Opinion of the European Central Bank of 8 October 2008 on a proposal for two Council Regulations concerning medals and tokens similar to euro coins (CON/2008/45)

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Delegations will find attached ECB opinion CON/2008/45.

________________________

Encl.: CON/2008/45

OPINION OF THE EUROPEAN CENTRAL BANK

of 8 October 2008

on a proposal for two Council Regulations concerning medals and tokens similar to euro coins

(CON/2008/45)

Introduction and legal basis

On 25 September 2008 the European Central Bank (ECB) received a request from the Council of the

European Union for an opinion on a proposal for a Council Regulation amending Regulation (EC)

No 2182/2004 concerning medals and tokens similar to euro coins (hereinafter the `first proposed

regulation') and a proposal for a Council Regulation amending Regulation (EC) No 2183/2004 extending

to the non-participating Member States the application of Regulation (EC) No 2182/2004 concerning

medals and tokens similar to euro coins (hereinafter the `second proposed regulation') (hereinafter

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collectively referred to as the `proposed regulations') .

The ECB's competence to deliver an opinion is based on Article 123(4) of the Treaty establishing the

European Community for the first proposed regulation and on Article 105(4) of the Treaty for the second

proposed regulation, as it relates to currency matters. 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. 
    General observations

By clarifying the specific elements of the designs on legal tender euro coins that should not be reproduced

on medals and tokens that are similar to euro coins and establishing the criteria to be used by the

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Commission when preparing an opinion on compliance with Regulation (EC) No 2182/2004 , the first proposed regulation strengthens the protective provisions laid down in Regulation (EC) No 2182/2004

against confusion and fraud relating to medals and tokens that could be mistaken for euro coins. It also

improves transparency in the Commission's decision-making process.

Since euro coins may circulate beyond the territories of the Member States that have adopted the euro,

having a certain degree of protection of euro coins in Member States which have not yet adopted the euro

is of importance with regards to activities, such as counterfeiting, that may impair their credibility as legal

tender.

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COM(2008) 514 final, VOL I and VOL II.

  • 2. 
    Specific observations

Similarity of the design appearing on the surface of medals and tokens Compared to Article 2(c) of Regulation (EC) No 2182/2004, the new Article 2(1)(c) of the first

proposed regulation describes in more detail the designs or parts thereof appearing on the surface

of euro coins which may not be reproduced on medals and tokens. To enhance the protective

character of this provision, the ECB recommends including an express reference to the euro symbol

and to the terms `euro' and `euro cent' in the new Article 2(1)(c)(i). The ECB acknowledges that as

currently drafted, Article 2(1)(c)(i) does not exclude these terms or the euro symbol; however,

expressly mentioning them would contribute to clarifying the Commission's proposal and

strengthening the protective provisions. Indeed, the general public may be confused not only by a

reproduction of the terms `euro', `euro cent' or the euro symbol on medals or tokens, which is

prohibited according to the new Article 2(1)(a), but also by any design using elements that are

similar to those terms and that symbol.

Transparency in the decision-making process

According to the explanatory memorandum to the first proposed regulation, the Commission has

been working closely with the counterfeit coin experts referred to in the first paragraph of Article 4

of Commission Decision 2005/37/EC of 29 October 2004 establishing the European Technical and

Scientific Centre (ETSC) and providing for coordination of technical actions to protect euro coins

against counterfeiting 3 when considering compliance with Regulation (EC) No 2182/2004 and considers that this consultation should continue. However, the first proposed regulation only refers

to `consultation with the Member States' in the third recital. As a result, the ECB recommends that

an express reference to the counterfeit coin experts be included in the new Article 2(2), in

particular since one of the main purposes of the first proposed regulation is to make the decision-

making process more transparent.

Derogations by authorisation

The new Article 4 concerning derogations by authorisation does not provide for any procedure by

which economic operators may request such derogation from the protective provisions laid down in

Article 2. The ECB considers that appropriate wording should be added in this respect.

In the same vein, the decision-making process would be even more transparent if the first proposed

regulation included the conditions under which the Commission may authorise a derogation. More

specifically, the new Article 4 is vague as regards the `controlled conditions of utilisation' under

which medals and tokens may bear the terms `euro' or `euro cent' or the euro symbol and when `no

risk of confusion exists'. In order to enhance transparency and improve legal certainty, the new

Article 4 would benefit from more comprehensive and/or illustrative wording on the general

criteria to be applied by the Commission when authorising a derogation.

Application of the first proposed regulation to Monaco, San Marino and the Vatican City Monetary agreements are already in place (i) between France, on behalf of the European

Community, and Monaco; and (ii) between Italy, on behalf of the European Community, and San

Marino and the Vatican City. Under these agreements, Monaco, San Marino and the Vatican City

are entitled to issue euro coins which have the status of legal tender and have specific artistic

features on their national side. Because the visual characteristics of these euro coins are different

from the visual characteristics of the euro coins issued by each of the Member States that have

adopted the euro, the euro coins issued by Monaco, San Marino and the Vatican City should also

benefit from the protective provisions laid down in the first proposed regulation. Consequently, the

respective monetary agreements and/or the legislative provisions adopted pursuant to these

monetary agreements should be amended so that the content of the first proposed regulation, once

adopted, also applies to Monaco, San Marino and the Vatican City.

Consultation of the ECB on the second proposed regulation

Unlike the first proposed regulation, the preamble to the second proposed regulation does not refer

to the ECB's opinion. In view of the fact that both proposed regulations fall within the ECB's

fields of competence, the preamble to the second proposed regulation should be amended to refer

to the ECB's opinion.

  • 3. 
    Drafting proposals

Where the above advice would lead to changes in the proposed regulations, drafting proposals are set out

in the Annex.

Done at Frankfurt am Main, 8 October 2008.

The President of the ECB

Jean-Claude TRICHET

Drafting proposals

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Text proposed by the Commission Amendments proposed by the ECB Amendment 1

Article 2(1)(c)(i) mentioned in Article 1 of the first proposed regulation

`(i) any design, or parts thereof, appearing on the `(i) any design, or parts thereof, appearing on the surface of euro coins, including in particular the surface of euro coins, including in particular the twelve stars of the European Union, the image of terms "euro", "euro cent", the euro symbol, the

the geographical representation and the numerals, twelve stars of the European Union, the image of in the way depicted on euro coins, or' the geographical representation and the numerals, in the way depicted on euro coins, or'

Justification ­ See paragraph 2.1 of the opinion

Amendment 2

Article 2(2) mentioned in Article 1 of the first proposed regulation

`2. The Commission shall be competent to deliver `2. The Commission, after having consulted the an opinion as to:' counterfeit coin experts referred to in Article 4

of Commission Decision 2005/37/EC of 29 October 2004 establishing the European

Technical and Scientific Centre (ETSC) and

providing for coordination of technical actions

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to protect euro coins against counterfeiting , shall be competent to deliver an opinion as to:'

Justification ­ See paragraph 2.2 of the opinion

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Bold in the body of the text indicates where the ECB proposes inserting new text.

Amendment 3

Preamble to the second proposed regulation

`Having regard to the proposal from the `Having regard to the proposal from the Commission, Commission,

Having regard to the opinion of the European Having regard to the opinion of the European Parliament, Parliament,

Whereas:' Having regard to the opinion of the European Central Bank,

Whereas:'

Justification ­ See paragraph 2.5 of the opinion

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