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

BrusselsHappy end to the amnesty in its journey through European justice. The endorsement from the highest court in Luxembourg is almost absolute. It not only denies that its application affects the financial interests of the European Union and violates the anti-terrorism directive, but it fully defends the spirit of "reconciliation" between Spain and Catalonia of a law that allowed Pedro Sánchez to be invested with the votes of Junts and Esquerra. "It has the express purpose of favoring political reconciliation," has ruled the Court of Justice of the European Union (CJEU).

Thus, the court emphasizes that the context —the Catalan independence process— in which Spanish justice considers that these crimes were committed and the desire to cool tensions between Madrid and Barcelona are decisive. The President of the CJEU himself, the Belgian Koen Lenaerts, stated in a video message that the decisions of dozens of leaders and activists during the height of the independence movement "are not comparable" to acts carried out in another situation, and justified that the objective of the amnesty was to "reduce institutional and political tensions" between Madrid and Barcelona to "facilitate a scenario of reconciliation".

The ruling of European justice is final and points the way forward for Spanish courts, but it is not the end of the application of the amnesty. Everything indicates that it will have an immediate effect on the cases that are currently in the courts —such as the Court of Auditors and the National Court— which have sent preliminary rulings to Luxembourg, but it does not delve into the crimes of embezzlement and, therefore, leaves open the possibility that the Supreme Court continues to put obstacles in applying it to the leader of Junts, Carles Puigdemont, and the leader of Esquerra, Oriol Junqueras. Thus, although it smooths the path, the return of the Junts leader and the possibility of the Republican running in the elections remain up in the air.

Be that as it may, the CJEU leaves no room for manoeuvre in its response to the preliminary rulings from the Court of Auditors and the National High Court. The European court rejects that the expenses related to the 'Procés' which aimed at the independence of Catalonia have caused a reduction in the 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 argument of the Spanish court that the independence of the Principality would have obliged 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 appeal routes" for the application of the amnesty and assures that the work of the European justice system is "limited" to controlling deficiencies of a "systemic nature" that compromise the proper functioning of the entire judicial system of the State, which it considers not to be the case. Furthermore, the court of the highest instance of European justice 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 to correspond to comparable situations," it adds in response to the preliminary ruling, in this case, from the National High 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 intentionally caused "serious human rights violations", 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 qualifies it as a recurrent "legislative technique" that complies with EU law as long as it maintains a degree of "reasonable predictability".

The CJEU only makes two criticisms of the amnesty law that, in fact, no longer have any effect. Firstly, that Spanish judges must resolve the application of the measure within a period of only two months from its entry into force — it was published in the BOE in 2024 — and that it withdraws any precautionary measure until the preliminary questions in Luxembourg have been resolved, which has already issued a ruling this Thursday.

The next steps

The ruling of the European Union's highest court of justice 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 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 this Thursday's ruling to resolve the appeals for protection filed by exiled pro-independence leaders convicted of embezzlement for the organization of the October 1st referendum, who appealed against the Supreme Court's decision to deny them amnesty. A decision is expected next autumn.