Counterfeiting the Single European Currency (Euro): Towards the Federalization of Enforcement in the European Union?

8 Colum. J. Eur. L. 151 (2002)

J.A.E. Vervaele. Professor in economic and financial criminal law, Law Faculty, Utrecht University and Professor at the College of Europe/Bruges.


The introduction of the single European currency (euro) is a crucial landmark in the history of European integration. Indeed, as of January 1, 1999, the euro unit and the national currency units have become units of the same currency; the euro countries have ceased to have monetary jurisdiction and have become dependent on the measures ordered by the European Central Bank (ECB). On January 1, 2002, after a transitional period of three years, euro notes and coins were introduced as legal tender. With the introduction of the euro as the single currency for the euro-zone and as a potential worldwide transaction and reserve currency, the security of the euro and the anti-counterfeiting policy are of fundamental importance to the trust put in the European Union.

The federalization of the monetary policy and the introduction of a single currency are far-reaching steps in the framework of the creation of the Economic and Monetary Union, one of the key policies within the European Union. These steps will certainly press towards further integration in the field of financial services, tax policies, etc. From the introduction of the euro as a cornerstone of community policy, it cannot, however, automatically be derived that the enforcement of anti-counterfeitingmeasures would be a competence of the European Community (first pillar, as part of the economic and monetary policy)’ or of the European Union (third pillar, as part of the co-operation in the field of Justice and Home Affairs). The deepening and widening of the European integration process has not yet resulted in a federal state structure with complete sovereignty. As opposed to Nation States, in the European Union there is no complete separation of powers along the lines of the trias politica doctrine. The European Union is based on shared governance between the European Community/European Union and the Member States, being an integrated community legal order. Enforcement of the regulatory tools of the European Community and of the European Union in principle belongs to the jurisdiction of the Member States. They have the jurisdictionto prescribe, to enforce or to adjudicate. For this reason, the European Union has no jurisdiction in the field of criminal law to prescribe federal offenses, to enforce them and to adjudicate them before federal tribunals. Federal offenses do not exist, there is no European police force, no federal Public Prosecutor’s Office, and the European Court of Justice has no jurisdiction in criminal matters.

However, the fact that the federalization of criminal law enforcement is still in its emerging stage does not mean that the (criminal) enforcement systems of the Member States are entirely exempt from the influence of Community law and Union law. The European Court of Justice has imposed upon the Member States a general enforcement obligation, both in theory and in practice. The Community and the Union have used their jurisdiction to bind the Member States (through harmonization, common policies, etc.) to impose enforcement obligations. For instance, in the field of Community law, these obligations include substantial norms, obligations in the field of administrative verifications and civil sanctionss and obligations in the field of administrative co-operation; in the field of Union law, these obligations include obligations in the area of criminal law (offenses, sanctions), criminal procedure and international criminal law (judicial co-operation in criminal matters, extradition, etc.).10 Besides the extensive harmonization of the national enforcement systems and tools (indirect enforcement), first steps have also been taken towards a federal competence of the Union to enforce in the areas of competition, agriculture and protection of the EU budget (direct enforcement).” Investigative powers for European inspectors12 are provided under specific regulations in the field of competition, nuclear energy, agriculture,fisheriesand the protection of the financial interests of the EU. Only in the field of competition, nuclear energy and the protection of EU financial interests can the European law enforcement agencies inspect autonomously and under their own authority, although their mandate is limited to administrative inspection, excluding the use of coercive powers such as search and seizure. In the other fields mentioned, the mandatory administrative inspection has to be carried out in co-operation with and under the authority of the national law enforcement agencies. The creation of European regulatory agencies in the field of pharmaceutical products, food safety, aviation, etc., did not change this situation, as these agencieshave no enforcementpowers whatsoever.

The introduction of the euro might act as a catalyst in the process of increasing federal jurisdiction in the field of enforcement. For this reason, it is interesting to compare the introduction of the U.S. dollar with the counterfeiting policy in the federal structure of the Union.