—Fruela Río Santos, Professor of Constitutional Law, University of Oviedo
On 16 July 2026 the Grand Chamber of the Court of Justice — fifteen judges, none of them Spanish — delivered, through its President Koen Lenaerts, two long-awaited judgments on Organic Law 1/2024 of 10 June, the amnesty statute Spain enacted for the “institutional, political and social normalisation” of Catalonia.
Media attention has fastened on Case C-523/24, Sociedad Civil Catalana, the reference from the Spanish Court of Auditors that touches the best-known figures of the Catalan independence process; yet the genuine European examination of the amnesty takes place in Case C-666/24, ACVOT (ECLI:EU:C:2026:589), which answers the nine questions referred by the Audiencia Nacional in terrorism proceedings against twelve members of the Committees for the Defence of the Republic. Only there does the Court test the statute on its merits, against the Terrorism Directive and against legal certainty, equal treatment and primacy; the auditors’ case does little more than mark out the perimeter of the Court’s own review and censure one procedural feature of the Act. This post argues that the judgments’ true significance lies not in the survival of the Spanish statute but in the doctrine they lay down. Amnesty, the Court holds, is a Member State competence which EU law reviews only at its edges — systemic failures of judicial protection, the effectiveness of the EU rules specifically engaged, impunity for serious human-rights violations — and within those edges the political choice to forgive is not Luxembourg’s to second-guess. What the ruling does not settle, and deliberately so, is the question that now returns to Madrid: whether the Spanish Supreme Court was entitled to read the amnesty’s best-known beneficiaries out of it.
A statute drafted with Luxembourg in mind
The Amnesty Act is no ordinary measure of clemency, and not merely because of its political charge. Article 1 amnesties acts giving rise to criminal or administrative liability, or to liability in respect of public funds, carried out between 1 November 2011 and 13 November 2023 in connection with the consultations of 2014 and 2017 or, more broadly, with the independence process, whatever the stage of execution or the form of participation. Article 2 excludes, among other categories, terrorist acts which intentionally caused serious breaches of human rights, together with criminal offences affecting the Union’s financial interests. Articles 8, 10, and 13 then compel preferential and urgent application: interim measures lifted, a decision within two months, appeals stripped of suspensory effect. The legislature knew perfectly well that the statute would be challenged in Luxembourg and Strasbourg, and the preamble labours to present the institution as fully at home in European law, invoking the Court’s own judgments in X (European arrest warrant — Ne bis in idem) and AB and Others (Revocation of an amnesty), the Strasbourg doctrine of Marguš v Croatia (Grand Chamber, 27 May 2014, App. No. 4455/10), which upheld the setting aside of a wartime amnesty and fixed serious human-rights violations as the outer limit of any measure of clemency, and the Venice Commission’s division of labour between the legislature, which lays down the criteria of clemency, and the courts, which identify the persons falling within them. The strategy has paid off. The Court of Justice reasons, to a striking extent, within the very framework that the statute proposed to it.
Operation Judas and the questions referred
The main proceedings are those known as Operation Judas, in which the Criminal Chamber of the Audiencia Nacional has committed twelve activists for trial on charges of membership of a terrorist organisation, eight of them additionally charged with manufacturing and possessing explosives and attempting to cause devastation. Application of the amnesty was stayed while the court asked Luxembourg, in substance, four things: whether the statute is compatible with Directive (EU) 2017/541 on combating terrorism; whether the clause excluding acts which intentionally caused serious breaches of human rights — whose precise nature and threshold of gravity the statute never spells out — satisfies legal certainty; whether an amnesty confined to one political movement observes equal treatment; and whether forgiving acts aimed at the secession of part of the national territory offends the territorial integrity of the State, which Article 4(2) TEU obliges the Union to respect, together with the free movement rights of Union citizens. The Opinion of Advocate General Spielmann of 13 November 2025 had already sketched the answer: amnesty is an unharmonised field, the Directive contains no clear and precise obligation prohibiting one, and the Member States therefore keep their competence so long as they neither defeat the Directive’s purpose nor create impunity for the gravest conduct. The Grand Chamber followed his opinion in all essentials.
The Directive is silent, and the amnesty stands
The reasoning on the Directive is brief and, once stated, hard to resist. Directive 2017/541 obliges Member States to criminalise terrorist offences and to attach effective, proportionate, and dissuasive penalties to them; it says nothing about national mechanisms extinguishing criminal liability, and it therefore does not itself set the limits of an amnesty. Nor does the Spanish statute defeat the Directive’s effectiveness. Consistently with its declared aim of reconciliation, it merely provides, after the event, that certain offences committed in the specific context of the Catalan independence movement shall not be prosecuted, and it excludes the gravest conduct in every case. The limit is not of Luxembourg’s making. It is the Marguš line transposed: an amnesty may serve reconciliation, but it may not purchase it with impunity for serious violations of human rights. On this the two European courts now speak with one voice, and the Spanish legislature, which wrote the exclusion into Article 2 of the Act with Strasbourg expressly in mind, can fairly claim to have anticipated them both. Identifying which concrete acts fall within that exclusion is a task the Court pointedly leaves to the national courts — a reminder, if one were needed, that the twelve defendants have won an interpretation, not yet an acquittal.
Legal certainty, equality, and a theory of amnesty
The passages of greatest doctrinal reach concern the general principles. To the objection of vagueness the Court replies that the abstract definition of the excluded acts does not offend legal certainty: a legislative technique resting on general formulations rather than exhaustive lists respects that principle provided its interpretation is reasonably foreseeable, and the notions the exclusion clause deploys — intention, causation, the seriousness of a human-rights breach — are stock concepts of criminal law which courts handle every day. The answer on equality matters more. In the light of the statute’s express aim of fostering political reconciliation within the context of one particular movement, offences committed inside that context and offences committed outside it are simply not comparable situations. The differential treatment inherent in any amnesty is therefore not discrimination; it is the institution’s own singularity, restated as a rule of law. With the Directive’s effectiveness preserved and the principles observed, neither primacy nor sincere cooperation is infringed, and the ninth question — territorial integrity — gets no purchase at all. One silence deserves notice. The question of “self-amnesty”, floated by the Commission at the hearing and addressed, and dismissed, by the Advocate General, appears nowhere in the judgments. The Court resolved the dispute without pronouncing on the category, and the omission reads as deliberate.
The companion case: perimeter and a single censure
Sociedad Civil Catalana, read after ACVOT, reveals itself as a judgment about boundaries. Having recognised the Spanish Court of Auditors as a “court or tribunal” for the purposes of Article 267 TFEU, the Grand Chamber restates the governing rule, drawn from AB and Others and Lin: amnesty lies within Member State competence, exercised subject to EU law. It then applies that rule with marked restraint under Article 325 TFEU, whose broad reach — acknowledged in Euro Box Promotion — remains conditional on funds coming from, or destined for, the Union budget. The referring judge’s boldest construction, whereby a hypothetical secession of Catalonia would shrink Spain’s gross national income and with it the Spanish contribution to the Union’s own resources, fails that test; the shrinkage would be the mere corollary of a territory leaving the Treaties, not an assault on the Union’s finances. Once the European connection falls away, the substantive questions in the auditors’ case fall with it, and the merits review is remitted entirely to ACVOT. The Court further upholds the Act’s expeditious procedural design against Article 19(1) TEU, breach of which requires deficiencies of a systemic character, expressly adopting at paragraph 122 of that judgment the account of the statute’s conciliatory purpose given by the Spanish Constitutional Court in judgment 137/2025 of 26 June.
Finally, the Court held that Article 267 TFEU and Article 23 of the Statute preclude the two-month deadline, and the compulsory lifting of interim measures, from applying while a preliminary reference is pending. If Articles 8(3), 10 and 13(3) of the Act cannot be construed in conformity with the Treaties, they must be set aside. State competence over amnesty runs, in short, precisely as far as the Union’s judicial architecture begins.
What remains for Madrid
A preliminary ruling decides no national dispute. The Audiencia Nacional must now determine whether the acts charged against the twelve defendants fall within the amnesty or within its exclusion clause, and the Court of Auditors, the financial-interests argument having been cleared away, must determine whether to extinguish the accounting liability claimed. The genuinely uncertain endgame lies elsewhere. The Constitutional Court upheld the statute in judgment 137/2025 save for two provisions, and has since rejected several further constitutional challenges by applying the doctrine laid down in judgment 137/2025. But it has yet to rule on the constitutional complaints lodged by Carles Puigdemont, Oriol Junqueras and five other independence leaders against the Supreme Court orders refusing to amnesty the offence of misappropriation of public funds. Those complaints were admitted in October 2025 and their examination was deliberately deferred until Luxembourg had spoken; rulings are expected in stages from September.
The European judgments cast an uneven shadow over that review. The Supreme Court rested its refusal on two grounds: the personal patrimonial benefit of the accused — the outlay they were spared from meeting out of their own pockets — and the effect on the Union’s financial interests. After Sociedad Civil Catalana’s restrictive reading of Article 325 TFEU, the second ground is gravely compromised, as the Public Prosecutor’s Office has already urged. The first is a matter of ordinary statutory construction on which Luxembourg had nothing to say, and which the Constitutional Court will assess under the effective-judicial-protection guarantee of Article 24 of the Spanish Constitution, weighing whether a reading that shuts out of the amnesty precisely its most conspicuous intended beneficiaries can stand when the statute itself names misappropriation among the acts capable of amnesty. Should the complaints fail, the Act will stand disapplied at its politically most sensitive core despite the Constitutional Court´s endorsement and the Court of Justice’s conclusion that EU law does not preclude the Act in the respects examined. The institutional anomaly of that outcome needs no underlining.
Why it matters
It is tempting to read these judgments as a Spanish story, and they are more than that. Three months ago, in Commission v Hungary (Values of the Union), the Court made Article 2 TEU justiciable for the first time, reserving the new ground — as I argued on this blog — for violations that are manifest and particularly serious. The amnesty judgments deploy the same architecture of exceptionality, this time in a Member State’s favour: Article 19(1) TEU is breached only by deficiencies of a systemic character, and an amnesty confined to one political conflict, however contested at home, does not come close. The two lines of case-law are mirror images. Where a national measure attacks the foundations of the Union’s legal order, the values bite on their own; where it merely makes a contested political choice within national competence, the Court stands back and polices the edges — the Union budget, the Terrorism Directive, and above all the preliminary-reference dialogue, the one point on which the Spanish statute was condemned. Collective clemency, the Grand Chamber tells us, may be framed in abstract categories so long as their reading is foreseeable; it does not discriminate where the differential treatment flows from its own conciliatory purpose; and it meets its limits at impunity for serious human-rights violations and at the door of Article 267 TFEU. The last word on amnestying misappropriation will accordingly be spoken not in Luxembourg but at the seat of the Spanish Constitutional Court, and with it something larger will be settled: whether, in the Spanish constitutional system, final interpretative authority over a statute passed by Parliament, upheld by the Constitutional Court and now declared compatible with EU law belongs to those who must apply it or to the body charged with guaranteeing it.
Suggested citation:Fruela Río Santos, Can Europe Review an Amnesty? Int’l J. Const. L. Blog, Aug. 7, 2026, at: http://www.iconnectblog.com/can-europe-review-an-amnesty/
