Restrictions on cash usage can infringe upon fundamental constitutional rights. This conclusion was reached in an expert legal opinion presented in Berlin this Wednesday by Christian Waldhoff of Humboldt University for the German Association of Money and Payment Services (BDGW).
The report analyzed the constitutional and EU law status of cash, examining potential impacts on freedom of choice, data protection, and the functionality of the payment system. A key focus was the right to choose a method of payment. Waldhoff stated that “The choice of payment method is part of the constitutionally protected private autonomy, meaning interventions are only permissible under narrow conditions”.
Furthermore, the opinion emphasizes that the free choice of payment methods is an essential component of contractual freedom. However, this private autonomy ends where the fundamental rights of third parties are affected, particularly with cashless payments, which regularly generate personally identifiable data. Consequently, the right to informational self-determination acquires significant weight, imposing legal limits on efforts to restrict the use of cash.
The expert report highlights that cash is unique as a means of payment that leaves no data trail. In contrast, cashless procedures systematically create personal data, such as records for tracking consumption patterns or building user profiles. As cash is progressively sidelined, the density of collected data-and thus the intensity of potential privacy infringements-is rising.
Moreover, the opinion categorizes the supply of physical cash as part of essential state public services and critical infrastructure. Its functionality contributes to the stability of the payment system, especially during crises or digital system failures. Against this backdrop, there arises a state responsibility to permanently secure both the cash infrastructure and the acceptance of cash.
Hans-Jörg Hisam, the deputy chairman of the BDGW, stated that the association feels confirmed in its position by the expert opinion: “Cash continues to fulfill vital functions for participation, data protection, and system stability”. Based on this, the association advocates for consistent payment method neutrality. This means that if cashless payments become mandatory, the obligation to accept cash must apply equally.
