1. Dr Marek Porzycki Chair for Economic Policy
Monetary Law and Monetary Policy 10. Legal background of the euro. Derogation and euro adoption.
Dr Marek Porzycki
Chair for Economic Policy

2. Overview Treaty provisions on the euro Euro regulations
Derogation and adoption of the euro
Opt-out
Convergence criteria
Euro adoption in Poland

3. Treaty provisions on the euro
Art. 3(4) of the EU Treaty: The Union shall establish an economic and monetary union whose currency is the euro.
Art. 119(2) of the TFEU: activities of the Members States and the Union within economic policy shall include a single currency, the euro, and single monetary policy
Art. 128 of the TFEU:
exclusive right of the ECB to authorise the issue of euro banknotes, issuance by ECB and NCBs, legal tender status.
coin issuance by Member States subject to ECB approval of the volume of issue
Derogation and euro adoption – Art of the TFEU

4. Euro regulations
Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro
continuity of legal instruments (a broad term including legal provisions, contracts, judicial and administrative decisions and other instruments with legal effect)
conversion and rounding rules
Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro
direct basis for legal tender status for the euro (Art. 2, 10, 11)
substitution of the euro for legacy currencies
conversion of reference to legacy currencies in legal instruments

5. Euro regulations 2
Council Regulation (EC) No 2866/98 of 31 December 1998 on the conversion rates between the euro and the currencies of the Member States adopting the euro
setting of irrevocable conversion rates between legacy currencies and the euro
Council Regulations No 1338/2001 and No 1339/2001 on protection of the euro against counterfeiting

6. Derogation
Situation of Member States which do not (yet) fulfil the necessary conditions for the adoption of the euro
Core provisions of the Treaty covering EMU do not apply to Member States with derogation
Legal basis – Art. 139 of the TFEU
Adoption of the euro – Art. 140 of the TFEU
Convergence Reports by the ECB and Commission
proposal of the Commission
consultation of the European Parliament
discussion in the European Council (heads of states or govts)
decision by the Council to abrogate the derogation, after recommendation of a qualified majority of eurozone Member States
amendment to regulations no 2866/98 (adding the irrevocable exchange rate of new currency) and no 974/98 (setting the euro adoption date)
usual timing: Convergence Reports by May, Council decision in July, euro adoption from 1 January of the following year

7. Derogation 2
Member States with derogation are legally required to adopt the euro once they fulfil the convergence criteria  the decision is taken not by the Member State concerned but by the EU institutions
However, Member States can delay adoption of the euro for indefinite time by not fulfilling the convergence criteria (e.g. not introducing necessary amendments to the legislation)
Example: Sweden. In a referendum in 2003 Swedish people voted against euro adoption. Since then, although legally required to adopt the euro, Sweden does not fulfil the convergence criteria despite its ability to meet them  a „de facto opt-out”
Currently 7 Member States with derogation legally required to adopt the euro (Sweden, Poland, Czech Republic, Hungary, Romania, Bulgaria, Croatia)

8. Opt-out – protocols on the UK and Denmark
„opt-outs” – exemptions negotiated at the time of adoption of the Maastricht Treaty (1992/93)
UK: protocol no 15 to the Treaty
as long, as it remains an EU Member State, the UK has no obligation to adopt the euro unless it notifies the Council that it intends to do so.
exclusion of application of Treaty provisions on euro, similar to derogation but not specifically called derogation.
In the hypothetical case of a decision to join the euro, UK needs to meet convergence criteria
euro changeover plans prepared, last in 2003
Denmark: protocol no 16 to the Treaty
Denmark is considered a Member State with derogation. Procedure for abrogation of the exemption may only be inititated at the request of Denmark.
euro adoption rejected in referendum in 2000

9. Convergence criteria
Relation between the convergence criteria and the OCA theory
Legal basis: Art. 140(1) of the TFEU, Protocol no 13
Fiscal criteria: avoiding excessive deficit in the meaning of Art. 126 of the TFEU and Protocol 12
budget deficit not exceeding 3% of the GDP
government debt not exceeding 60% of the GDP
Price stability criterion – inflation not exceeding by more than 1,5% inflation in 3 „best performing” Member States

10. Convergence criteria 2
Interest rate criterion: nominal long-term interest rates (measured on the basis of govt bonds or comparable securities) not exceeding corresponding rates in 3 „best performing” Member States in terms of price stability by more than 2%
Exchange rate criterion – participation for at least 2 years in ERM II (fluctuation margins of +-15%) without severe tensions, in particular avoiding devaluation
Legal convergence – compatibility of the national legislation with the Treaty and the Statute of the ESCB
Assessment – Convergence Reports

11. Euro adoption in Poland?
need to amend the Constitution (Art. 227 and Art. 203(1))  qualified majority of 2/3 in the Sejm and absolute majority in the Senate needed  a political decision would be necessary, supported by all important political parties
practical and legal preparations  Commision recommendations and experience of other Member States; work already done (NBP, Finance Ministry)
fears of the general public (does euro adoption mean rising prices?)  protection mechanisms
economic reasons for and against
general issue: would we use euro adoption to justify introducing necessary reforms or introduce only narrow reforms needed just to meet the convergence criteria
crisis in the euro area  „wait and see” approach of the Polish authorities until 2015
negative approach of current Polish authorities  dissolution of the euro preparation structures in the public administration in December and in the central bank in early 2017

12. Reading
Hanspeter K. Scheller, The European Central Bank. History, Role and Functions, 2nd ed. Frankfurt 2006, pp
Ch. Proctor, Mann on the Legal Aspect of Money, 7th ed. 2012:
Chapter 26, EMU and the Treaty on the EU, pp
Chapter 28, The Single Currency and its Treaty Framework, pp
Chapter 29, The Euro Regulations, pp
Reference (facultative):
Convergence Reports 
by the ECB
by the Commission 
2018)
publications_en (for 2016: search by tag "Convergence Report")
  e_reports_en.htm (for 2014 and earlier)
Constitution of the Republic of Poland (unofficial translation)