EU Court to address Spain’s amnesty law concerns in 2025

The European Court of Justice (ECJ) will review questions from three Spanish courts regarding the application of the amnesty law in cases involving terrorism and embezzlement charges linked to the Catalan independence referendum of 2017.

The 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, which saw numerous politicians jailed and exiled for years.

The Catalan president at the time of the 2017 referendum, Carles Puigdemont, is still living in Belgium ever since the vote.   

The ECJ has received 20 preliminary questions from Spanish judicial bodies, including the High Court of Catalonia (TSJC), the National Court, and the Court of Auditors.

These questions focus on whether the amnesty law aligns with EU legislation, particularly concerning the misuse of public funds and counter-terrorism laws.

Experts note the unprecedented and politically sensitive nature of bringing such an amnesty law before the EU’s top court.

Henri de Waele, an EU law professor at the University of Antwerp, points out in an interview with the Catalan News Agency (ACN) that amnesties are rare at the ECJ, as they are typically handled within national jurisdictions.

Constitutional law expert Sascha Hardt adds that the ECJ has never directly ruled on the compatibility of amnesty laws with EU law.

Embezzlement and EU funds

One major concern revolves around whether amnesties for public fund mismanagement risk violating EU financial regulations.

The Catalan High Court has asked whether diverting regional public funds for an illegal secession attempt threatens EU interests.

Similarly, the Court of Auditors has paused cases against former Catalan officials pending clarification from the ECJ.

"It is unlikely that the court will open Pandora's box by reviewing the law as if it were an attempt to amnesty embezzlement in general," says Hardt.

The EU law expert does not believe that the amnesty will be seen by the ECJ as an attempt by Pedro Sánchez's Spanish government to "evade" rules against embezzlement, but rather to "pacify" a political conflict.

Terrorism

The National Court questions whether the law aligns with EU counter-terrorism directives.

The law excludes amnesties for acts classified as terrorism under EU law if they involve severe human rights violations.

Judges are seeking clarity on whether distinctions can be made between acts of terrorism based on the severity of rights violations.

In the case against the pro-independence activists, the CDR, who organized riots in response to the verdict of the trial against the political organizers, the National Court has asked the ECJ whether European legislation allows a distinction to be made between terrorist acts that have caused or have not caused "serious violations of human rights."

The court suggests that the law may be violating the principle of legal certainty, since it does not "specify" which acts constitute these violations or what degree of seriousness must be overcome to make "the amnesty inoperative."

Broader implications

The law has also been challenged for potentially undermining equality before the law by excluding similar offenses committed for different ideological causes.

Concerns have been raised about whether lifting legal measures, such as arrest warrants for former Catalan President Carles Puigdemont, complies with EU principles.

Next steps

The ECJ is expected to take over a year to issue its ruling.

Simultaneously, Spain’s Constitutional Court will analyze the law's compliance with national principles of equality and legal certainty.

While the ECJ’s decision will influence Spain’s Constitutional Court, it is not legally binding.

Experts believe the ECJ’s ruling will aim to ensure that the amnesty law does not undermine EU anti-corruption and human rights frameworks. However, they stress that the court is likely to tread carefully given the political sensitivities of the case.