report parliamentary committee draft, 11 January 2024
On the proposal for a regulation of the European Parliament and of the Council on the legal tender of euro banknotes and coins
Document ECON-PR-758001 · (COM(2023)0364 – C90216/2023 – 2023/0208(COD))
Committee on Economic and Monetary Affairs · Rapporteur: Stefan Berger
AI:In short
This is the rapporteur's draft report on the Commission proposal for a regulation on the legal tender of euro banknotes and coins. It adopts a first-reading position with amendments. The amendments add a new Article 5a banning payees from using non-negotiated contractual terms or commercial practices, such as 'no cash' signs, that exclude euro cash, and place the burden of proof on the payee for agreed alternative payment methods. They delete Article 6, which empowered the Commission to adopt delegated acts identifying additional exceptions to mandatory acceptance. They require Member States to monitor access to cash using common indicators weighted by national indicators, and list criteria such as ATM distance, deposit availability, banknote values, counter services, accessibility and charges. ATM providers and payment service providers must carry out an impact assessment before closing a branch or ATM and notify the national competent authority. The Commission must consult the European Central Bank when preparing implementing acts, and the delegation period is set at five years with a three-month objection period.
Position. The rapporteur proposes that the committee adopt a first-reading position with amendments: adding a ban on ex ante unilateral exclusions of cash, deleting the Commission's power to adopt additional exceptions, and strengthening monitoring and consultation requirements.
Key points
- The draft report adopts a first-reading position on the proposed regulation on the legal tender of euro banknotes and coins.
- A new recital states the regulation applies to payment obligations giving rise to pecuniary debts settled in cash, but not to distance payments.
- Member States should monitor access to cash using common indicators, including density of access points, withdrawal and deposit conditions, fees, networks, urban-rural and socio-economic variations, and access difficulties for certain groups.
- The Commission may adopt implementing acts addressed to a specific Member State when national measures are insufficient or ex ante unilateral exclusions of cash undermine mandatory acceptance or access to cash.
- A new recital states that unilateral practices such as non-acceptance of cash by public entities, including public hospitals and museums, should be considered ex ante unilateral exclusions of cash.
- A new recital states that payees subject to mandatory acceptance of digital euro should not unilaterally exclude cash through non-negotiated contractual terms or commercial practices.
- The definition of 'ex ante unilateral exclusions of cash' is amended to include use of a pre-formulated standard form contract.
- A new Article 5a prohibits payees from using non-negotiated contractual terms or commercial practices, including 'no cash' signs, that exclude euro cash, and such terms are not binding on the payer.
- Article 6, which empowered the Commission to adopt delegated acts identifying additional exceptions to mandatory acceptance, is deleted.
- Member States must monitor access to cash using common indicators weighted by national indicators, assessing criteria such as ATM distance, deposit availability, banknote values, counter services, accessibility and charges.
- ATM providers and payment service providers intending to close a branch or ATM must perform an impact assessment, notify the national competent authority, and take remedial measures if access is insufficient.
- The Commission must consult the European Central Bank when preparing implementing acts, and the delegation period is set at five years with a three-month objection period.
Who is affected
- Payees subject to mandatory acceptance of euro banknotes and coins, who face a ban on non-negotiated terms or practices excluding cash.
- Member States, which must monitor access to cash using common indicators and may face Commission implementing acts.
- ATM providers and payment service providers, which must assess and notify before closing branches or ATMs.
- Public entities such as public hospitals and museums, whose non-acceptance of cash is considered an ex ante unilateral exclusion.
- The European Central Bank, which must be consulted when the Commission prepares implementing acts.
Figures and deadlines
- five years, the period for which delegated acts are conferred on the Commission.
- nine months before the end of each five-year period, deadline for the Commission to draw up a report on the delegation of power.
- three months before the end of each period, deadline for Parliament or the Council to oppose extension of the delegation.
- three months, the period for objection to a delegated act by Parliament or the Council.
- three months, the extension of the objection period at the initiative of Parliament or the Council.
Legal basis. Article 294(2) and 133 of the Treaty on the Functioning of the European Union.
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Draft european parliament legislative resolution 136 paragraphs
(COM(2023)0364 – C90216/2023 – 2023/0208(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
–having regard to the Commission proposal to Parliament and the Council (COM(2023)0364),
–having regard to Article 294(2) and 133 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90216/2023),
–having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
–having regard to Rule 59 of its Rules of Procedure,
–having regard to the report of the Committee on Economic and Monetary Affairs (A90000/2024),
1.Adopts its position at first reading hereinafter set out;
2.Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;
3.Instructs its President to forward its position to the Council, the Commission and the national parliaments.
Amendment 1
Read the rest (124 paragraphs)
Proposal for a regulation
Recital 4 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (4a) This Regulation should apply to payment obligations that give rise to pecuniary debts to be settled in cash. This Regulation should not apply to payments for goods or services purchased at a distance, whether online or through any means of distance communication. |
Or. en
Amendment 2
Proposal for a regulation
Recital 7
| Text proposed by the Commission | Amendment |
|---|---|
| (7) With a view to an effective implementation of their obligation to ensure sufficient and effective access to cash, Member States should regularly monitor the level of access to cash throughout their territory, in all their different regions, including urban and non-urban areas, on the basis of common indicators which allow for comparisons between the Member States. Common indicators could include factors that affect access to cash, such as density of cash access points in relation to population, withdrawal and deposit conditions, including fees, the existence of different networks with different access modalities for customers, urban-rural and socio-economic variations, and access difficulties for certain population groups. If in the light of their assessment access to cash is deemed sufficient and effective on their territory, Member States would not need to adopt specific measures in relation to their respective obligation. However, they would need to continue monitoring the situation. If a Member State concludes that access to cash is not sufficient and effective in all or part of its territory, or is at risk of deteriorating in the absence of action, appropriate remedial measures should be taken to remedy the situation, such as geographic access requirements on payment service providers providing cash withdrawal services to maintain cash services at a sufficient number of their branch offices where they conduct business, or through an appointed agent for online only credit institutions, or maintain a sufficient density of automated teller machines (ATMs) where they conduct business taking into account a good geographic spread in relation to population, also taking into account possible pooling of ATMs. Other remedial measures could include recommendations addressed to non-credit institutions, such as independent ATM operators, retailers or post offices, encouraging to complement the cash services of banks. | (7) With a view to an effective implementation of their obligation to ensure sufficient and effective access to cash, Member States should regularly monitor the level of access to cash throughout their territory, in all their different regions, including urban and non-urban areas, on the basis of common indicators which allow for comparisons between the Member States. Common indicators could include factors that affect access to cash, such as density of cash access points in relation to population, withdrawal and deposit conditions, including fees, the existence of different networks with different access modalities for customers, urban-rural and socio-economic variations, and access difficulties for certain population groups. If in the light of their assessment access to cash is deemed sufficient and effective on their territory, Member States would not need to adopt specific measures in relation to their respective obligation. However, they would need to continue monitoring the situation. If a Member State concludes that access to cash is not sufficient and effective in all or part of its territory, or is at risk of deteriorating in the absence of action, appropriate remedial measures should be taken to remedy the situation, such as geographic access requirements on payment service providers providing cash withdrawal services to maintain cash services at a sufficient number of their branch offices where they conduct business, or through an appointed agent for online only credit institutions, or maintain a sufficient density of automated teller machines (ATMs) where they conduct business taking into account a good geographic spread in relation to population, also taking into account possible pooling of ATMs. Other remedial measures could include recommendations addressed to non-credit institutions, such as independent ATM operators, retailers or post offices, encouraging to complement the cash services of banks. To facilitate monitoring by Member States, payment services providers and ATM providers should notify their national competent authority in writing of the closure of each ATM or bank branch and share an assessment of whether the sufficient and efficient access to cash remains guaranteed as defined by the common indicators. Where the level of access to cash is not sufficient and effective, the provider responsible for the closure should take measures to remedy that situation. |
Or. en
Amendment 3
Proposal for a regulation
Recital 9
| Text proposed by the Commission | Amendment |
|---|---|
| (9) The Commission should be empowered to adopt implementing acts addressed to a specific Member State when the measures proposed by that Member State appear insufficient or in cases where, in spite of the findings of the annual report sent by that Member State, ex ante unilateral exclusions of cash are undermining the principle of mandatory acceptance of payments in euro banknotes and coins and/or where access to cash is not sufficient and effective. Such an implementing act could require the Member State concerned to take measures such as those outlined in recitals 7 and 8, or measures that have been considered effective in other Member States in ensuring that the principles of mandatory acceptance of payments in cash or sufficient and effective access to cash are not undermined. | (9) The Commission should be empowered to adopt implementing acts addressed to a specific Member State when the measures proposed by that Member State appear insufficient or in cases where, in spite of the findings of the annual report sent by that Member State, ex ante unilateral exclusions of cash are undermining the principle of mandatory acceptance of payments in euro banknotes and coins and/or where access to cash is not sufficient and effective. Such an implementing act could require the Member State concerned to take measures such as those outlined in recitals 7 and 8, or measures that have been considered effective in other Member States in ensuring that the principles of mandatory acceptance of payments in cash or sufficient and effective access to cash are not undermined. When preparing those implementing acts, the Commission should consult the European Central Bank. |
Or. en
Amendment 4
Proposal for a regulation
Recital 11
| Text proposed by the Commission | Amendment |
|---|---|
| (11) In order to ensure that additional exceptions to the mandatory acceptance of euro cash may be introduced at a later stage if they are required, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to supplement this Regulation by introducing additional exceptions to the principle of mandatory acceptance for the euro area as a whole. The Commission may only adopt such additional exceptions if they are necessary, proportionate to their aim, and preserve the effectiveness of the legal tender status of euro cash. The power of the Commission to adopt delegated acts for the introduction of additional exceptions to the mandatory acceptance of accept euro cash should be without prejudice to the possibility for Member States, pursuant to their own powers in areas of shared competence, to adopt national legislation introducing exceptions to the mandatory acceptance deriving from the legal tender status in accordance with the conditions laid down by the Court of Justice of the European Union in the judgment in Joined Cases C-422/19 and C-423/19. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. | deleted |
Or. en
Amendment 5
Proposal for a regulation
Recital 11 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (11a) Unilateral practices, such as the non-acceptance of cash payments by public entities, including public hospitals and public museums, have not been regulated procedures for the settlement of pecuniary obligations provided for in the national law of a Member State. They should be considered ex ante unilateral exclusions of cash. |
Or. en
Amendment 6
Proposal for a regulation
Recital 12 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (12a) In order to ensure that people and businesses benefit from a wide acceptance network and are able to use the digital euro effectively in their day-to-day payments, payees who are subject to the mandatory acceptance of payments in digital euro should not unilaterally exclude payments in cash through contractual terms that have not been individually negotiated or through commercial practices. |
Or. en
Amendment 7
Proposal for a regulation
Article 3 – paragraph 1 – point 4
| Text proposed by the Commission | Amendment |
|---|---|
| 4. ‘ex ante unilateral exclusions of cash’ means a situation when a retailer or service provider unilaterally excludes cash as a payment method for example by introducing a ‘no cash’ sign. In this case, the payer and payee do not freely agree to a means of payment for a purchase; | 4. ‘ex ante unilateral exclusions of cash’ means a situation when a retailer or service provider unilaterally excludes cash as a payment method for example by introducing a ‘no cash’ sign or by using a pre-formulated standard form contract. In this case, the payer and payee do not freely agree to a means of payment for a purchase; |
Or. en
Amendment 8
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1 – point b
| Text proposed by the Commission | Amendment |
|---|---|
| (b) where, prior to the payment, the payee has agreed with the payer on a different means of payment. | (b) where, prior to the payment, the payee has agreed with the payer on a different means of payment, in accordance with Article 5a. |
Or. en
Amendment 9
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 2 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| For the purposes of point (b), the burden of proof to establish that such an agreement existed in a particular case shall be on the payee. |
Or. en
Amendment 10
Proposal for a regulation
Article 5 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| Article 5a | |
| Prohibition of ex ante unilateral exclusions of cash | |
| Payees subject to the obligation to accept euro banknotes and coins shall not use contractual terms that have not been individually negotiated or commercial practices, including ‘no cash’ signs, that have the object or the effect of excluding the use of euro banknotes and coins by payers of monetary debts denominated in euro. Such contractual terms or commercial practices shall not be binding on the payer. A contractual term shall be regarded as not having been individually negotiated where it has been drafted in advance and where the payer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard form contract. |
Or. en
Amendment 11
Proposal for a regulation
Article 6
| Text proposed by the Commission | Amendment |
|---|---|
| Article 6 | deleted |
| Additional exceptions to the principle of mandatory acceptance of euro banknotes and coins of a monetary law nature | |
| The Commission is empowered to adopt delegated acts in accordance with Article 10 to supplement this Regulation by identifying additional exceptions of a monetary law nature to the principle of mandatory acceptance. Those exceptions shall be justified by an objective of public interest and proportionate to that aim, shall not undermine the effectiveness of the legal tender status of euro cash, and shall only be permitted provided that other means for the payment of monetary debts are available. When preparing those delegated acts, the Commission shall consult the European Central Bank. |
Or. en
Amendment 12
Proposal for a regulation
Article 8 – paragraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall ensure sufficient and effective access to cash throughout their territory, in all their different regions, including urban and non-urban areas. In order to ensure sufficient and effective access to cash, Member States shall monitor access to cash throughout their territory, in all their different regions, including urban and non-urban areas, on the basis of the common indicators adopted by the Commission and shall assess the situation. | 1. Member States shall ensure sufficient and effective access to cash throughout their territory, in all their different regions, including urban and non-urban areas. In order to ensure sufficient and effective access to cash, Member States shall monitor access to cash throughout their territory, in all their different regions, including urban and non-urban areas, on the basis of the common indicators adopted by the Commission, weighted according to individual national indicators connected with national cash demand, and shall assess the situation. Common indicators shall assess at least the following criteria: |
Or. en
Amendment 13
Proposal for a regulation
Article 8 – paragraph 1 – point a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the access to ATMs including the geographical distance by road and public transport and the number of ATMs in relation to population density; |
Or. en
Amendment 14
Proposal for a regulation
Article 8 – paragraph 1 – point b (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the availability of ATMs for cash deposits and cash funding of digital euro accounts; |
Or. en
Amendment 15
Proposal for a regulation
Article 8 – paragraph 1 – point c (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (c) the availability of banknotes of different values at ATMs; |
Or. en
Amendment 16
Proposal for a regulation
Article 8 – paragraph 1 – point d (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (d) the availability of cash services over the counter including opening hours of bank branches; |
Or. en
Amendment 17
Proposal for a regulation
Article 8 – paragraph 1 – point e (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (e) the accessibility of ATMs and bank branches in line with Directive (EU) 2019/882; and |
Or. en
Amendment 18
Proposal for a regulation
Article 8 – paragraph 1 – point f (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (f) the charges for cash services at ATMs and over the counter. |
Or. en
Amendment 19
Proposal for a regulation
Article 8 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 1a. ATM providers and payment service providers who intend to close a bank branch or an ATM shall perform a detailed impact assessment based on the common indicators to ensure that sufficient and effective access to cash remains guaranteed after the closure of the bank branch or ATM. They shall notify their findings to their national competent authority in writing. Where the level of access to cash is not sufficient and effective, the provider responsible for the closure shall take measures to remedy that situation. |
Or. en
Amendment 20
Proposal for a regulation
Article 9 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of Articles 7 and 8, the Commission shall adopt implementing acts of general application on a set of common indicators Member States shall use to monitor and assess the acceptance of payments in cash and access to cash throughout their territory, in all their different regions, including urban and non-urban areas. Those implementing acts shall be adopted [within X months after the entry into force of this Regulation] in accordance with the advisory procedure referred to in Article 11. When preparing those implementing acts, the Commission shall consult the European Central Bank. | 2. For the purposes of Articles 7 and 8, the Commission shall adopt implementing acts of general application on a set of common indicators Member States shall consider together with individual national indicators to monitor and assess the acceptance of payments in cash and cash supply in line with demand throughout their territory, in all their different regions, including urban and non-urban areas. Those implementing acts shall be adopted [within X months after the entry into force of this Regulation] in accordance with the advisory procedure referred to in Article 11. When preparing those implementing acts, the Commission shall consult the European Central Bank. |
Or. en
Amendment 21
Proposal for a regulation
Article 9 – paragraph 4
| Text proposed by the Commission | Amendment |
|---|---|
| 4. If a Member State considers that the level of acceptance of payments in cash undermines mandatory acceptance of euro banknotes and coins or that sufficient and effective access to cash is not ensured, it shall indicate in its annual report the remedial measures it commits to take in order to comply with the obligations set out in Articles 7 and 8. The remedial measures shall enter into force without undue delay. | 4. If a Member State considers that the mandatory acceptance of payments in cash is undermined or that sufficient and effective access to cash is not ensured, it shall indicate in its annual report the remedial measures it commits to take in order to comply with the obligations set out in Articles 7 and 8. The remedial measures shall enter into force without undue delay. |
Or. en
Amendment 22
Proposal for a regulation
Article 9 – paragraph 5
| Text proposed by the Commission | Amendment |
|---|---|
| 5. The Commission shall examine the annual reports in close consultation with the European Central Bank. If the remedial measures proposed by a Member State pursuant to paragraph 4 appear insufficient, or if the Commission considers that the acceptance of cash payments or sufficient and effective access to cash in a Member State is not in line with the obligations set out in Articles 7 and 8 despite the findings of the annual report, the Commission shall adopt implementing acts providing for adequate and proportionate measures that shall be adopted by the Member State concerned within the deadline laid down in the respective implementing act. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 11. | 5. The Commission shall examine the annual reports in close consultation with the European Central Bank. If the remedial measures proposed by a Member State pursuant to paragraph 4 appear insufficient, or if the Commission considers that the acceptance of cash payments or sufficient and effective access to cash in a Member State is not in line with the obligations set out in Articles 7 and 8 despite the findings of the annual report, the Commission shall adopt implementing acts providing for adequate and proportionate measures that shall be adopted by the Member State concerned within the deadline laid down in the respective implementing act. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 11. When preparing those implementing acts, the Commission shall consult the European Central Bank. |
Or. en
Amendment 23
Proposal for a regulation
Article 10 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. The power to adopt delegated acts referred to in Article 6 shall be conferred on the Commission for an indeterminate period of time from [date of entry into force of this Regulation]. | 2. The power to adopt delegated acts referred to in Article 6 shall be conferred on the Commission for a period of five years from [date of entry into force of this Regulation]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of each five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. |
Or. en
Amendment 24
Proposal for a regulation
Article 10 – paragraph 3
| Text proposed by the Commission | Amendment |
|---|---|
| 3. The power to adopt delegated acts referred to in Article 6 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. | deleted |
Or. en
Amendment 25
Proposal for a regulation
Article 10 – paragraph 6
| Text proposed by the Commission | Amendment |
|---|---|
| 6. A delegated act adopted pursuant to Article 6 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of one month of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by one month at the initiative of the European Parliament or of the Council. | 6. A delegated act adopted pursuant to Article 6 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council. |
Or. en