The Advocate General of the CJEU endorses much of the amnesty law and says it does not affect the EU's financial interests.

BrusselsA glimmer of hope regarding the application of the amnesty law, albeit with some nuances. The Advocate General of the Court of Justice of the European Union (CJEU) ruled this Thursday that the agreement reached between the Spanish government and the main pro-independence parties is contrary to EU law, as it restricts to just two months the maximum period the measure gives the Court of Auditors to analyze a defendant's request for amnesty in the EU's interests. However, he endorses the initiative's objective of political and social reconciliation. "It does not constitute a self-amnesty," concludes the Advocate General, thus contradicting the arguments of the Spanish right wing and defending the European Commission itself in light of the trial in Luxembourg. We break down Advocate General Dean Spielmann's opinion point by point.

Argument in favor of applying the law in cases of embezzlement

The CJEU's legal advisor was not required to directly rule on whether the amnesty could be applied in the embezzlement cases related to the Catalan independence process, which involve some thirty pro-independence leaders, including Carles Puigdemont of Junts and Oriol Junqueras of Esquerra. However, Spielmann's assessment that it is not contrary to the EU's financial interests, as the Court of Auditors argues, makes it easier for those seeking to benefit from the law who are facing embezzlement charges and are currently before the Supreme Court. Spielmann is clear on this point. "The EU's financial interests do not preclude the extinction of liability provided for by the amnesty law because there is no direct link between the expenses related to the Catalan independence process and the reduction of revenue allocated to the EU budget," the legal advisor states. Thus, the Advocate General of the CJEU completely dismantles the argument of the Spanish court, which considers that the expenses related to the Catalan independence process would have caused a reduction in the gross domestic product (GDP)—a benchmark used to calculate a country's wealth—and, therefore, in the EU and its budget. The Spanish court argues that this would have forced the other member states, including Spain, to increase their contributions to the EU coffers or would have resulted in cuts to the general accounts of the European bloc.

Support for granting amnesty to terrorists

The lawyer also disagrees with the objections of the Spanish courts to applying the amnesty to the CDR members prosecuted for terrorism. Spielmann points out that the law "already establishes an explicit exclusion of acts that have intentionally provoked violations" related to terrorism and that, therefore, "it does not appear incompatible" with the objective of the measure, which is to grant amnesty to the pro-independence activists. Furthermore, the Advocate General of the CJEU indicates that the legislation is very clear in defining the limits of its scope in terrorism cases because it "expressly" refers to the European Convention on Human Rights. Along the same lines, Spielmann recalls that the nature of an amnesty is that of an exceptional measure applied in specific cases, such as the post-Trial period. Therefore, the Advocate General of the CJEU does not consider that it jeopardizes legal certainty or constitutes discrimination on ideological grounds. "The amnesty law allows for a sufficiently clear boundary to be drawn between conduct eligible for amnesty and conduct that, due to its severity, must remain subject to the criminal sanctions established by European legislation itself," the lawyer concludes.

Too little time to evaluate amnesty applications

Conversely, the CJEU's legal advisor considers the two-month period the law grants the Court of Auditors to analyze an accused person's application for amnesty to be contrary to European Union law and asserts that it is "excessively short." He even suggests that it "may undermine" judicial independence. Thus, although he acknowledges the Spanish government's argument that it is merely an indicative timeframe, he emphasizes that "none of the interested parties" share this view, and all are requesting more time. This nuance in the CJEU's legal advisor's overall endorsement of the amnesty could bolster the arguments of the Court of Auditors—as well as the Supreme Court—to further delay its decision on the amnesty applications it must evaluate.

In this regard, the Advocate General of the European Court of Justice argues against imposing this maximum two-month deadline, an issue already raised by the European Commission. "This obligation would deprive the preliminary ruling procedure of any useful effect," the Advocate General states.

Furthermore, the Advocate General's opinion points out that Spanish courts must be able to hear all parties, not just public administrations that may be directly affected by the costs of the Process, and notes that accepting an amnesty request without complying with this principle "would prevent a fair debate." However, Spielmann doubts that the law actually prevents Spanish courts from hearing all parties and leaves the assessment to the Court of Auditors.

Setback for the main argument of the Spanish right.

The Advocate General of the CJEU endorses the main objective of the amnesty agreed between the Spanish government and the pro-independence parties. "It was approved in a genuine context of political and social reconciliation," Spielmann states. Furthermore, he rejects one of the main arguments of the Spanish right wing and the European Commission's Advocate General, the Spaniard Carlos Urraca, who asserted in the lead-up to the trial last summer that it was a "self-amnesty" and that "it is not compatible with EU values" to approve such a law "in exchange for support to form a government." "It is not a self-amnesty, nor does it include human rights violations, which can include violations of the right to life and physical integrity," the Advocate General points out.

Next steps

The opinion of the EU Advocate General is key to the application of the amnesty lawAlthough the opinion is not final, it usually has a significant influence on the final judgment. It can very likely determine the verdict of the highest court of European justice: in approximately 80% of cases, the judge's position coincides with that previously indicated by the Advocate General. The final judgment is usually made public a few weeks or months after the Advocate General's opinion.