Opinion of the European Central Bank of 2 september 2025 on a constitutional law on the right to use cash (CON/2025/26)

OPINION OF THE EUROPEAN CENTRAL BANK of 2 September 2025 on a constitutional law on the right to use cash (CON/2025/26) Introduction and legal basis

On 1 August 2025 the European Central Bank (ECB) received a request from the Slovenian National Assembly for an opinion on a draft proposal to amend the Constitution of the Republic of Slovenia to include a right to use cash in the Constitution (hereinafter the ‘draft constitutional law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and Article 2(1), first and second indents, of Council Decision 98/415/EC , as the draft constitutional law relates to currency matters and means of payment. In accordance with Article 17.5, first sentence, of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

1. Purpose of the draft constitutional law

1.1 The draft constitutional law would supplement the Slovenian Constitution by inserting a new Article 74a in Chapter Three of the Constitution, titled ‘Economic and Social Relations’, to provide that everyone has the right, in accordance with the law, to use cash in banking transactions and other forms of legal transactions . 1.2 The consultation request and the explanatory memorandum accompanying the draft constitutional law (hereinafter the ‘explanatory memorandum’) explain that the aim of the draft constitutional law is to provide a constitutional basis and direction for the Slovenian legislator to ensure, to the extent appropriate and permissible and in a manner consistent with the Union legal order, the preservation and potential enhancement of the possibility to use cash in legal transactions. 1.3 The explanatory memorandum notes that the draft constitutional law is not necessary in the light of the current Union monetary law framework. It explains that the purpose of the amendment is to affirm and consolidate, at the constitutional level, a regulatory framework that is already in force at the level of the Union and the euro area. The explanatory memorandum, however, argues that the draft

constitutional law can be justified if the National Assembly considers it reasonable and beneficial to constitutionally affirm the existing Union framework and to explicitly empower the national legislator to adopt further measures regulating the right to use cash. 1.4 The explanatory memorandum recalls the content and justification set out in the explanatory memorandum accompanying the initial voters’ proposal to initiate the constitutional amendment procedure (hereinafter the ‘initial draft constitutional law’), the relevant article of which has since been amended by the draft constitutional law. The explanatory memorandum summarises and reaffirms these earlier arguments, referring to the Eurosystem’s cash strategy and its objective of ensuring that cash remains broadly available and widely accepted as a means of payment and a store of value, Banka Slovenije’s commitment to ensuring the continued use of cash through a range of measures, the advantages of cash such as the protection of the fundamental right to privacy and inclusivity towards individuals with limited access to digital means of payment, and the premise that the future use of cash as legal tender in Slovenia might be at risk in the event of the imposition of more severe restrictions on the use of euro banknotes and coins or their complete abolition. The explanatory memorandum reiterates the concern regarding the global trend towards increasing digitalisation, and states that the draft constitutional law seeks to prevent any future deterioration or abolition of euro cash. The draft constitutional law aims at allowing for improvements in areas where cash payments are currently restricted, rather than at substantially changing the existing situation which reflects the acceptance of cash as a means of payment across the euro area. 1.5 The explanatory memorandum further refers to the Union’s existing legislation governing and defining the status of euro banknotes and coins as legal tender, and to the case law of the Court of Justice of the European Union, which protects this status, subject to the possibility for Member States to impose certain limitations under a set of conditions, including the need to respect the principle of proportionality. According to the explanatory memorandum, the Government of the Republic of Slovenia has also stated that, should a digital euro be introduced – a decision falling within the ECB’s exclusive competence – it would not replace physical cash but complement it as an additional form of the single currency, and that this position was supported by Banka Slovenije and the ECB in its opinion on the initial draft constitutional law . 1.6 The explanatory memorandum notes that Article 3a of the Slovenian Constitution guarantees that the provisions of the national legislation are understood and applied within the Union legal framework, and explains that the purpose of the draft constitutional law is best understood as a Slovenian constitutional affirmation of the existing and planned future Union monetary law framework, which ensures the continued availability of euro cash (banknotes and coins) as a means of payment throughout the euro area. According to the explanatory memorandum, the draft constitutional law has both a regulatory and a preventative purpose. The regulatory purpose is to establish a constitutional foundation and mandate for the legislator to ensure that cash can continue to be used as a means of payment, particularly where this right is not sufficiently protected in practice, and to provide a basis for regulating reasonable and proportionate restrictions on the use of cash in line with Union and Slovenian constitutional law. The preventative purpose is to ensure that any

future changes at Union level that would significantly impede the use of cash would not have direct or automatic effect in Slovenia. The explanatory memorandum notes that this preventative purpose has two aspects. First, it serves as a political safeguard, by discouraging Slovenian representatives from supporting future Union initiatives that would impede this right. Second, it serves as a constitutional (legal) safeguard, in that, should such Union-level changes occur – for example, through a decision by the ECB – Slovenia would need to determine whether to reassert its sovereign powers in the field of monetary policy, in the light of its constitutional framework, despite a different legal framework being adopted at Union level. 1.7 Regarding the nature of the proposed right in the draft constitutional law, the explanatory memorandum states that it introduces a highly specific constitutional provision, which is not typically found in classical constitutional texts, with only Slovakia and Hungary cited as examples of Union Member States with such a provision. The explanatory memorandum explains that the constitutional right to cash can be understood as part of the broader category of economic human rights or fundamental constitutional rights, thereby elevating its status to that of a constitutionally guaranteed human right. The explanatory memorandum further explains that, while the recognition of the human right to use cash is the central focus of the proposed article, the provision should also be understood to apply, insofar as possible, to legal persons and other entities acting with legal effect in the context of legal transactions. The explanatory memorandum also notes that this right does not fall within the category of absolute constitutional rights, which may never be limited or derogated from, but constitutes a relative constitutional right, which may be subject to restrictions, that need to be constitutionally legitimate, appropriate, reasonable and proportionate. 1.8 The explanatory memorandum considers that the positioning of the new article in Chapter III of the Slovenian Constitution, entitled ‘Economic and Social Relations’, is the most appropriate for the right to use cash, as this chapter specifically governs the framework of economic constitutional relations and the rights of individuals. 1.9 In the explanation of the individual provisions of the draft constitutional law, the explanatory memorandum states that the phrase that ‘everyone has the right, in accordance with the law, to use cash’ affirms, on one hand, that the exercise of the right to use cash requires statutory regulation, and, on the other hand, that this reference to statutory regulation also permits limitations on the use of cash where justified by legitimate and proportionate reasons. The explanatory memorandum explains that the term ‘cash’, as used in the draft constitutional law, refers not only to euro banknotes and coins, but also to any other form of cash holding the legally recognised status of a means of payment within the Republic of Slovenia. 1.10 The explanatory memorandum adds that the right to use cash under the draft constitutional law also implicitly entails a right of access to cash, such as cash withdrawal from automated teller machine (ATMs), with the exercise of this right to be regulated by law in a manner that does not impose a disproportionate burden on the user, taking into account factors such as the geographical distribution of cash access points across Slovenia, the affordability and reasonableness of the fees charged for cash services, and the possibility of free access to such services.

1.11 The explanatory memorandum states that the draft constitutional law refers broadly to all ‘legal transactions’, going beyond the purchase of goods or services to encompass all legal acts and arrangements involving the creation, modification, or transfer of rights and obligations between legal subjects. Finally, the explanatory memorandum notes that the explicit reference to ‘banking transactions’ in the first part of the article is intended to highlight and emphasise the particular importance of the right to use cash in the context of banking.

2. General observations

2.1 As noted in paragraph 1.5, the ECB was previously consulted by the National Assembly on, and adopted an opinion on, the initial draft constitutional law . 2.2 Although electronic payment instruments are increasingly used for retail payments in a number of Member States, cash continues to play an important role in society and is still widely used throughout the entire population. The ability to pay in cash remains particularly important for those who, for various legitimate reasons, prefer to use physical money for payments rather than other payment instruments, or do not have access to the banking system and electronic means of payment. These groups include not only elderly people but also people with disabilities, immigrants, socially vulnerable people, minors and others with limited or no access to digital payment services . Cash is generally also useful as a payment instrument because it is widely accepted, fast and facilitates control over the payer’s spending. Moreover, it is currently the only payment instrument that allows everyone to instantly settle a payment transaction in central bank money, benefiting both payers and payees while ensuring privacy. Furthermore, cash could play an important role in the event of a 7 8 disturbance in the payment system and it is robust against cyber-crime . Cash also has an important function as a store of value. The availability and accessibility of cash and its fallback function in case of disruptions to electronic payment systems contribute to trust in the financial system, which is important for the smooth functioning of monetary policy . Against this backdrop, the ECB welcomes the core objective of the draft constitutional law to strengthen the availability and acceptance of cash in Slovenia. 2.3 The ECB is fully committed to ensuring that euro cash remains available, including in peripheral regions, and accepted in payments throughout the euro area, in line with the Eurosystem’s cash

strategy . The ECB considers it crucial that all Member States take appropriate measures to ensure that credit institutions and branches operating within their territories provide adequate access to cash services, for instance by enabling the convertibility of bank deposits into cash and vice versa, in order to facilitate the continued use of cash. Sufficient and effective access to cash is necessary to preserve the effectiveness of the legal tender status of cash. If citizens do not have easy access to cash, they will not be able to use it as a means of payment and store of value . On 28 June 2023 the Commission published a proposal for a Regulation of the European Parliament and of the Council on the legal tender of euro banknotes and coins (hereinafter the ‘proposed regulation on the legal tender of euro cash’), which includes an obligation for Member States to ensure sufficient and effective access to cash throughout their territory. The proposed regulation on the legal tender of euro cash provides that, following its adoption, the Commission will adopt implementing acts on a set of common indicators of general application in the euro area, which would allow Member States to effectively monitor and assess both the acceptance of payments in cash and access to cash throughout their territory, in all their different regions, including urban and non-urban areas. The ECB will be consulted by the Commission on the preparation of such implementing acts . The specific observations presented below should therefore not be read as undermining the ECB’s commitment to these objectives. Where measures contributing to the protection of euro cash fall within the Union’s exclusive competence for monetary policy, as is the case for legal rules governing the legal tender status of euro banknotes and coins (as explained in paragraph 2.5), the ECB is of the view that such protection should be achieved by rules established in a harmonised manner at Union, rather than at national, level . 2.4 The ECB has the exclusive right to authorise the issue of euro banknotes within the Union, and the euro banknotes issued by the ECB and the national central banks of the euro area are the only banknotes with legal tender status within the euro area . The legal tender status of euro coins is provided for in secondary Union law . 2.5 The concept of ‘legal tender’ as a means of payment denominated in a currency unit has been considered by the Court of Justice of the European Union. In particular, the Court of Justice has clarified that the concept of ‘legal tender’ signifies that this specific means of payment cannot generally be refused in settlement of a debt denominated in the same currency unit, at its full face value, with the effect of discharging the debt. In clarifying the concept of ‘legal tender’ under Union

law, the Court of Justice took into consideration Commission Recommendation 2010/191/EU , which provides useful guidance for the interpretation of the relevant provisions of Union law. Point 1 of Recommendation 2010/191/EU states that, where a payment obligation exists, the legal tender of euro banknotes and coins should imply (a) mandatory acceptance of those banknotes and coins; (b) their acceptance at full face value; and (c) their power to discharge from payment obligations. According to the Court of Justice, this shows that the concept of ‘legal tender’ encompasses, inter alia, an obligation in principle to accept banknotes and coins denominated in euro for payment purposes . 2.6 The Court of Justice has clarified that the concept of ‘legal tender’ is a concept of Union law that must be given an autonomous and uniform interpretation throughout the Union . Insofar as it allows the Union legislature to lay down the measures necessary for the use of the euro as the single currency, the Court of Justice clarified that Article 133 of the Treaty empowers the Union legislature alone to specify the legal rules governing the status of legal tender accorded to banknotes and coins denominated in euro, insofar as that is necessary for the use of the euro as the single currency. Furthermore, the Union legislature’s exclusive competence precludes any competence on the part of the Member States in the matter, unless they have been empowered by the Union to do so or for the implementation of Union acts .

3. Specific observations

3.1 Constitutional right to use cash in banking transactions in accordance with the law 3.1.1 The first part of Article 74a of the Constitution, as proposed by the draft constitutional law, specifies that everyone has the right to use cash in banking transactions in accordance with the law. 3.1.2 The ECB welcomes the core objective of strengthening the availability of cash in Slovenia. Sufficient and effective access to cash is necessary to preserve the effectiveness of the legal tender status of cash. If there is no sufficient or effective access to cash, cash will not be available as a means of payment. In this regard, the proposed regulation on the legal tender of euro cash includes an obligation for Member States to ensure sufficient and effective access to cash throughout their territory .

3.1.3 However, the ECB understands that the scope and extent of the strengthened constitutional protection of the right to use cash in banking transactions would be clarified by means of secondary legislation. For example, it is not fully clear which operations (e.g. dispensing euro banknotes and coins by debiting a payment account, receiving deposits of euro banknotes and coins in order to credit a payment account) would fall under the scope of the banking transactions. It is also not clear whether under the proposed constitutional regime banks would have to perform cash transactions for anyone or only for their clients that hold a payment account, or whether there are further conditions and limitations on the right to use cash in banking transactions . In this context, the costs of implementation of obligations for credit institutions related to cash transactions would need to be adequately accounted for. The ECB therefore understands that the conditions applicable to the right to use cash in banking transactions pursuant to the first part of Article 74a of the Constitution, as proposed by the draft constitutional law, would be properly specified in secondary legislation. 3.2 Constitutional right to use cash in other forms of legal transactions in accordance with the law 3.2.1 The second part of Article 74a of the Constitution, as proposed by the draft constitutional law, further specifies that, besides banking transactions, everyone has the right to use cash in other forms of legal transactions in accordance with the law. This entails the general right to use euro banknotes and coins as a means of payment in settlement of monetary debts. 3.2.2 In this respect the ECB recalls that the Court of Justice has held that the status of banknotes denominated in euro as legal tender calls only for acceptance in principle of such banknotes as a means of payment, not for absolute acceptance . The Court of Justice held that the Union’s exclusive competence in matters of monetary policy is without prejudice to the competence of the Member States whose currency is the euro in the exercise of their own powers, to regulate the procedures for settling pecuniary obligations, whether under public law or private law, provided, in particular, that the legislation does not affect the principle that, as a general rule, it must be possible to discharge a payment obligation in cash. This also includes that Member States may introduce stricter rules, which will strengthen the mandatory acceptance of euro cash in their territory, in the exercise of their own powers, such as the organisation of their public administration or in the field of consumer protection. The Court of Justice has also held that one must assess the objective and content of a national law measure that provides for an obligation to accept euro cash to determine whether that measure has been adopted within the framework of the Member States’ own competences . 3.2.3 It must therefore be considered whether the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, in the light of its objective and content, establishes legal rules governing the status of legal tender of euro banknotes, an area of exclusive competence of the Union under Article 133 of the Treaty, or is a measure taken in the exercise of a competence of the Member States.

3.2.4 The second part of Article 74a of the Constitution effectively sets out the mandatory acceptance of euro cash as a means of payment as a general rule . This can be seen from the fact that the right to pay in cash is recognised in respect of everyone and in relation to all kinds of legal transactions in accordance with the law. It therefore appears that the content and objective of the second part of Article 74a, of the Constitution, as proposed by the draft constitutional law, is to ensure the acceptance of euro cash as a right of general application. The ECB thus understands that, in the light of its objective and content, the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, does not regulate the procedures for settling pecuniary obligations in the 26 27 exercise of national powers but rather appears to regulate the status of euro cash as legal tender . 3.2.5 Furthermore, it must also be considered whether the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, laying the right for everyone to use cash in legal transactions, can be said to reproduce provisions of Union law. 3.2.6 The ECB underlines that the reproduction in national law of a provision of Union law that is directly applicable in the legal order of the Member State may create uncertainty both as to the legal nature of the applicable provision and as to the date of its entry into force. This would not align with the uniform application and interpretation of Union law throughout the Union . 3.2.7 Furthermore, the ECB also underlines that the incorporation of some elements of Union law into national law is warranted only in exceptional circumstances for the sake of coherence and to make them comprehensible to the persons to whom they apply . If such exceptional circumstances do exist, the reproduction of elements of directly applicable provisions of Union law should be done precisely, by incorporation or reference , and only to the extent warranted by the exceptional circumstances. However, such exceptional circumstances do not exist if the directly applicable provisions of Union law are sufficiently coherent and comprehensive, making it unnecessary to repeat or reflect them in national law . 3.2.8 From this perspective, it must be stated that the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, uses significantly different terms than those used in Union law. According to Recommendation 2010/191/EU, on which the Court of Justice relied when

interpreting Article 128(1) of the Treaty and Article 11 of Regulation (EC) No 974/98 , the first defining element of the concept of legal tender is the mandatory acceptance of euro banknotes and coins where a payment obligation exists . In the same vein, it is clear from the prominence given to the provision on this issue in the proposed regulation on the legal tender of euro cash, which is currently being negotiated by the co-legislators, that mandatory acceptance of euro banknotes and coins is one of the key elements of the legal tender status of euro banknotes and coins . Thus, to the extent that the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, uses wording different from its legal sources in Union law, it potentially creates regulatory content of its own, which would not be in line with the Union’s exclusive competence in matters of monetary policy for the Member States whose currency is the euro. 3.2.9 In the light of the above, the ECB recommends that the second part of Article 74a of the Constitution, as proposed by the draft constitutional law, which pertains to everyone’s right to use cash in legal transactions in accordance with the law, should be deleted. Alternatively, if the intention of the draft constitutional law was to reproduce Union law, the provision should either be deleted or amended to merely refer to the relevant provisions of Union law.

This opinion will be published on EUR-Lex.

Done at Frankfurt am Main, 2 September 2025.

[signed]

The President of the ECB

Christine LAGARDE