VOLUME 3 – NO 7 / JULY 2020
Cash , Legal Tender and the Future of Euro Banknotes By Martina Horakova
A case currently being heard in Europe’s top court could have a major bearing on the future of banknotes in the region. The case asks the court to define the term ‘legal tender’. The judgement will be delivered in the Autumn. It was mid-June and Luxembourg was just emerging from a three-month lockdown to halt the spread of COVID-19. Sat three seats apart, an audience of a dozen gathered in the European Court of Justice’s (ECJ) Grand Chamber to hear the oral arguments of a legal case with potential major implications for the future of cash. The hearings relate to a legal challenge against the Hessischer Rundfunk, the German public broadcaster, which is accused of not accepting payments for an obligatory fee in euro cash. The plaintiffs argue that this refusal is in violation of the status of euro banknotes and coins as legal tender. The argument for the challenge is led by Norbert Haering, a Handesblatt journalist and pro-cash activist, whose lawyer opened with a plea, ‘save the euro, preserve the banknote ’. On the side of the plaintiffs were the European Central Bank (ECB) and the European Commission, while the defendant was joined by representatives of the German and French government. The case was brought to the ECJ by a referral from the Bundesverwaltungsgericht (BVerwG), the German Federal Administrative Court. The BVerwG found
that ‘the exclusion of the possibility of paying broadcasting fees with euro banknotes violates the federal law (Bundesbank Act) and that German public authorities are obliged to accept euro banknotes.’ The BVerwG further found that ‘exceptions cannot be based on practical administrative reasons or cost savings, and require an authorisation by a federal law.’ However, the BVerwG deferred a ruling on the case pending receipt of a preliminary ruling from the ECJ, on the three questions: 1. Given the EU’s exclusive competence for monetary policy, is a euro member state entitled to oblige national public authorities to accept euro banknotes in the fulfilment of mandatory payment obligations? 2. Does the legal tender status of euro banknotes make it mandatory for member states’ public authorities to accept euro banknotes as a discharge of obligatory payments? Or can a member state’s public authority, under certain conditions, refrain from accepting euro cash for such payment obligations? 3. If, as a consequence of the legal tender status of euro banknotes, member states’ public authorities have to accept euro banknotes as a discharge of mandatory payment obligations, can a Eurozone member state nevertheless apply national law as long as the EU has not made use of its transferred competence? Continued on page 4 >
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New European Payment Solution Welcomed by ECB The European Central Bank (ECB) has welcomed the decision by 16 European banks to launch the European Payments Initiative (EPI), the objective of which is to create a unified payment solution for consumers and merchants across Europe. The EPI will include a payment card and a digital wallet covering instore, online and person-to-person payments as well as cash withdrawals. Fragmentation persists across Europe in the way people actually pay, be it online or on-site in brick and mortar shops. Ten European countries still have national card schemes that do not accept cards from other EU member states. A growing number of innovative services, such as mobile wallets, are national only. In November 2019 the Eurosystem relaunched its retail payments strategy, calling for increased collaboration between European stakeholders to provide payment services that meet the needs of European customers and strengthen the autonomy of the European retail payments market. The EPI is a response to this call. It seeks to replace national schemes for card, online and mobile payments with a unified card and digital wallet that can be used across Europe, thereby doing away with the existing fragmentation. As it is based on the SEPA instant credit transfer (SCT Inst) scheme, it can immediately capitalise on powerful and sophisticated existing infrastructures, such as the Eurosystem’s TARGET Instant Payment Settlement (TIPS). The Eurosystem, however, will continue to support private initiatives for retail payments provided that they fulfil five key objectives: pan-European reach, customer friendliness, cost efficiency, safety and security, European identity and governance, and, in the long-run, global reach.