The trees and the forest in Advocate General Spielmann’s Opinion on the amnesty in Spain

Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam)

[1]

Liters of ink would flow, were it not for computers, regarding the controversial Opinion of the Advocate General of the Court of Justice of the European Union (CJEU) concerning the preliminary questions submitted to this Court by the Audiencia Nacional[2] and the Tribunal de Cuentas[3] on certain aspects of the Spanish Organic Law on Amnesty (OLA).[4]

Two mandatory, but not binding, opinions were issued as required by the proceedings before the CJEU, serving as a preparatory draft for the judgment that the Court will eventually deliver. This is not the only “guidance” available to the CJEU, as the European Commission also expressed the opinion of the EU executive branch on the matter, and the parties that raised the questions, as well as those who initiated them, were able to submit their arguments and observations. Furthermore, there was a debate during the oral hearing held in the Grand Chamber (15 judges), with the participation of the State Attorney and the Public Prosecutor before the Tribunal de Cuentas. We mention this because, given the media frenzy, it seems as though the Advocate General’s Opinion has been interpreted as an oracle destined to guide our lives, and especially those of people involved in the application of the OLA. Nothing could be further from the truth, as the CJEU has this entire body of legal evidence to support its deliberations and judgment.

Therefore, given that, as we shall see, Advocate General Spielmann has not been entirely correct from a legal perspective, it is not surprising that some interpret his Opinion one way and others another, thus creating considerable confusion in which the trees are obscuring the forest. What is being asked in the preliminary questions? The question is whether certain provisions of the OLA are compatible with European Union law. The Advocate General must (or should) address this, establishing the EU regulatory framework and providing legal arguments as to whether Spanish legislation conforms to it. We will examine the main points under discussion (the trees) and focus on whether, and in what respects, the OLA is compatible with EU law (the forest).

First, I will focus on the Advocate General’s Opinion on the preliminary question submitted by the Audiencia Nacional in the context of the domestic proceedings in which the application of the amnesty to the so-called CDRs was being discussed,[5] accused of terrorism during the so-called Catalan independence process. The European legislative framework applicable to the case, to determine whether the OLA complies with it or not, is complex. The precepts of the Charter of Fundamental Rights of the European Union (hereinafter, the Charter) must be taken into account,[6] especially in matters of equality and non-discrimination, the Directive 2017/541,[7] which establishes minimum standards on offenses that may be considered as terrorism and the obligations of States to counter them, but does not expressly regulate anything on amnesties and, for activities prior to the entry into force of the aforementioned Directive, and the Council Framework Decision 2002/475/JHA[8] relating to the fight against terrorism. As an element of interpretation, the jurisprudence of the European Court of Human Rights (ECtHR) must also be taken into account, which, in numerous judgments, has addressed the examination of the rights of perpetrators and victims affected by terrorist activities.

What are the prosecutable terrorism offenses under EU law? The list is enormous.[9] From the destruction of state or public facilities, infrastructure, or computer systems to the manufacture, possession, acquisition, transport, supply, or use of explosives or weapons, as well as the provision of information or material resources or the financing of terrorist activities. The Directive includes as terrorist activity attempts, threats, intimidation, and preparatory activities, without requiring that the terrorist act has actually been committed.

What were the CDR members accused of? It is documented in the Audiencia Nacional and in the allegations provided by the lawyer of the Asociación Catalana de Víctimas de Asociaciones Terroristas, Mr. Josep Maria Fuster Fabra, one of the leading legal experts on terrorism, they are accused of occupying several town halls, planning and coordinating the assault, occupation and defence of the Parliament of Catalonia, sharing information about advances and experiments related to the manufacture of explosive and incendiary substances and preparing the coordination of these and other attacks, purchasing substances suitable for the manufacture of explosives, establishing a clandestine laboratory and, also, the occupation by assault of the Barcelona airport which, in addition to having civilian facilities, has inside a logistics centre supporting the air forces of NATO allied countries.

Well, in the Advocate General’s Opinion, since amnesty is not regulated under EU law, Member States have a margin of appreciation in this regard. Therefore, he believes that amnesty can be applied to those who committed the acts being tried by the Audiencia Nacional. He bases this opinion on the fact that the acts committed do not constitute serious intentional human rights violations, which, for him, would be limited to acts resulting in death or serious physical harm, and torture or inhuman or degrading treatment committed by public authorities. He even goes so far as to state that the ECtHR (thankfully, he says “in my opinion”, that is, his own) is willing to take into account the political context in which certain amnesties are adopted.[10] It therefore considers it plausible to grant amnesty for acts that may be classified as terrorist acts (including attempted acts) because of the purpose intended by the amnesty: the “creation of a credible framework for transitional justice” within a “genuine process of national reconciliation”.

In this context, it is striking that the Advocate General systematically resorts to International Humanitarian Law[11] as the generator of interpretive principles for his opinion. He mentions it dozens of times, albeit generically, without specifying which rules or Articles he considers applicable to the case. This is surprising because International Humanitarian Law is a body of law comprised of various treaties and other international legal norms regulating the Law of War, which can only be applied in cases of armed conflict. It seeks, above all, to define the rights of combatants and non-combatants, as well as the protection of the civilian population. It is not applicable to terrorism, unless it occurs in the context of an armed conflict, which implies the actions of armies, guerrillas identified as such, or other combatant personnel such as organised militias and the like. Does the Advocate General not know that International Humanitarian Law is not applicable to terrorism? Or is he implying that the Catalan independence movement was an armed conflict or should be considered as such?

Going beyond the legal analysis of the compatibility between the OLA and EU law, the Advocate General states verbatim that the OLA “appears to have been adopted in a genuine context of political and social reconciliation”. This argument is curious, as it is based on assumptions. One must wonder if Mr. Spielmann bothered to ascertain whether appearances reflect reality, since he considers this crucial enough to justify the amnesty’s European legitimacy. Doesn’t it seem rather crude to base one’s argument on what “appears”? The Venice Commission itself warned that the OLA was being adopted without scientific consultation with public opinion and without serious debate, which is inappropriate for a law of such constitutional significance.[12]

Mr Spielmann also failed to refute the opinion of the European Commission, which considers that we are facing a “self-amnesty” prohibited by EU law..[13] He claims that the OLA cannot be classified as self-amnesty because “[it] cannot be inferred that the individuals benefiting from the amnesty are members or representatives of the Government or the Legislative Branch who promoted the law’s approval”. Has the Advocate General bothered to find out what was agreed upon between the former President of the Generalitat and Mr. Santos Cerdán in the meetings held in Geneva and Waterloo? Was Carles Puigdemont not a public official at the height of the independence movement? Nor were the members of parliament or the members of the regional government who were also found guilty of sedition by the Supreme Court? These are precisely the same people who boast in the media of having directly intervened in shaping the law’s content. All of this is more than adequately documented in the report that the European Commission submitted to the CJEU, directly classifying the law as self-amnesty. The “I’ll cook it, I’ll eat it”[14] attitude has never been clearer. But the Advocate General does not get it. Or perhaps he chooses not to.

Furthermore, the Advocate General asserts that the OLA does not create any discrimination because the differentiated treatment it grants to the coup plotters is based on “objective and rational criteria,” which are grounded in “a specific political context and an explicit objective of reconciliation”. Why does he consider this to be the case? Well, he claims this because the law was passed in a parliament with the formally declared aim of “institutional normalisation and social reconciliation”. He accepts without argument that the name of the law, by including the phrase “for the institutional, political, and social normalisation in Catalonia,” simply reflects a reality that is questioned by numerous sectors, especially academic ones.[15] As if following Karl Schmitt, the numerical majority and rhetorical assertion confer sufficient legitimacy to consider that the “good intentions” of the legislator exempt them from any other type of analysis. In a casual conversation, perhaps… In the scientific-legal sphere, this leaves much to be desired.

These are some of the “trees” that the Advocate General’s Opinion on the preliminary ruling request from the Audiencia Nacional has presented us with. Let us now look at some more that appear on the horizon of the second opinion, the one stemming from the preliminary ruling request submitted by the Tribunal de Cuentas.

The question is essentially whether the expenses incurred during the Catalan independence process, especially, but not exclusively, those related to the preparations for the illegal referendum of October 1, 2017, and those applied to the so-called Catalan “embassies” abroad, constituted misappropriation of public funds contrary to EU law. This is the origin of the lawsuit initiated by Sociedad Civil Catalana, through the Bufete Chapapría, before the Tribunal de Cuentas, within which the preliminary ruling has been requested. This request is not only aimed at determining whether the OLA is compliant with EU law in this respect but also asks whether the procedure established by the OLA for applying amnesty, in this case, to those responsible for the alleged misappropriation of public funds, is in accordance with European standards.

The EU law that serves as the framework in this regard is mainly composed of Articles 19 of the Treaty on European Union (TEU), which states that Member States shall establish the necessary remedies to ensure effective judicial protection in the areas covered by Union law, and Articles 267[16] and 325[17] of the Treaty on the Functioning of the European Union (TFEU), especially with regard to the protection of the Union’s financial interests, and Article 47 of the Charter of Fundamental Rights of the EU,[18] which guarantees effective judicial protection, as well as various European directives aimed at combating corruption. It is striking that the Advocate General does not consider Article 2 TEU, which governs the Union’s values, to be an important frame of reference in this regard. Within these values, the rule of law, systematically invoked by the appellants, takes on radical significance, especially when considering the analysis of effective judicial protection, a fundamental right that is, in turn, an essential component of the rule of law.

The tree with the most foliage at this point is the debate over whether EU funds were misappropriated in the expenses related to the Catalan independence process. The EU has extensive anti-corruption legislation, which naturally includes the misappropriation of European funds. As the CJEU has repeatedly stated, it would set a poor example for citizens if only corruption or misappropriation of European funds were prosecuted, while allowing, or turning a blind eye to corruption or misappropriation involving the Member States’ own funds, or if the connection between the misappropriation and European funds could not be directly and conclusively proven. The CJEU repeatedly affirms that the concept of “affecting European funds” must be interpreted broadly, encompassing any potential or actual harm to the Union’s financial interests. However, the bulk of the Advocate General’s arguments focus on the fact that it has not been proven that EU funds were misappropriated. This has fuelled a whole barrage of claims that, since EU funds have not been misappropriated, the amnesty applies to the coup plotters who were convicted, among other things, of embezzlement. This consideration is significantly important because, in domestic lawsuits seeking to apply the amnesty, the Spanish Supreme Court has ruled that the OLA does not apply to cases of embezzlement, given the direct or indirect personal gain of those who illegally used public funds within the framework of the Catalan independence movement. The most striking example in this regard is the case of Carles Puigdemont, a fugitive from justice, who has not been brought to trial and is demanding amnesty in exchange for continuing to support Pedro Sánchez’s government.

It should be noted here that the Advocate General has not followed the CJEU’s doctrine in the EuroBox and ANAS cases, among others cited, which establish a broad interpretation of the Union’s financial interests. This interpretation holds that the damage would be incurred regardless of the origin or destination of the misappropriated funds; therefore, it would not be necessary to demonstrate a direct impact on EU funds to consider that such corruption exists. Despite this established case law, the Advocate General opts for a restrictive approach and concludes that the connection between the alleged misappropriation and the Union’s financial interests has not been conclusively proven.

This discussion would be of paramount importance were it not for the fact that, when the Advocate General had to answer the questions posed in the preliminary ruling request concerning various procedural issues in the application of the amnesty, after examining the regulations of the OLA, he concluded that the two-month period it establishes for domestic judicial authorities to apply it may prove insufficient, as argued at the oral hearing by the representatives of Sociedad Civil Catalana and by the European Commission itself. He also had to acknowledge that the provisions of the OLA whereby, within the framework of the procedure for applying the amnesty, only the representatives of the public sector could be heard, but not the private parties involved, constituted a violation of the principle of adversarial proceedings and equality of arms. And that, also within the framework of the procedure established in the OLA, the internal court to which the application of the amnesty is requested, does not have total control over the adoption and has to automatically lift the precautionary measures that it may establish in the case, also constitutes a violation of EU rules, as it cannot guarantee in turn the purpose of precautionary measures adopted to ensure the effectiveness of the final decision that has to be taken in the case.

All of this, according to the Advocate General himself, who is correct in his assessment, may constitute a violation of the right to effective judicial protection recognised in Article 47 of the Charter. Therein lies the “forest” that the previous “trees” are obscuring: such a violation constitutes a breach of essential principles of the rule of law, one of the EU values ​​protected by Article 2 TEU.

In this context, the Advocate General, albeit unintentionally, opens an interpretative door that goes even further in this case. As the representatives of Sociedad Civil Catalana argued in their submissions and at the oral hearing before the Grand Chamber, it is the deficiencies in the procedural regulations of the OLA that have prevented a conclusive determination of whether the alleged misappropriation before the Court of Auditors constitutes a misuse of European funds that harms the interests of the Union. Therefore, it cannot be asserted, as many media outlets have done, that there has been no misuse of European funds, but rather that the misuse of European funds could not be proven. And such misuse could not be proven due to the regulatory deficiencies of the OLA, which violate the right to effective judicial protection.

If the CJEU follows this interpretation regarding the violation of the right to effective judicial protection when it issues its judgment, the full extent of the problem becomes clear: it is not possible to apply a domestic rule that is contrary to EU law when such regulation violates one of the essential principles of the rule of law, which is embodied in the guarantees of the right to effective judicial protection.[19]

The OLA would therefore become inapplicable due to violations of procedural guarantees. The trees of terrorism and embezzlement, on which everyone is focusing, cease to be relevant when viewed in isolation. Because the important conclusion is that what allows a law to be applied is that the application procedure it establishes has all the necessary guarantees. This is the core issue, the forest of the matter.

Therefore, when the CJEU issues its ruling, the case will return to the Audiencia Nacional and the Tribunal de Cuentas, because the submission of the preliminary questions has entailed, in accordance with EU law, the provisional suspension of the respective proceedings until the judgment is issued. When that happens, the domestic courts will have to issue their ruling taking into account what the CJEU decides regarding the compatibility between the OLA and EU law. Furthermore, it will always be possible, with the resumption of the judicial proceedings, for other preliminary questions to be submitted if the judges in the cases deem it appropriate. We are in for a long haul.

[1] We use a Spanish proverb as an analogy – “los árboles no nos dejan ver el bosque” –, which literally translates to “the trees do not let us see the woods”. This warns us that, at times, we become so focused on the details and individual aspects of a situation that we lose sight of the big picture. In this context, the trees represent the small, specific elements that distract us, while the forest symbolises the overall, global perspective.

[2] Opinion of Advocate General Spielmann, delivered on November 13, 2025, Case C‑666/24, Request for a preliminary ruling from the Audiencia Nacional (National High Court, Spain), accessed November 20, 2025, https://curia.europa.eu/juris/document/document.jsf?text=&docid=306164&pageIndex=0&doclang=es&mode=req&dir=&occ=first&part=1&cid=7012518.

[3] Opinion of Advocate General Spielmann, delivered on November 13, 2025, Case C‑523/24, Request for a preliminary ruling from the Tribunal de Cuentas (Court of Auditors, Spain), accessed November 20, 2025, https://curia.europa.eu/juris/document/document.jsf?text=&docid=306161&pageIndex=0&doclang=es&mode=req&dir=&occ=first&part=1&cid=7012518.

[4] See text of the Organic Law of Amnesty (OLA) for the institutional, political and social normalisation in Catalonia, available at: https://www.boe.es/buscar/act.php?id=BOE-A-2024-11776.

[5] CDR: “Comités de Defensa de la República”. Radical groups organised in Catalonia sowed violence in the streets, public buildings, and infrastructure during the height of the so-called procés (independence movement). They were reported for terrorism before the National Court, which accepted the complaints, and it is in the corresponding legal proceedings initiated therein that the preliminary question has been raised.

[6] See Charter of Fundamental Rights of the European Union, available at: https://eur-lex.europa.eu/legal-content/ES/TXT/PDF/?uri=CELEX:12016P/TXT

[7] Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, accessed on November 21, 2025, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017L0541.

[8] Council Framework Decision of 13 June 2002 on combating terrorism, accessed November 21, 2025, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32002F0475.

[9] Article 3 of Directive 2017/541, titled “Terrorist offences” prescribes the following: “1. Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2: (a) attacks upon a person’s life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage-taking; (d) causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological, radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear weapons; (g) release of dangerous substances, or causing fires, floods or explosions, the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life; (i) illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the European Parliament and of the Council (1) in cases where Article 9(3) or point (b) or (c) of Article 9(4) of that Directive applies, and illegal data interference, as referred to in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive applies; (j) threatening to commit any of the acts listed in points (a) to (i). 2. The aims referred to in paragraph 1 are: (a) seriously intimidating a population; (b) unduly compelling a government or an international organisation to perform or abstain from performing any act; (c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.”

[10] The Advocate General cites several judgments of the ECtHR in which the Court denies compatibility with the European Convention on Human Rights (ECHR) when those granted amnesty have committed serious human rights violations. These are cases committed during armed conflicts, such as Margus v. Croatia. He also cites the Inter-American Court of Human Rights (IACHR) in cases such as Barrios Altos and Gomes Lund, among others, again emphasising serious violations of fundamental human rights. In doing so, it appears to distinguish between minor and serious human rights violations, thereby justifying the exclusion of only serious violations from amnesty. Note that Directive 2017/541 makes no such distinction.

[11] The main provisions of International Humanitarian Law are the 1949 Geneva Conventions (four conventions) and their 1977 Additional Protocols; the Declaration of St. Petersburg (1868) concerning the prohibition of small explosive projectiles; the Hague Declarations (1899 and 1907) concerning limitations on weapons and methods of warfare; the Geneva Protocol (1925) concerning the prohibition of poison gas and bacteriological weapons; and other subsequent conventions. At no point does the Advocate General specify which of these provisions are applicable to the interpretation of the terrorist offenses attributed to the CDRs, but rather merely makes a generic reference to International Humanitarian Law.

[12] See the Opinion of the Venice Commission on this matter, accessed November 21, 2025, https://www.coe.int/fr/web/venice-commission/-/opinion-1167.

[13] In fact, at this point the Advocate General has exceeded the scope of his Opinion, since the preliminary questions did not ask the CJEU to rule on whether the Organic Law on Amnesty (OLA) constituted a self-amnesty. Therefore, on November 17, 2025, Mr. Fuster Fabra, the lawyer for the Association of Victims of Terrorism, requested the CJEU to rule on this matter, based on Article 83 of the Rules of Procedure of the CJEU, which allows the Court, after hearing the Advocate General, to decide whether to order the reopening of the oral phase of the proceedings. Furthermore, Article 101 of the aforementioned Rules also provides that, again after hearing the Advocate General, the Court may request clarification from the referring court. It also requests that the CJEU inform the National Court (the body that filed the preliminary question on terrorism) whether or not it intends to rule on the self-amnesty nature of the challenged Spanish law.

[14] In Spanish: “yo me lo guiso, yo me lo como”.

[15] See the work coordinated by Manuel Aragón, Enrique Gimbernat and Agustín Ruiz-Tobledo, Amnesty in Spain: Constitution and Rule of Law, published by Colex in 2024. In it, 78 chapters, written by more than 60 specialists, offer a highly critical dissection of the OLA.

[16] Article 267 of TFEU prescribes: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”

[17] Article 325 of TFEU states: “1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. 2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests. 3. Without prejudice to other provisions of the Treaties, the Member States shall coordinate their action aimed at protecting the financial interests of the Union against fraud. To this end they shall organise, together with the Commission, close and regular cooperation between the competent authorities. 4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union’s institutions, bodies, offices and agencies. 5. The Commission, in cooperation with Member States, shall each year submit to the European Parliament and to the Council a report on the measures taken for the implementation of this Article.”

[18] The Charter in its Article 47, titled “Right to an effective remedy and to a fair trial” prescribes: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

[19] Effective judicial protection is one of the indicators used to assess the effectiveness of the rule of law. This is stated in the Rule of Law Checklist, adopted by the Venice Commission in 2017, accessible at: https://www.venice.coe.int/images/SITE%20IMAGES/Publications/RuleofLawChecklist_ESP2019.pdf. Also in the European Commission’s Justice Scoreboard, 2024, accessible at: https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_es. The European Union uses the Verification Criteria and the Scoreboard to produce the Rule of Law Compliance Reports.

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