The Court of Justice of the European Union (CJEU) has heard firsthand the arguments for and against amnesty during two hearings devoted to examining the preliminary questions submitted by the Court of Auditors and the National Court, as provided for in Article 257 of the Treaty on the Functioning of the EU. We have had to come this far because the Spanish political and judicial right, despite this being an eminently domestic issue, decided some time ago to take its private war to all possible continental bodies, as before to the Venice Commission of the Council of Europe, in order to delay—rather than make it illusory.
This is possible because, although the presentation of the preliminary question does not allow the law to be suspended, it does authorize its suspension in cases where it should be applied if the cause of irreparable harm is justified, the existence of a presumption of sound law of the European law invoked by the national judge, or the need to guarantee the constitutionality of the law. Reaching Luxembourg is still a delicate matter; moreover, the CJEU ruling is binding on the domestic judge. The CJEU's own jurisprudence has upheld this type of diffuse control of Luxembourg, given that Spanish judges are organically state-owned but functionally European (Costa v. ENEL in 1964 or Simmenthal v. Italian Tax Authority in 1978). In other words, a declaration of non-application or referral by the CJEU (which dictates how the law should be interpreted) cannot be altered by the fact that the Constitutional Court (CC) has declared the law constitutional, as these are two instances with different judicial parameters.
Another issue is that neither the CJEU, nor of course the Commission—as guardian of the treaties—has the power to examine whether the Spanish Constitution allows for amnesty, since this falls first to the Cortes Generales and then to the Constitutional Court. What concerns the CJEU, and in the most extreme cases also the EU executive branch, through an infringement investigation, is whether the facts covered by the amnesty and the judicial procedures implemented for this purpose respect EU values (Article 2 of the Treaty), which are based on respect for human dignity, freedom, human rights, including the rights of persons belonging to minorities. Therefore, the Commission, when consulted by the CJEU, has gone beyond whether the EU's financial interests were affected (concerning whether the EU's gross national income would have been affected by the secession of Catalonia) or whether the 2017 European directives on terrorism, which it already transposes, are being breached.
From what was seen during the session, the Commission recalls that the rule of law and democracy in Spain could have been questioned because the law "it does not seem to respond to a general interest", but rather to the investiture of the Prime Minister. The person responsible for this delirium is Carlos Urraca, a member of the Commission's Legal Service and an expert on competition and state aid issues, matters that are as similar as two peas in a pod to the person on trial. In response to questions from the Vice President of the CJEU and rapporteur of the ruling, Thomas von Danwitz, and the Advocate General—a figure in German law who proposes a ruling in the court—Dean Spielmann, Urraca admitted that the Constitutional Court had ruled out the possibility of self-amnesty because "an amnesty was never approved in a democratic Parliament as long as it did not require the votes of any other party," adding that there was no mention of coexistence and that the law had deepened the conflict in Spanish society because it had not been debated with the opposition. The same arguments—carbon-coated—from the Spanish judicial and political right.
Apparently, the Commission representative hasn't even read the preamble to the law. Nor is it clear to him that a law passed by Parliament is the expression of the general will and that, if it responds to agreements, as most laws do, this is a matter of opportunity or political convenience—with which one may or may not agree—but not of constitutionality, and even less so it contravenes EU values, as Orbán does, for example, by persecuting. Nor does he seem to have taken into account the CJEU ruling of December 16, 2021, or that of the Strasbourg Court on the viability of amnesties limited only to serious human rights violations (ECHR of May 27, Margus v. Croatia). Therefore, the law excludes torture and inhuman or degrading treatment or punishment, or terrorist offenses that have resulted in death or the loss of organs. These, at most, were the issues the Court should have examined.
