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

BrusselsA glimmer of hope for 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 interests of the EU. 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 legal advisor was not required to directly rule on whether the amnesty could be applied in embezzlement cases related to the Catalan independence process, in which some thirty pro-independence leaders are implicated, including Carles Puigdemont, leader of Junts, and Oriol Junqueras, leader of Esquerra. However, Spielmann's assertion that it is not contrary to the EU's financial interests, as the Court of Auditors and the National Court argue, makes it somewhat easier for those seeking to benefit from the law who are being prosecuted for embezzlement and whose cases are before the Supreme Court. It should be noted, however, that the preliminary questions from the High Court of Justice of Catalonia to the CJEU do directly ask whether the amnesty for embezzlement can affect the EU's financial interests and not just, in general terms, the expenses related to the Catalan independence process. In any case, this is a matter still pending assessment by Luxembourg, which may lead Spanish courts to await the ruling on this second preliminary question and further slow down the application of the law.

Setback to 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 of 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."

Endorses amnesty for CDR members accused of terrorism

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 separatists. 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.

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.