Contents
Judgment of the Court (Fifth Chamber)20 April 2023note(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 of banknotes and their distribution to the public — Decision ECB/2010/14 — Article 6(2) — Detection of unfit euro banknotes — Automated fitness checking of banknotes — Minimum standards published on the website of the European Central Bank (ECB) and amended from time to time — Personal scope — Extent of cash handlers’ obligations — Binding force — Principle of legal certainty)In Case C‑772/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), made by decision of 8 December 2021, received at the Court on 14 December 2021, in the proceedings‘Brink’s Lithuania’ UABvLietuvos bankas,THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: L. Medina,Registrar: A. Lamote, Administrator,having regard to the written procedure and further to the hearing on 20 October 2022,after considering the observations submitted on behalf of:– the Lithuanian Government, by V. Kazlauskaitė-Švenčionienė, acting as Agent,– the European Commission, by J. Baquero Cruz, S. Delaude and A. Steiblytė, acting as Agents,– the European Central Bank, by A. Dambrauskaitė, M. Estrada-Cañamares, and F. Feyerbacher, acting as Agents, and by D. Sarmiento Ramírez-Escudero, abogado,after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,gives the following
Judgment
1This request for a preliminary ruling concerns (i) the interpretation of Article 6(2) of Decision ECB/2010/14 of the European Central Bank of 16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes (OJ 2010 L 267, p. 1), as amended by Decision ECB/2012/19 of the European Central Bank of 7 September 2012 (OJ 2012 L 253, p. 19) (‘Decision ECB/2010/14’), and (ii) the validity of the act entitled ‘Minimum standards for automated fitness checking of euro banknotes by banknote handling machines’ (‘the minimum standards for automated fitness checking’), published on the website of the European Central Bank (ECB).
2The request has been made in proceedings between ‘Brink’s Lithuania’ UAB and Lietuvos bankas (Bank of Lithuania) concerning a decision by which that national central bank ordered Brink’s Lithuania to adopt the measures necessary to reduce the tolerance level of its banknote handling machines, used for the automated fitness checking of euro banknotes intended for recirculation, to a maximum of 5%.
Legal context
Regulation No 1338/2001
3The purpose of Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting (OJ 2001 L 181, p. 6), as amended by Council Regulation (EC) No 44/2009 of 18 December 2008 (OJ 2009 L 17, p. 1) (‘Regulation No 1338/2001’), is, according to Article 1(1) thereof, to lay down measures necessary with a view to circulating euro notes and coins in such a manner as to protect them against counterfeiting.
4Recital 4 of that regulation states:‘Measures to protect the euro against counterfeiting concern the Community as part of its responsibility in respect of the single currency; the legal protection of the euro cannot be satisfactorily ensured by the individual Member States alone, since euro notes and coins will circulate beyond the territories of the participating Member States. It is therefore necessary to adopt Community legislation defining the measures necessary for euro notes and coins to circulate in the proper conditions to ensure the overall effective and consistent protection of the euro against activities likely to jeopardise its credibility, and thus to adopt appropriate measures so that everything is ready in good time before 1 January 2002.’
5Article 6 of that regulation, entitled ‘Obligations relating to credit institutions engaged in the processing and distribution to the public of notes and coins’, provides: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.3. Without prejudice to the dates fixed by the ECB for the implementation of the procedures it defines, Member States shall adopt the laws, regulations and administrative provisions for applying the first subparagraph of paragraph 1 of this Article by 31 December 2011 at the latest. They shall forthwith inform the [European] Commission and the ECB thereof.’
Decision ECB/2010/14
6Under recital 2 of Decision ECB/2010/14:‘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.’
7Article 1 of that decision, entitled ‘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].’
8Under Article 2 of that decision, entitled ‘Definitions’:‘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.…’
9Article 3 of Decision ECB/2010/14, entitled ‘General principles’, states, in paragraphs 1 and 3 to 5 thereof: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. However, this requirement shall not apply to euro banknotes that have been delivered directly to a cash handler by an NCB or by another cash handler that has already checked the euro banknotes for authenticity and fitness in this manner.5. Staff-operated machines, when used for the purpose of authenticity and fitness checking, … 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.’
10Article 6 of that decision, entitled ‘Detection of unfit euro banknotes’, provides, in paragraphs 2 and 3 thereof: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.’
11Under Article 9 of Decision ECB/2010/14, entitled ‘Eurosystem’s common test procedures for banknote handling machines’: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.4. The Eurosystem shall not be held liable if a successfully tested type of banknote handling machine is unable to classify and treat euro banknotes in accordance with Annex IIa or IIb.’
12Article 10 of that decision, entitled ‘Eurosystem monitoring activities and corrective measures’, states: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 may lead to its removal from the list referred to in Article 9(2).4. Where a cash handler does not cooperate with an NCB with regard to an inspection, this shall be considered as non-compliance.’
Decision ECB/2012/19
13Recital 3 of Decision ECB/2012/19 is worded as follows:‘The minimum standards for automated fitness checking of euro banknotes, as set out in Annex IIIa to Decision ECB/2010/14, constitute requirements applying to the functionalities of banknote handling machines. They are therefore only of interest to manufacturers of banknote handling machines and have no impact on the authenticity and fitness checking procedures laid down in Decision ECB/2010/14, with which cash handlers have to comply. As they are outside the scope of Decision ECB/2010/14, the minimum standards for automated fitness checking should be integrated into the rules and procedures for the testing of banknote handling machines, data collection and monitoring.’
The minimum standards for automated fitness checking
14Article 6 of Decision ECB/2010/14, in its original version, referred to Annex IIIa to that decision, entitled ‘Minimum standards for automated fitness checking of euro banknotes’. That annex was repealed by Decision ECB/2012/19. Since the entry into force of that latter decision, those minimum standards for automated fitness checking have been published on the ECB’s website in accordance with Article 6(2) of Decision ECB/2010/14. In the version applicable to the dispute in the main proceedings, the minimum standards for automated fitness checking provided, inter alia:‘The acceptable tolerance level for the fitness checks by banknote handling machines is 5%. This means that a maximum of 5% of the euro banknotes that do not meet the fitness criteria may be misclassified by the machines and sorted as fit.’
Guideline ECB/2010/NP16
15Guideline ECB/2010/NP16 of the European Central Bank of 16 September 2010 on rules and procedures for the testing of banknote handling machines, data collection and monitoring, as amended by Guideline ECB/2012/NP20 of 7 September 2012 (‘Guideline ECB/2010/NP16’), is a confidential document to which only the ECB and NCBs have access. At the Court’s request at the hearing, a non-confidential version of Guideline ECB/2010/NP16 was added to the file by the ECB.
16Article 2 of Guideline ECB/2010/NP16, entitled ‘Tests for banknote handling machines’, provides, in paragraphs 1 and 4 thereof:1. At the request of manufacturers, NCBs shall carry out verification tests of types of banknote handling machines prior to and upon their installation by cash handlers. ……4. NCBs shall carry out verification tests, annual tests, re-tests … in accordance with the common test procedures set out in Annex I.’
17Article 2a of that guideline, entitled ‘Minimum standards for automated fitness checking’, provides:‘The minimum standards for automated fitness checking by banknote handling machines referred to in Article 6 of Decision ECB/2010/14 shall be defined by the Eurosystem, set out in Annex IV to this Guideline and published on the ECB’s webpage.’
18Point 3.1.1 of Annex I to that guideline states:‘The fitness detection test is carried out using the most up-to-date fitness test set. … The fitness test set consists of euro banknotes with defects of the types set out in Annex IV. …’
19Annex IV to Guideline ECB/2010/NP16 provides, inter alia:‘This Annex lays down minimum standards for automated fitness checking of euro banknotes by banknote handling machines.In the course of the fitness checks, euro banknotes with any defect in respect of which a mandatory requirement has been defined as set out below are unfit.The acceptable tolerance level for the fitness checks by banknote handling machines is 5%. This means that a maximum of 5% of the euro banknotes that do not meet the fitness criteria may be misclassified by the machines and sorted as fit.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
20On 18 December 2018, officials of the Bank of Lithuania carried out an inspection at the branch of Brink’s Lithuania situated in Panevėžys (Lithuania). During that inspection, those officials verified whether the banknote handling machines used in that branch complied with the requirements governing the treatment of cash intended for recirculation. In particular, they tested the capacity of those machines to check euro banknotes for authenticity and fitness. The test revealed that one of the handling machines had sorted, as fit for circulation, 18.26% of the unfit euro banknotes contained in the test package used. For a second machine, that rate was 13.91%. The results were set out in an inspection report, which stated that the machines in question were nonetheless of a type that was on the list of successfully tested banknote handling machines featured on the ECB’s website.
21Having found that Brink’s Lithuania was in breach of the minimum standards for automated fitness checking, which require that the level of tolerance for the fitness checking of euro banknotes should not exceed 5%, the Director of the Cash Department of the Bank of Lithuania, by decision of 28 February 2019, ordered Brink’s Lithuania to adopt the necessary measures to put an end to that breach within five working days.
22According to that decision, the capacity of banknote handling machines to check euro banknotes for authenticity and fitness depends not only on the manufacturers of the machines, but also on their users – namely cash handlers – and, in particular, on the maintenance performed by those users in respect of those machines. The mere fact of using such machines with the standard factory settings, as required by Article 3(5) of Decision ECB/2010/14, cannot be regarded as evidence that a cash handler has complied with its obligations. Only inspections carried out at the cash handler’s premises can reveal whether appropriate use and maintenance of the machines is ensured, whether the requirements applicable to cash treatment are duly complied with and whether appropriate procedures are implemented to test those machines.
23On 29 March 2019, Brink’s Lithuania, in essence, asked the ECB to clarify whether cash handlers are required to comply with the minimum standards for automated fitness checking or whether such compliance is necessary only for manufacturers which wish to have their machines included on the list of successfully tested machines.
24On 17 April 2019, the ECB responded to that request, stating that the minimum standards for automated fitness checking are intended for manufacturers of banknote handling machines. By contrast, when cash handlers choose to carry out automated counterfeit and fitness checks, they are obliged only to use, with the standard factory settings, banknote handling machines which are recognised as complying with those minimum standards for automated fitness checking; they are not required to check themselves whether those machines comply with those standards.
25Following the dismissal, by the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), of its action seeking annulment of the decision of 28 February 2019, Brink’s Lithuania has brought an appeal before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), the referring court in the present case.
26The referring court states that it is common ground that Brink’s Lithuania, as a transporter of funds, must be regarded as a cash handler within the meaning of Article 2(2) of Decision ECB/2010/14. However, that court has doubts as to the interpretation and validity of Article 6(2) of that decision.
27It considers, first, that some elements of the wording of that latter provision suggest that the automated fitness checking of euro banknotes must be carried out in accordance with the minimum standards for automated fitness checking, which means that, as a result of automated fitness checks being subject to compliance with those minimum standards, cash handlers must ensure that those checks are carried out in compliance with those standards and – where appropriate – take, on their own initiative, all the measures that are relevant for that purpose. That interpretation is supported by the objective pursued by that decision, which is to maintain euro banknotes in good condition, since such a result cannot be guaranteed by the use of specific banknote handling machines with their standard factory settings as required by that decision.
28That said, the referring court considers that interpreting Article 6(2) of Decision ECB/2010/14 as requiring cash handlers to ensure that automated fitness checks are carried out in compliance with the minimum standards for automated fitness checking could conflict with Article 3(5) of that decision, which states that cash handlers must use their machines with the standard factory settings. If those cash handlers were required to ensure that automated fitness checks are carried out in compliance with those standards, this would mean that if a machine were to fail, they could use settings other than standard factory settings. Furthermore, such an interpretation would give rise to legal uncertainty, since it would be difficult for those cash handlers to determine how they could fulfil that obligation. Lastly, that interpretation would conflict with recital 3 of Decision ECB/2012/19, which states that the minimum standards for automated fitness checking are only of interest to manufacturers of banknote handling machines and have no impact on the automated fitness checking procedures which cash handlers have to perform.
29Second, even if Article 6(2) of Decision ECB/2010/14 were to be interpreted as not imposing on cash handlers the obligation to test their banknote handling machines in accordance with the minimum standards for automated fitness checking, the referring court is of the view that this does not necessarily preclude Member States from imposing such an obligation outside the normative framework set out by the European Union.
30Third, in the event that cash handlers are required to comply with the minimum standards for automated fitness checking, the referring court notes that, according to Article 6(2) of Decision ECB/2010/14, those standards are merely published on the ECB’s website and that they may be amended from time to time. The question arises as to whether, if those standards are not published in the Official Journal of the European Union, they can be regarded as binding, on the one hand, and a proper legal basis for an injunction against a cash handler, on the other, and whether, for those reasons, Article 6(2) of Decision ECB/2010/14 is compatible with the principle of legal certainty and Article 297(2) TFEU and is therefore valid.
31In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Should Article 6(2) of Decision ECB/2010/14 be interpreted as meaning that [the minimum standards for automated fitness checking] referred to in that rule must be complied with by a cash handler who carries out automated fitness checking of euro banknotes?(2) If, in accordance with Article 6(2) of Decision ECB/2010/14, [the minimum standards for automated fitness checking] referred to therein are applicable only to manufacturers of banknote handling machines (but not to cash handlers), should Article 6(2) of [that decision], read in conjunction with Article 3(5) thereof, be interpreted as precluding a provision of national law according to which the obligation to comply with those minimum standards does apply to a cash handler?(3) Do the minimum standards for automated fitness checking of euro banknotes by banknote handling machines, regard being had to the fact that they are published on the ECB’s website, comply with the principle of legal certainty and with Article 297(2) TFEU, and are they binding on, and capable of being relied upon as regards, cash handlers?(4) Is Article 6(2) of Decision ECB/2010/14, in so far as it provides that the minimum standards for automated fitness checking of euro banknotes are published on the ECB’s website and amended from time to time, contrary to the principle of legal certainty and to Article 297(2) TFEU, and therefore invalid?’
Consideration of the questions referred
The first question
32By its first question, the referring court asks whether Article 6(2) of Decision ECB/2010/14 is to be interpreted as meaning that the minimum standards for automated fitness checking must be complied with by a cash handler who carries out automated fitness checks in respect of euro banknotes.
33As a preliminary point, it should be borne in mind that, as is apparent from Article 1 thereof, Decision ECB/2010/14 implements Article 6(1) of Regulation No 1338/2001, which lays down the principle that euro banknotes and coins should be checked for authenticity for the purposes of combating counterfeiting and, to that end, places institutions engaged in the sorting and distribution to the public of banknotes as a professional activity – including cash handlers – under an obligation to ensure that counterfeits are detected in accordance with the procedures laid down by the ECB and to withdraw from circulation all euro banknotes received by them which they know or have sufficient reason to believe to be counterfeit, and to hand such notes over immediately to the competent national authorities.
34On the basis of Article 6(1) of Regulation No 1338/2001, the ECB adopted Decision ECB/2010/14, which, according to recital 2 thereof, seeks to protect the integrity of euro banknotes and to enable a proper detection of counterfeits, which presupposes ensuring that euro banknotes in circulation are maintained in good condition to ensure that they can be easily and reliably checked for genuineness.
35As the Advocate General stated in point 62 of her Opinion, the normative framework set out by, inter alia, Decision ECB/2010/14, for the purposes of ensuring that only euro banknotes in good condition are recirculated to the public, relies, in essence, on three main pillars, namely: (i) the production and configuration of banknote handling machines in conformity with the minimum standards for automated fitness checking, which, after being successfully tested by an NCB at the request of a manufacturer, are listed by type on the ECB’s website; (ii) the imposition of a set of obligations concerning cash handlers, in particular regarding automated fitness checks on euro banknotes; and (iii) the recognition of monitoring and supervisory powers to NCBs to ensure that the relevant entities comply with their respective obligations.
36Among the obligations of cash handlers, Article 3(1) of that decision provides that they are required to check euro banknotes for authenticity and fitness in line with procedures laid down in that decision.
37To that end, Article 3(3) of Decision ECB/2010/14 provides that cash handlers may comply with that obligation to check euro banknotes for authenticity and fitness by putting in place either a manual checking procedure involving a trained staff member or an automated checking procedure using a banknote handling machine which has been successfully tested by an NCB. However, Article 3(4) of that decision provides that euro banknotes intended for recirculation via customer-operated machines or cash dispensers must be subject to an automated checking procedure, unless those notes have been delivered directly to a cash handler by an NCB or another cash handler who has already checked the euro banknotes for authenticity and fitness in that manner.
38As regards, more specifically, the detailed rules for carrying out that automated fitness checking, Article 6(2) of Decision ECB/2010/14 provides that such checking must 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’. That provision does not specify whether the minimum standards to which it refers must be complied with by institutions engaged in the sorting and distribution to the public of banknotes or whether those standards apply only to manufacturers which wish to have their machines included on the list of successfully tested machines.
39That said, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives which it pursues (see, to that effect, in particular, judgment of 22 December 2022, Les Entreprises du Médicament, C‑20/22, EU:C:2022:1028, paragraph 18 and the case-law cited).
40In the present case, as regards the wording of Article 6(2) of Decision ECB/2010/14, it is true that, in some of its language versions, the grammatical structure of that wording could suggest that the words ‘according to the minimum standards’ relate to the verb ‘carried out’ and thus are intended to specify the nature of the checks to be carried out.
41However, as the Advocate General observed in point 45 of her Opinion, as well as in footnote 15 thereto, in other language versions, such as the Spanish, English, French, Italian and Portuguese versions, the structure of that wording tends to support the opposite interpretation, namely that that phrase refers to the tests that banknote handling machines must pass before cash handlers may use such machines for the purposes of complying with their obligations under Decision ECB/2010/14 where they are required to put in place automated authenticity and fitness checks in respect of euro banknotes or have chosen to do so.
42It should be borne in mind that, according to settled case-law, the words or grammatical structure used in certain language versions of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions (see, to that effect, judgment of 26 January 2021, Hessischer Rundfunk, C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 65).
43On the other hand, irrespective of the language version under consideration, interpreting Article 6(2) of Decision ECB/2010/14 as meaning that the words ‘according to the minimum standards’ relate to the automated fitness checking carried out would render the words ‘successfully tested’, which are also used in that provision, largely meaningless since that provision would no longer specify the standards against which banknote handling machines must be successfully tested.
44Consequently, the wording of Article 6(2) of Decision ECB/2010/14 suggests that the minimum standards referred to therein do not apply to the automated fitness checking that cash handlers carry out in the course of their activity, but to the tests that banknote handling machines must pass before they can be used by cash handlers.
45Such an interpretation is, moreover, supported both by the context of Article 6(2) of Decision ECB/2010/14 and by the objectives pursued by that provision.
46First, as regards the context of that provision, it is apparent from paragraphs 3 to 5 of Article 3 of that decision that, in the event of automated fitness checking, cash handlers must use banknote handling machines which have been successfully tested by an NCB in accordance with the ECB’s minimum standards referred to in Article 6(2) of that decision and that those machines must be used only for the denominations and series of euro banknotes listed on the ECB’s website, with the standard factory settings, including any updates thereof. If the ECB had intended to require cash handlers to ensure that automated fitness checks be carried out in accordance with those minimum standards, it would not have been necessary either to provide that they could rely to that end only on banknote handling machines which had passed certain tests or to specify the conditions under which those machines would have to be used for the purpose of carrying out such checks. By contrast, such requirements imply that the use of those machines is considered, in Decision ECB/2010/14, to be the means by which, in the event of automated fitness checking, cash handlers are to fulfil their obligation to ensure the fitness of banknotes.
47Second, as regards the objectives pursued by Article 6(2) of Decision ECB/2010/14, as the Advocate General stated in points 48 to 50 of her Opinion, it should be noted that, before being amended by Decision ECB/2012/19, Article 6 of Decision ECB/2010/14 provided that fitness checking of euro banknotes had to be carried out in accordance with the minimum standards laid down in Annexes IIIa and IIIb thereto. In particular, Annex IIIa to Decision ECB/2010/14 laid down the ‘minimum standards for automated fitness checking of euro banknotes by banknote handling machines’, whereas Annex IIIb established the ‘minimum standards for manual fitness checking of euro banknotes by trained staff members’. As is apparent from recital 3 thereto, Decision ECB/2012/19 repealed Annex IIIa to Decision ECB/2010/14 with the express aim of integrating the minimum standards for automated fitness checking – which had hitherto been outside the scope of Decision ECB/2010/14 – among the rules and procedures for the testing of banknote handling machines, data collection and monitoring. At the same time, a reference to those standards was incorporated into Guideline ECB/2010/NP16, which lays down the rules and procedures for the testing of types of banknote handling machines. It follows from paragraphs 1 and 4 of Article 2 of that guideline, read in conjunction with Article 2a thereof, as well as point 3.1.1 of Annex I and Annex IV thereto, that those standards have since applied to tests carried out on those types of machines.
48In addition, recital 3 of Decision ECB/2012/19 states unequivocally that the minimum standards for automated fitness checking ‘are … only of interest to manufacturers of banknote handling machines and have no impact on the authenticity and fitness checking procedures laid down in Decision ECB/2010/14, with which cash handlers have to comply’.
49Consequently, it is apparent from Decision ECB/2012/19 that Article 6(2) of Decision ECB/2010/14 was amended with the aim of specifying that the minimum standards referred to in that provision apply exclusively to tests carried out by manufacturers on their types of banknote handling machines.
50Accordingly, Article 6(2) of Decision ECB/2010/14 does not require a cash handler who carries out automated fitness checks in respect of euro banknotes itself to ensure that those automated fitness checks are carried out in accordance with the minimum standards referred to in that provision. By contrast, manufacturers must comply with such standards if they wish to have a machine type they produce registered on the ECB’s website as being capable of checking the fitness and authenticity of banknotes of a specific denomination and series.
51However, as the Advocate General stated, in essence, in points 66 to 68 of her Opinion, it must be held that cash handlers are nevertheless required to comply with the obligations imposed on them by Decision ECB/2010/14, including, in particular, those resulting from Article 3(1) and Article 10(1) of that decision, to carry out automated fitness checks and to put in place procedures for checking the banknote handling machines that they use.
52Those obligations necessarily imply that cash handlers are required to use banknote handling machines which are capable of performing those checks and, in particular, of detecting banknotes which are either unsuitable for recirculation or deteriorated, which means ensuring that the machines used are in a state of operation, maintenance and calibration suitable for checking the fitness of euro banknotes. Otherwise, cash handlers would fail to comply with the more general obligation imposed on them by Article 6(1) of Regulation No 1338/2001 to participate in the fight against counterfeiting.
53Consequently, a cash handler whose banknote handling machines do not respect the 5% tolerance level laid down by the minimum standards for automated fitness checking cannot refuse to comply with an injunction addressed to it on the basis of Article 10(3) of Decision ECB/2010/14 by an NCB, following an inspection at that cash handler’s premises, ordering it to remedy that situation.
54In the light of the foregoing, Article 6(2) of Decision ECB/2010/14 must be interpreted as meaning that the minimum standards referred to in that provision do not apply to cash handlers when they carry out automated fitness checks in respect of euro banknotes. However, Article 3(1) and Article 10(1) of that decision, read in conjunction with Article 6(1) of Regulation No 1338/2001, must be interpreted as meaning that cash handlers are required to adopt the necessary measures to remedy a situation where an inspection by an NCB has shown that their banknote handling machines are not capable of detecting, below a 5% tolerance level, that euro banknotes are unsuitable for recirculation.
The second question
55By its second question, the referring court asks, in essence, whether, in the event that it follows from the answer to the first question that the minimum standards referred to in Article 6(2) of Decision ECB/2010/14 apply only to manufacturers of banknote handling machines, that provision, read in conjunction with Article 3(5) of that decision, is to be interpreted as precluding a Member State from requiring cash handlers to comply with those minimum standards when they carry out automated fitness checks in respect of euro banknotes.
56In that regard, it should be recalled that the measures necessary for the use of the euro as the single currency, referred to in Article 133 TFEU, fall within the area of monetary policy, for which the Union has exclusive competence under Article 3(1)(c) TFEU. As is apparent from recital 4 of Regulation No 1338/2001, common rules and procedures relating to the protection of the euro against counterfeiting, which include those relating to checking the fitness of euro banknotes and coins, constitute measures necessary for the use of that currency.
57Since the Union therefore has the exclusive competence to check the authenticity and fitness of banknotes, Member States may not adopt provisions in that area without being empowered to do so by EU law. Decision ECB/2010/14 does not in any way empower Member States to impose, on their own initiative, an obligation on cash handlers to comply with the ECB’s minimum standards referred to in Article 6(2) of that decision when they carry out automated fitness checks in respect of euro banknotes.
58It is true that Article 6(3) of Decision ECB/2010/14 authorises NCBs to lay down stricter standards for one or more denominations or series of euro banknotes. However, as is apparent from the use of the words ‘stricter standards’, that option is limited to the content of the requirements that machines must fulfil in order for them to handle one or more denominations or series of euro banknotes. It cannot therefore authorise NCBs to extend the personal scope of the ECB’s minimum standards referred to in Article 6(2) of that decision by requiring cash handlers to ensure that, in the event of automated fitness checks carried out using a type of banknote handling machine which has been successfully tested for the purposes of Article 6(2) of Decision ECB/2010/14, those checks are carried out in compliance with those minimum standards.
59Consequently, Article 6(2) of Decision ECB/2010/14, read in conjunction with Article 3(5) of that decision, must be interpreted as precluding a Member State from requiring cash handlers to comply with the ECB’s minimum standards referred to therein when they carry out automated fitness checks in respect of euro banknotes.
The third and fourth questions
60By its third and fourth questions, the referring court asks, in essence, whether the minimum standards for automated fitness checking, as well as Article 6(2) of Decision ECB/2010/14, comply with the principle of legal certainty and with Article 297(2) TFEU in so far as that provision of that decision provides that those standards are published on the ECB’s website and amended from time to time.
61In that regard, it is common ground that the dispute in the main proceedings is between an NCB and a cash handler. It is apparent from the answer to the first question that the minimum standards for automated fitness checking do not apply to cash handlers when they carry out automated fitness checks in respect of euro banknotes. Accordingly, it is not necessary to answer the third and fourth questions.
Costs
62Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules:
1.Article 6(2) of Decision ECB/2010/14 of the European Central Bank of 16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes, as amended by Decision ECB/2012/19 of the European Central Bank of 7 September 2012,must be interpreted as meaning that the minimum standards referred to in that provision do not apply to cash handlers when they carry out automated fitness checks in respect of euro banknotes.However, Article 3(1) and Article 10(1) of Decision ECB/2010/14, as amended, read in conjunction with Article 6(1) of Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting, as amended by Council Regulation (EC) No 44/2009 of 18 December 2008,must be interpreted as meaning that cash handlers are required to adopt the necessary measures to remedy a situation where an inspection by a national central bank of a Member State whose currency is the euro has shown that their banknote handling machines are not capable of detecting, below a 5% tolerance level, that euro banknotes are unsuitable for recirculation.
2.Article 6(2) of Decision ECB/2010/14, as amended by Decision ECB/2012/19, read in conjunction with Article 3(5) of Decision ECB/2010/14, as amended,must be interpreted as precluding a Member State from requiring cash handlers to comply with the European Central Bank’s minimum standards referred to therein when they carry out automated fitness checks in respect of euro banknotes.
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