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

BrusselsEuropean justice backs amnesty and claims its spirit of "reconciliation." The Court of Justice of the European Union (CJEU) ruled this Thursday that the application of the law does not negatively affect the financial interests of the EU and does not violate the community directive on the fight against terrorism. "The law of the European Union 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 denies the main point of the preliminary ruling of the Court of Auditors without ambiguity. The European court rejects that the expenses related to the "Procès" which aimed at 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 overturns the argument of the Spanish court 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 avenues of recourse" for the application of the amnesty and assures that the work of European justice is "limited" to controlling systemic deficiencies that compromise the proper functioning of the entire State's 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 offenses committed in this context and the offenses 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 Audiencia Nacional.

For the same 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 in a "detailed" way 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 common "legislative technique" that complies with EU law as long as it maintains a degree of "reasonable predictability".

The next steps

The ruling of the highest court of European justice is key to the political and judicial future of some of the main leaders of the "Procés", as well as dozens of independence activists. After the ECJ's pronouncement this Thursday, it is most likely that the Constitutional Court will advocate for applying the amnesty and, therefore, pave the way for the application of the law in the rest of the Spanish courts. However, this will not be the definitive step either and, for example, in the case of Junqueras and Puigdemont, the second chamber of the Supreme Court, which until now has refused to apply the law agreed between Junts, Esquerra and the PSOE that made possible the revalidation of Pedro Sánchez as president of the Spanish government, has the final say.

It should be recalled that the ECJ's advocate general had already spoken in a similar vein. The lawyer not only argued that the application of the amnesty does not negatively affect the financial interests of the European Union and does not violate the community directive against terrorism, but also justified the approval of such a measure by the political and legal context of Catalonia and Spain. "It has been approved in a real context of political and social reconciliation," he stated.