The CJEU backs the amnesty and points the way to Spanish justice

BrusselsEuropean justice backs amnesty and claims its spirit of "reconciliation" between Catalonia and Spain. The Court of Justice of the European Union (CJEU) ruled this Thursday that the application of the law does not negatively affect the EU's financial interests and does not violate the EU directive on the fight against terrorism. "European Union law does not oppose the Spanish amnesty law for normalization in Catalonia," concludes the European court. Thus, Luxembourg has given the green light to the application of the amnesty to the leaders of the Procés, such as Carles Puigdemont and Oriol Junqueras, and to dozens of independence activists and personalities; and it points the way forward for the Spanish courts, some of which refuse—at least until now—to apply it.

The CJEU ruling unequivocally denies the main argument of the Court of Auditors' preliminary ruling. The European court rejects that the expenses related to the Procés, whose objective was the independence of Catalonia, would have caused a reduction in gross domestic product (GDP)—a reference index used to calculate a country's wealth—and, therefore, of the EU and its budget. In this way, it dismisses the Spanish court's argument that the independence of the Principality would have forced the rest of the member states, including Spain, to increase their contribution to the community coffers or that a cut in the bloc's general accounts would have been made.

Luxembourg also rejects the Court of Auditors' request to establish "necessary remedies" for the application of the amnesty and assures that the work of European justice is "limited" to controlling deficiencies of a "systemic nature" that compromise the proper functioning of the entire State judicial system. Furthermore, the CJEU considers that the amnesty "respects" the principles of equal treatment and non-discrimination because "its purpose is to promote political reconciliation solely in the context of a particular political movement." "The crimes committed in this context and the crimes committed in other contexts cannot be considered comparable situations," it adds in response to the preliminary ruling, in this case, from the National Court.

For this very reason, the CJEU rules that the amnesty "does not deteriorate" the effect of the European directive on the fight against terrorism and highlights its objective of "reducing institutional and political tensions to facilitate a scenario of reconciliation". Furthermore, Luxembourg recalls that the law "excludes" acts that have caused "intentionally serious violations of human rights", and assures that the fact that it defines in an "abstract" and not "detailed" manner the acts that are excluded from the application of the amnesty does not violate the principle of legal certainty. In fact, Luxembourg describes it as a common "legislative technique" that complies with EU law as long as it maintains a degree of "reasonable predictability".

The CJEU makes only two criticisms of the amnesty law which, in fact, no longer have effect. Firstly, that Spanish judges must resolve the application of the measure within two months of its entry into force — it was published in the BOE in 2024 — and that any precautionary measures are withdrawn while the preliminary questions to Luxembourg, which has already issued a ruling this Thursday, have not been resolved.

The next steps

The ruling of the European Union's highest court is key to the political and judicial future of some of the main leaders of the "Procés", as well as dozens of pro-independence activists. After the ECJ's ruling this Thursday, it is most likely that the Constitutional Court will advocate for the application of the amnesty and, therefore, pave the way for the application of the law in the rest of the Spanish courts. In fact, the Constitutional Court was awaiting Thursday's ruling to resolve the appeals for protection filed by exiled pro-independence leaders convicted of embezzlement for organizing the October 1st referendum, who appealed against the Supreme Court's decision to deny them amnesty. A decision is expected next autumn.

This, however, will not be the definitive step either and, for example, in the case of Junqueras and Puigdemont, the second chamber of the Supreme Court has the final say, which until now has refused to apply the law agreed between Junts, Esquerra and the PSOE that made possible Pedro Sánchez's revalidation as president of the Spanish government. Beyond the Supreme Court, the ECJ's favorable ruling on amnesty is expected to have a more immediate effect on the Court of Audit and the National Court. Thus, some thirty leaders of the "Procés" and CDR activists accused of terrorism should be granted amnesty.