30.3.2010, p. 70. 
See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  C-422/19  and  C-423/19, 
ECLI:EU:C:2021:63, paragraphs 46 to 49. 

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unless they have been empowered by the Union to do so or for the implementation of Union acts 17. 

2.8  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  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 cash18. 

Preferential tax treatment for the costs of implementing the requirement to provide electronic means 

of payment 

2.9  The ECB acknowledges that the practical implementation of the draft law entails costs in relation to 

the acceptance of electronic payments and the use of services offered by commercial entities under 

market conditions. These costs include, but are not limited to, fees in relation to individual payment 

transactions  consisting  of  a  fixed  fee  and/or  ad  valorem  percentage  per  transaction,  fees  for  the 

purchase or rental of payment terminals, as well as periodic fees for payment service providers. These 

costs  may  have  a  more  substantial  impact  on  small  undertakings.  Assuming  stable  revenues,  the 

increase in costs for payment acceptance would lead to a decrease of profitability.  

2.10  However, it is noted that, according to the explanatory memorandum, every micro-company will be 

able to benefit from a 120% tax deduction in respect of its costs, including those micro-companies 

that provided an electronic means of payment to consumers before the coming into force of the draft 

law.  

2.11 

In this regard, while the draft law ensures that undertakings must not refuse payments in cash, the 

tax deduction for undertakings with respect to the cost of offering an electronic means of payment to 

consumers should not be designed in such a way as to give rise to an incentive for these undertakings 

to persuade consumers to favour electronic means of payment.  

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 22 December 2021. 

[signed] 

The President of the ECB 

Christine LAGARDE 

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18  

See  judgment  of  the  Court  of  Justice  of  26  January  2021,  Hessischer  Rundfunk,  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,  C-422/19  and  C-423/19, 
ECLI:EU:C:2021:63, paragraphs 55 to 56. 

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