Brussels and Madrid clash over Catalan amnesty law at EU court hearing

The European Court of Justice is examining whether parts of Spain's amnesty law – linked to the Catalan independence push – are compatible with EU law.

The review stems from questions raised by Spain's Court of Auditors about public funds used during the 2017 referendum and the Catalan government's international initiatives.

During Tuesday's hearing in Luxembourg, judges heard arguments on whether the law compromises EU legal principles such as legal certainty, equality before the law, and the protection of the EU's financial interests.

The amnesty law, part of a political agreement between Spain's ruling Socialist Party with Catalan pro-independence parties Esquerra (ERC) and Junts, aims to pardon individuals prosecuted for their roles in the independence push which came to a climax in 2017 with the referendum, deemed illegal by Spain, which saw numerous politicians jailed and exiled.

The Catalan president at the time of the 2017 referendum, Carles Puigdemont, is still living in Belgium, eight years on. 

"Reconciliation"

Lawyers representing around thirty former senior Catalan government officials involved in the independence push – including leaders from the governments of Artur Mas and Carles Puigdemont – argued on Tuesday before the European Court of Justice that the amnesty law passed by the Spanish Congress does not violate EU legislation.

They described the law as part of a "reconciliation" process following the political crisis between Spain and Catalonia surrounding the 2017 referendum on independence.

The lawyers also insisted the amnesty does not impact European Union financial interests, is not a form of "self-amnesty" protecting active politicians, and does not undermine judicial independence or the rights of those involved, a concern previously raised by the Spanish Court of Auditors.

Gonzalo Boye, a prominent lawyer in the case, said the amnesty "dejudicializes" the independence push and marks the start of "mutual recognition" between the conflicting parties.

Brussels and Spain face off

During the hearing on the preliminary questions raised by the Spanish Court of Auditors, both the European Commission and the Spanish government defended that expenses linked to the October 1, 2017 referendum do not affect the EU's financial interests.

However, they differ on whether the law respects legal certainty and avoids "discrimination."

Carlos Urraca, from the European Commission's legal service, questioned whether the law respects the principles of legal certainty and equality.

While acknowledging that it is the Spanish courts' responsibility to analyze this, the European Commission stated that "the amnesty law does not seem to pursue an objective of general interest" because "it is part of a government investiture agreement."

Urraca reproached the Spanish government for not following the recommendations of the Venice Commission, which called for a "clearer and more precise" law and a "meaningful dialogue" with enough time to secure a broader majority for its approval.

"There are doubts as to whether the provisions of the amnesty law meet the requirements of being clear and precise," Urraca said during the hearing.

In contrast, the Spanish government's lawyer, Andrea Gavela, warned the court that this is a "constitutional" debate that must be addressed within Spain.

Indeed, the Spanish Supreme Court has submitted a question of unconstitutionality due to "violation of the right to equality and the principle of legal certainty," which is pending resolution by Spain's Constitutional Court.

"The law cannot, in any case, be considered a self-amnesty," as stated by the European Commission in the written procedure before the European Court of Justice.

Gavela recalled that the Constitutional Court's ruling at the end of June has already upheld the principle of differential treatment in the law, which is "justified" with the objective of "overcoming the political conflict."

She maintained that the amnesty law respects the principles of legal certainty and equality before the law.
 

Lawyers for SCC (Societat Civil Catalana), a civic group opposing Catalan independence, also put forward their case, arguing that if the amnesty law is fully upheld, it will establish "systemic impunity."

SCC, acting as a private prosecutor, was the only party at the hearing to argue that the amnesty law fundamentally violates EU law.

The European Court of Justice also asked Spain to clarify whether lower courts can still refer questions about the amnesty law, after Spain's Constitutional Court ruled it constitutional without involving the EU court.

Spain's lawyer confirmed that lower courts still have that option.

Terrorism charges

Later in the day, judges will also study a second case, this one brought forward by Spain's National Court, related to 'Operation Judas,' against the pro-independence activist groups Committees of the Defense of the Republic (CDR).

The European court will analyze whether the granting of an amnesty to those facing charges of terrorism respects the EU's antiterrorist legislation.

Further questions

Aside from questions from the Court of Auditors and Spain's National Court, the ECJ has also been asked to address doubts of the Catalan High Court and a court in Vilanova regarding the misuse of public funds and granting an amnesty for charges of disobedience, respectively. However, no date has been announced for the hearings.

Spain's government believes the ECJ will announce its ruling related to the embezzlement of public funds in September, although based on statistics, the court takes an average of 17.2 months to rule on preliminary questions, and the Court of Auditors issued their request back in July 2024.

Regardless of the EU Court's ruling, Spanish courts will decide whether to grant an amnesty, although they will have to consider the decisions of European judges and Spain's Constitutional Court. The court already decided in late June that the amnesty law is constitutionally binding, but some other decisions are still pending.