Opinion of Advocate General Medina delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:1005
• Date: 15 December 2022
• Celex Number: 62021CC0772
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 15 December 2022(1)

Case C‑772/21

UAB ‘Brink’s Lithuania’

(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))

(Reference for a preliminary ruling – Protection of the euro against counterfeiting – Regulation (EC) No 1338/2001 – Article 6(1) – Payment service providers engaged in the processing and distribution of notes to the public – Interpretation of Article 6(2) of Decision ECB/2010/14 – Detection of unfit euro banknotes – Automated fitness checking – Minimum standards published on the ECB’s website and amended from time to time – Personal scope – Extent of cash handlers’ obligations – Binding force – Principle of legal certainty)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Decision ECB/2010/14, (2) which lays down common rules and procedures on the authenticity and fitness checking of euro banknotes under Article 6(1) of Regulation No 1338/2001. (3)

2. The request has been made in the context of proceedings between UAB ‘Brink’s Lithuania’ (‘Brink’s Lithuania’), (4) on the one hand, and Lietuvos bankas (Bank of Lithuania), on the other, concerning a decision (5) by which the latter ordered Brink’s Lithuania to ensure that the tolerance level of its banknote handling machines, for the automated fitness checking of euro banknotes for recirculation, did not exceed 5%.

3. In the present case, the Court is called upon to determine whether Article 6(2) of Decision ECB/2010/14 and, in particular, the minimum standards laid down by the European Central Bank (ECB) for the automated fitness checking of euro banknotes, as referred to in that provision, apply to cash handlers. If they do not, the Court must then examine whether Article 6(2) of Decision ECB/2010/14, read in conjunction with Article 3(5) of the same decision, precludes a provision of national law requiring cash handlers to comply with those minimum standards. Finally, the referring court asks whether the ECB’s minimum standards and Article 6(2) of Decision ECB/2010/14 are valid and, therefore, legally binding in the light of the principle of legal certainty and Article 297(2) TFEU.

II. Legal framework

A. European Union law

1. Regulation No 1338/2001

4. Regulation No 1338/2001 lays down measures necessary with a view to uttering euro notes and coins in such a manner as to protect them against counterfeiting. (6)

5. Article 6 of Regulation No 1338/2001, entitled ‘Obligations relating to credit institutions engaged in the processing and distribution to the public of notes and coins’, provides in paragraph 1 and 2:

‘1. Credit institutions, and, within the limits of their payment activity, other payment service providers, and any other institutions engaged in the processing and distribution to the public of notes and coins, including:

…

– transporters of funds,

…

shall be obliged to ensure that euro notes and coins which they have received and which they intend to put back into circulation are checked for authenticity and that counterfeits are detected.

For euro notes, this check shall be carried out in line with procedures defined by the ECB …

The institutions and economic agents referred to in the first subparagraph shall be obliged to withdraw from circulation all euro notes and coins received by them which they know or have sufficient reason to believe to be counterfeit. They shall immediately hand them over to the competent national authorities.

…

2. Member States shall take the necessary measures to ensure that the establishments referred to in paragraph 1 which fail to discharge their obligations under the said paragraph are subject to effective, proportionate and deterrent sanctions.’

2. Decision ECB/2010/14

6. Recital 2 of Decision ECB/2010/14 provides:

‘To protect the integrity of euro banknotes and enable a proper detection of counterfeits, euro banknotes in circulation must be maintained in good condition to ensure that they can be easily and reliably checked for genuineness, and therefore euro banknotes must be checked for fitness. Furthermore, suspect counterfeit euro banknotes must be quickly detected and handed over to the competent national authorities.’

7. Article 1 of Decision ECB/2010/14, under the heading ‘Scope’, provides:

‘This Decision lays down common rules and procedures on the authenticity and fitness checking and recirculation of euro banknotes under Article 6(1) of Regulation [No 1338/2001].

8. Article 2 of that decision, entitled ‘Definitions’, provides:

‘For the purposes of this Decision:

1. “NCB” means the national central bank of a Member State whose currency is the euro.

2. “Cash handlers” means the institutions and economic agents referred to in Article 6(1) of Regulation [No 1338/2001].

3. “Recirculation” means the action, by cash handlers, of putting back into circulation, directly or indirectly, euro banknotes that they have received, either from the public as payment or as a deposit in a bank account, or from another cash handler.

4. “Banknote handling machine” means a customer-operated or staff-operated machine as defined in Annex I.

5. “Type of banknote handling machine” means a banknote handling machine that can be distinguished from other banknote handling machines as described in Annex I.

6. “Common test procedures” means the test procedures, as specified by the ECB, to be applied by NCBs in order to test types of banknote handling machine.

…

11. “Unfit euro banknotes” means euro banknotes which are evaluated as unsuitable for recirculation following the fitness checking referred to in Article 6.

…’

9. Article 3 of Decision ECB/2010/14, under the heading ‘General principles’, provides in paragraphs 1 and 3 to 5:

‘1. The obligation of cash handlers to check euro banknotes for authenticity and fitness shall be carried out in line with procedures laid down in this Decision.

…

3. The authenticity and fitness checking shall be carried out either by a type of banknote handling machine successfully tested by an NCB, or manually by a trained staff member.

4. Euro banknotes may only be recirculated via customer-operated machines or cash dispensers if they have been checked for authenticity and fitness by a type of banknote handling machine successfully tested by an NCB and classified as genuine and fit. …

5. Staff-operated machines, when used for the purpose of authenticity and fitness checking, and customer-operated machines may only be put into operation by cash handlers if they have been successfully tested by an NCB and listed on the ECB’s website as laid down in Article 9(2). The machines shall be used only for the denominations and series of euro banknotes listed on the ECB’s website for the corresponding machines, with the standard factory settings, including any updates thereof, that have been successfully tested unless stricter settings are agreed between the NCB and the cash handler.’

10. Article 6 of Decision ECB/2010/14, entitled ‘Detection of unfit euro banknotes’, provides in paragraphs 1 to 3:

‘1. Manual fitness checking shall be carried out in accordance with the minimum standards laid down in Annex III.

2. Automated fitness checking shall be carried out by a successfully tested banknote handling machine according to the minimum standards which are published on the ECB’s website and amended from time to time.

3. An NCB may, after informing the ECB, lay down stricter standards for one or more denominations or series of euro banknotes if this is justified, for example by a deterioration in the quality of the euro banknotes in circulation in its Member State. These stricter standards shall be published on that NCB’s website.’

11. Article 9 of that same decision, entitled ‘Eurosystem’s common test procedures for banknote handling machines’, states in paragraphs 1 to 3:

‘1. Types of banknote handling machines shall be tested by NCBs in accordance with the common test procedures.

2. All successfully tested types of banknote handling machines shall be listed on the ECB’s website during the periods of validity of the test results, as referred to in paragraph 3. A type of banknote handling machine that becomes unable during this period to detect all counterfeit euro banknotes known to the Eurosystem shall be removed from the list in accordance with a procedure specified by the ECB.

3. Where a type of banknote handling machine is successfully tested, the test results shall be valid throughout the euro area for one year from the end of the month in which the test was carried out, provided that it remains capable of detecting all counterfeit euro banknotes known to the Eurosystem during this period.’

12. Article 10 of Decision ECB/2010/14, under the heading ‘Eurosystem monitoring activities and corrective measures’, provides in paragraphs 1 and 3:

‘1. Subject to national law requirements, NCBs are authorised (i) to carry out on-site inspections, including unannounced ones, at cash handlers’ premises to monitor their banknote handling machines, in particular the machines’ capacity to check for authenticity and fitness and to trace suspect counterfeit euro banknotes and euro banknotes that are not clearly authenticated to the account holder; and (ii) to verify the procedures governing the operation and control of the banknote handling machines, the treatment of checked euro banknotes and any manual authenticity and fitness checking.

…

3. When an NCB detects non-compliance by a cash handler with the provisions of this Decision, it shall require the adoption by the cash handler of corrective measures within a specified time limit. Until the non-compliance is rectified, the requiring NCB may, on behalf of the ECB, prohibit the cash handler from recirculating the euro banknote denomination(s) of the series concerned. If the non-compliance is due to a failure of the type of banknote handling machine, this...