Condé-Pumpido will wait for the CJEU decision on amnesty before resolving “trial” protections

The guarantee body considers that before studying the violation of rights denounced by the independence leaders due to the non-application of the amnesty by the Supreme Court, it is “fundamental” to know the decision of Luxembourg on the preliminary question presented by the Court of Auditors concerning the impact that the amnesty for the offense of embezzlement can have on the financial interests of the Union. This decision is expected in February, when three months will have passed since the EU’s Advocate General, Dean Spielmann, presented his findings to the Court affirming that the amnesty does not violate Community law in this regard. In the event that the opinion of the CJEU follows the line of the Attorney General, its opinion will be a boost for the body led by Conde-Pumpido, since, as judicial sources explain, one of the reasons why the Supreme Court refused to apply the law to the crime of misappropriation of the “process” was precisely this impact on the financial interests of the Union.

At the same time, the CJEU will be the first Community judicial body to rule on this controversial law. According to Spielmann, the protection of the “financial interests” of the European Union does not preclude the extinction of liability provided for in the amnesty law for “the acts determining accounting responsibility affecting the financial interests of the EU, because “there is no direct link between these acts and the actual or potential reduction in revenue made available to the Union budget”.

Capital advantage

With possible support from the CJEU on the non-affiliation of European funds, the TC would feel legitimized to annul the Supreme Court’s judgment and protect the applicants. But this argument is not the most important which led the Supreme Court to disapply the law to the independence leaders, but rather the impossibility of amnesty for a crime which, in the form committed, is that of personal enrichment, the standard itself excludes. According to the Supreme Court, the patrimonial advantage appears when a subject increases his patrimony, but also when it does not decrease “because his obligations are assumed illegally by public funds”. In this case, the High Court considers that the accused persons benefited financially since “they personally promoted the illegal political project and approved the expenses of the autonomous administration, without this initiative responding to the satisfaction of any public interest”.

Doubts remain as to how far the CJEU will go in its response to the preliminary ruling of the Court of Auditors: whether Luxembourg will rule only on the financial interests of the Union (subject of the consultation) or whether it will go further and make a wider reading of this crime, affirming that there is no personal enrichment when public funds are used for political activities. If this were the case, legal sources consider that the door would be closed to the Supreme Court to issue a possible preliminary ruling on this case.

Of course, all indications are that the TC will once again find itself in swampy territory when it begins to evaluate the Supreme Court’s interpretation, invading the jurisdictional terrain assigned to it by the dissenting votes in the ERE decision. In any case, and as happened then, in the event of a possible amparo appeal, it will be the High Court which will have the last word and will decide whether it is appropriate to rectify and apply the amnesty to the persons convicted and indicted or whether it is appropriate to act by asking a preliminary question before Luxembourg on another aspect of the embezzlement, taking into account the European concerns over corruption crimes which led the European Parliament to develop a new directive which specifically strengthens the fight against the misappropriation of public funds. In the event that the TS makes this decision, the amnesty for Puigdemont would be paralyzed again until a new ruling from the CJEU is issued.