Johannes Dietrich v Hessischer Rundfunk.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:63
• Docket Number: C-422/19
• Date: 26 January 2021

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

26 January 2021 (*)

(Reference for a preliminary ruling – Economic and monetary policy – Article 2(1) and Article 3(1)(c) TFEU – Monetary policy – Exclusive competence of the European Union – Article 128(1) TFEU – Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank – Article 16, first paragraph – Concept of ‘legal tender’ – Effects – Obligation to accept euro banknotes – Regulation (EC) No 974/98 – Whether possible for Member States to impose limitations on payments by means of banknotes and coins denominated in euro – Conditions – Regional legislation precluding the payment in cash of a radio and television licence fee to a regional public broadcasting body)

In Joined Cases C‑422/19 and C‑423/19,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decisions of 27 March 2019, received at the Court on 31 May 2019, in the proceedings

Johannes Dietrich (C‑422/19),

Norbert Häring (C‑423/19)

v

Hessischer Rundfunk,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, A. Prechal, M. Vilaras and N. Piçarra, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, D. Šváby, S. Rodin, C. Lycourgos, P.G. Xuereb (Rapporteur), L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: G. Pitruzzella,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 15 June 2020,

after considering the observations submitted on behalf of:

– Mr Dietrich and Mr Häring, by C.A. Gebauer, Rechtsanwalt,

– Hessischer Rundfunk, by H. Kube, Professor of Law,

– the German Government, by J. Möller and S. Eisenberg, acting as Agents,

– the French Government, by E. de Moustier and A. Daly, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato,

– the European Commission, by J. Baquero Cruz and T. Maxian Rusche, acting as Agents,

– the European Central Bank (ECB), by M. Rötting, F. Malfrère, C. Kroppenstedt and R. Aragón Plaza, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 September 2020,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 2(1) TFEU, read in conjunction with Article 3(1)(c) TFEU; of the third sentence of Article 128(1) TFEU; of the first paragraph of Article 16 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230; ‘the Protocol on the ESCB and the ECB’); and of Article 10 of Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro (OJ 1998 L 139, p. 1).

2 The requests have been made in two sets of proceedings between Mr Johannes Dietrich (Case C‑422/19) and Mr Norbert Häring (Case C‑423/19), and Hessischer Rundfunk (the public broadcaster for the Land of Hesse, Germany) concerning the payment of a radio and television licence fee due to Hessischer Rundfunk.

Legal context

European Union law

The Protocol on the ESCB and the ECB

3 The first paragraph of Article 16 of the Protocol on the ESCB and the ECB is worded as follows:

‘In accordance with Article 128(1) of the [FEU Treaty], the Governing Council shall have the exclusive right to authorise the issue of euro banknotes within the Union. The [European Central Bank (ECB)] and the national central banks may issue such notes. The banknotes issued by the ECB and the national central banks shall be the only such notes to have the status of legal tender within the Union.’

Regulation No 974/98

4 Recital 19 of Regulation No 974/98 reads as follows:

‘Whereas banknotes and coins denominated in the national currency units lose their status of legal tender at the latest six months after the end of the transitional period; whereas limitations on payments in notes and coins, established by Member States for public reasons, are not incompatible with the status of legal tender of euro banknotes and coins, provided that other lawful means for the settlement of monetary debts are available’.

5 Under Article 10 of that regulation:

‘As from 1 January 2002, the ECB and the central banks of the participating Member States shall put into circulation banknotes denominated in euro. Without prejudice to Article 15, these banknotes denominated in euro shall be the only banknotes which have the status of legal tender in all these Member States.’

6 According to Article 11 of that regulation:

‘As from 1 January 2002, the participating Member States shall issue coins denominated in euro or in cent and complying with the denominations and technical specifications which the Council may lay down in accordance with the second sentence of Article [128](2) [TFEU]. Without prejudice to Article 15, these coins shall be the only coins which have the status of legal tender in all these Member States. Except for the issuing authority and for those persons specifically designated by the national legislation of the issuing Member State, no party shall be obliged to accept more than 50 coins in any single payment.’

Recommendation 2010/191/EU

7 Recitals 1 to 4 of Commission Recommendation 2010/191/EU of 22 March 2010 on the scope and effects of legal tender of euro banknotes and coins (OJ 2010 L 83, p. 70) are worded as follows:

‘(1) The legal tender status of euro banknotes is laid down by Article 128 [TFEU], in the chapter on monetary policy. According to Article 3(1)(c) [TFEU], the Union shall have exclusive competence as regards monetary policy for the Member States whose currency is the euro (the participating Member States).

(2) According to Article 11 of [Regulation No 974/98], the euro coins shall be the only coins which have the status of legal tender in the participating Member States.

(3) There is currently some uncertainty at euro area level with regards to the scope of legal tender and the consequences thereof.

(4) This recommendation is based on the main conclusions of a report prepared by a working group consisting of representatives from Ministries of Finance and National Central Banks of the euro area.’

8 Points 1 to 4 of that recommendation provide as follows:

‘1. Common definition of legal tender

Where a payment obligation exists, the legal tender of euro banknotes and coins should imply:

(a) Mandatory acceptance:

The creditor of a payment obligation cannot refuse euro banknotes and coins unless the parties have agreed on other means of payment.

(b) Acceptance at full face value:

The monetary value of euro banknotes and coins is equal to the amount indicated on the banknotes and coins.

(c) Power to discharge from payment obligations:

A debtor can discharge himself from a payment obligation by tendering euro banknotes and coins to the creditor.

2. Acceptance of payments in euro banknotes and coins in retail transactions

The acceptance of euro banknotes and coins as means of payments in retail transactions should be the rule. A refusal thereof should be possible only if grounded on reasons related to the “good faith principle” (for example the retailer has no change available).

3. Acceptance of high denomination banknotes in retail transactions

High denomination banknotes should be accepted as means of payment in retail transactions. A refusal thereof should be possible only if grounded on reasons related to the “good faith principle” (for example the face value of the banknote tendered is disproportionate compared to the amount owed to the creditor of the payment).

4. Absence of surcharges imposed on the use of euro banknotes and coins

No surcharges should be imposed on payments with euro banknotes and coins.’

German law

9 Paragraph 14(1) of the Gesetz über die Deutsche Bundesbank (Law on the German central bank), in the version published on 22 October 1992 (BGBl. 1992 I, p. 1782), as amended by the Law of 4 July 2013 (BGBl. 2013 I, p. 1981) (‘the BBankG’), provides:

‘Without prejudice to Article 128(1) TFEU, the Deutsche Bundesbank [(German central bank)] shall have the exclusive right to issue banknotes in the area in which this Law applies. Banknotes denominated in euro shall be the sole unrestricted legal tender. …’

10 Paragraph 2(1) of the Rundfunkbeitragsstaatsvertrag (State Treaty on radio and television licence fees) of 15 to 21 December 2010, in the version resulting from the Fünfzehnter Rundfunkänderungsstaatsvertrag (Fifteenth Amending State Broadcasting Treaty), as ratified by the Land of Hesse (Germany) by the Law of 23 August 2011 (GVBl. I 2011, p. 382) (‘the RBStV’), is worded as follows:

‘In the private sphere, a radio and television licence fee is payable for each dwelling by its owner (the licence fee payer).’

11 Paragraph 7(3) of the RBStV states:

‘The radio and television licence fee shall be payable each month. It must be paid in the middle of a three-month period, for a period of three months respectively.’

12 Paragraph 9(2) of the RBStV provides:

‘The competent Landesrundfunkanstalt (regional broadcasting organisation) shall be authorised to establish by means of rules (Satzung) the procedure

…

2. for payment of the radio and television licence fee and for exemption from, or reduction of, the licence fee.

…’

13 Paragraph 10 of the RBStV states:

‘…

(2) The radio and television licence fee must be paid to the competent regional broadcasting organisation as an obligation to dispatch payment to the payee (Schickschuld) …

…

(5) Arrears of the radio and television licence fee shall be determined by the competent regional broadcasting organisation. …’

14 Paragraph 10(2) of the Satzung des Hessischen Rundfunks über das Verfahren zur Leistung der Rundfunkbeiträge (Regulations of Hessischer Rundfunk on the procedure for the payment of radio and television licence fees) of 5 December 2012 (‘the...