June 8, 2020 | It had always struck me as odd, that the European Central Bank (ECB) and the EU Commission based their whole justification of national restrictions on the use of the legal tender of the European currency union on a sentence in the preamble of a regulation which is now more than 20 years old. I thought: If the EU Council had wanted to give the Member States the right to intervene in the monetary order of the currency union in this way, they would have mentioned it in the EU-Treaty (TFEU) or any of the other laws and regulations that came into effect since 1998. Instead, Article 128 TFEU declares euro notes and coins legal tender and the whole TFEU contains no reference to possible restrictions on the use of this legal tender.
Now I can go beyond saying it seems odd. I can prove that it is wrong.
Since every EU citizen has the right to consult the documents in the archives of the EU institutions, I asked the ECB for access to the relevant documents in the archives on December 6, 2019. After two months of not hearing anything except an acknowledgement of receipt, I wrote a friendly reminder on February 10, which was answered with an apology two days later. The ECB promised to quickly compile a list of available documents as a first step. Two more weeks later, on February 26, I received the reply that nothing was available and that I should please contact the EU Council and the Commission.
On 17 March, I asked the EU Commission and the EU Parliament by e-mail for documents from the archives there concerning the ratio legis of the regulation on the introduction of the euro and of its recital 19. I promptly received an answer from the Commission, which I interpreted as “we have nothing”, namely: “The COREPER documents were produced by the Council of the EU. You can request this document from the service of the Historical Archives of the Council of the EU: email@example.com“.
So I addessed my next request to the EU-Council.
The European Parliament was much more forthcoming, but, as I had expected, there was little in the documents they sent me on April 14 that I found illuminating.
Then, a good month after the first refusal, on April 20, I received a call from the Principal Transparency Officer of the EU Commission asking what exactly I would be interested in. In the meantime, I had written on this blog (in German) about how difficult it is to get something from the archives of the ECB and the Commission despite the legal claim. Also, my lawyer, Carlos A Gebauer, had in the meantime suggested to the European Court of Justice to request relevant documents from the Commission. The request had been quickly rejected.
Just ten days after the Commission’s call, on April 27, I received documents from the Commission’s digital archive, which, however, did not go back far enough and therefore contained little of use. With a certain persistence, I asked the responsible person to please search the paper archives for the history of the regulation on the introduction of the euro, as soon as the pandemic situation would allow this. I was not given much hope of getting anything before the hearing date at the European Court of Justice on June 15.
When I had already almost given up all hope, on May 5 a large consignment of documents arrived by e-mail from the EU Council, which I had addressed last with my request. Most of the documents to which I refer in my argumentation originate from this consignment.
And finally, on May 25, a set of documents from the Commission’s paper archives arrived. These included an informative draft version of the euro introduction regulation.
A selection of the most revealing documents that I obtained were sent to the European Court of Justice by my lawyer.