Provisional text

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 13 November 2025 (1)

Case C‑523/24

Sociedad Civil Catalana, Asociación Cívica y Cultural (SCC),

Ministério Fiscal

v

RAS,

AAT,

IGA,

ARMG,

ANMG,

NMF,

ARM,

LBC,

RFB,

FHM,

MMT,

MOQ,

MOP,

ASD,

JTN,

JNB,

TPR,

OJV,

RRR,

DBC,

JGV,

EAC,

EH,

MKEK,

SML,

AVO,

MAB,

JMSI,

LPG,

CPO,

CPC,

ACO,

AMC,

ACJ,

FGS

(Request for a preliminary ruling from the Tribunal de Cuentas (Court of Auditors, Spain))

( Reference for a preliminary ruling – Management of public funds in the context of the movement for Catalan independence – Accounting liability proceedings – Compatibility of Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia with EU law – Article 325 TFEU – Protection of the financial interests of the European Union – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Jurisdiction of the Court – Maximum period of two months for implementation of the amnesty – Right to be heard of the party who has brought the action in the public interest – No stay of proceedings and mandatory lifting of interim measures in the event of a request for a preliminary ruling )

Table of contents

I. Introduction

II. Legal context

A. European Union law

B. Spanish law

1. The Constitution

2. Organic Law No 2/1982 of the TCU

3. Law No 7/1988 on the functioning of the TCU

4. Organic Law No 6/1985 on the judiciary

5. Law No 1/2000 on the Code of Civil Procedure

6. The LOA

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

IV. Analysis

A. The admissibility of the request for a preliminary ruling: whether the TCU is a ‘court or tribunal’ within the meaning of Article 267 TFEU

B. Questions referred for a preliminary ruling

1. Preliminary observations: amnesty and European Union law

2. Whether the European Union’s financial interests have been adversely affected (first, third, fourth and fifth questions)

(a) The first question

(b) The third, fourth and fifth questions

3. Whether the LOA complies with the rule of law (second, sixth, seventh and eighth questions)

(a) The jurisdiction of the Court

(b) Admissibility

(c) The substance

(1) Preliminary remarks

(2) The second question

(3) The seventh question

(4) The sixth and eighth questions

V. Conclusion

I.      Introduction

1.        The word ‘amnesty’ is derived from the Greek word ἀμνηστία (amnēstía), which involves the idea of forgetting, (2) much like the term ‘amnesia’, with which it shares the same etymology. (3) However, the comparison ends there: amnesia is an occurrence suffered; it is involuntary, a disease, a memory disorder, sometimes resulting from a denial of past reality. Amnesty, by contrast, is the product of a political choice, the choice to forget – an act of forgetting which is neither accidental nor involuntary but, on the contrary, intentional and legal. It is a collective pardon granted by a sovereign power, generally for an offence committed against the State. (4) The aim is to de-escalate conflicts generated by events that have opened a political and social rift within a given population and ‘turn the page’. (5)

2.        However, amnesty is thus a complex measure which, adopted with the objective of pardoning offences, may constitute an instrument of impunity. The adoption of an amnesty measure therefore opens a sensitive debate: does it constitute a breach of equality contrary to the idea of justice? (6) Or is it the expression of a form of justice that ‘is implemented afterwards’ (7) in social disputes?

3.        On 10 June 2024, the Cortes Generales (Spanish Parliament) adopted Ley Orgánica 1/2024 de amnistía para la normalización institucional, política y social en Cataluña (Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia) (‘the LOA’). (8) The material and temporal scope of the LOA includes acts giving rise to criminal or administrative liability or liability in respect of public funds, carried out in connection with the referendum on the independence of Catalonia, and acts carried out in connection with the Catalan independence process.

4.        There is no denying that the LOA has provoked a profound and virulent debate within Spain’s political class, institutions, judiciary, academic world and, more generally, Spanish society.

5.        From a legal point of view, the question of the lawfulness of the LOA has recently been referred, by way of a constitutional review, to the Tribunal Constitucional (Constitutional Court, Spain). With the exception of two provisions, that court declared it consistent with the Constitución española (Spanish Constitution) (‘the Constitution’) (9) in a judgment of 26 June 2025. (10)

6.        In that context, the Tribunal de Cuentas (Court of Auditors, Spain) (‘the TCU’) referred a request for a preliminary ruling to the Court of Justice concerning the compatibility of certain provisions governing the grant of amnesty at issue with the protection of the financial interests of the European Union, provided for, inter alia, in Article 325 TFEU, and the principle of effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU.

7.        This case, which has significant constitutional implications for EU law, will give the Court the opportunity to rule on the undoubtedly novel issue of its judicial review of an amnesty law adopted by one of the EU Member States and the extent of such a review.

II.    Legal context

A.      European Union law

8.        Articles 267 and 325 TFEU, Article 23 of the Statute of the Court of Justice of the European Union, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are relevant in the present case.

B.      Spanish law

1.      The Constitution

9.        Article 136 of the Constitution provides:

‘1.      The [TCU] is the supreme body charged with auditing the accounts and financial management of the State and the public sector.

It shall be directly answerable to the Cortes Generales [Spanish Parliament] and shall discharge its duties as delegated by the latter when examining and verifying the General Accounts of the State.

2.      The State Accounts and those of the State’s public sector shall be submitted to the [TCU] and shall be audited by the latter.

The [TCU], without prejudice to its own jurisdiction, shall send an annual report to the Cortes Generales [Spanish Parliament] in which it shall, where applicable, inform the latter of any infringements that may, in its opinion, have been committed, or any liabilities that may have been incurred.

3.      The members of the [TCU] shall enjoy the same independence and protection from dismissal and shall be subject to the same rules on ineligibility as judges.

4.      An organic law shall govern the composition, organisation and duties of the [TCU].’

2.      Organic Law No 2/1982 of the TCU

10.      Article 5 of Ley Orgánica 2/1982 del Tribunal de Cuentas (Organic Law No 2/1982 on the TCU of 12 May 1982) (‘the LOTCU’) (11) provides that ‘[the TCU] shall perform its duties independently and in accordance with the legal order’.

11.      Article 15 of the LOTCU defines the scope of the TCU’s jurisdiction in matters relating to public funds as follows:

‘1.      Judicial proceedings relating to public funds, which are within the jurisdiction of the [TCU], shall be conducted with regard to the accounts which must be rendered by persons who receive, control, manage, retain, use or employ public property, funds or assets.

2.      Jurisdiction over public funds shall extend to public moneys or assets, as well as ancillary obligations imposed as a guarantee for their management.’

12.      Article 17 of the LOTCU provides:

‘1.      Jurisdiction over public funds is necessary and non-extendible, exclusive and full.

2.      The court’s jurisdiction extends, solely for the purposes of discharging its duties, to hearing and deciding preliminary and incidental matters, apart from those of a criminal nature, in so far as they constitute a necessary prerequisite for a declaration of liability in respect of public funds and are directly relevant thereto.

3.      The decision given shall have no effect outside the sphere of jurisdiction in respect of public funds.’

3.      Law No 7/1988 on the functioning of the TCU

13.      Article 49(1) and (3) of Ley 7/1988 de Funcionamiento del Tribunal de Cuentas (Law No 7/1988 on the functioning of the TCU) of 5 April 1988 (‘the LFTCU’) (12) provides:

‘1.      The accounting court shall hear actions for liability, arising from accounts that must be submitted by all those responsible for the management of public moneys or assets, and which are to be deducted from such funds where they produce, whether intentionally or through serious misconduct or negligence, an adverse effect on such moneys or assets resulting from acts or omissions contrary to the laws governing the budgetary and accounting regime applicable to public sector entities or, where applicable, to persons or entities receiving grants, credits, guarantees or other aid from that sector. It shall deal with subsidiary liability only where direct liability, previously declared but not discharged, pertains to accounting matters.

…

3.      Where the facts constitute a criminal offence within the meaning of Article 18(2) of the [LOTCU], the court or tribunal hearing the case shall refrain from determining the resulting liability in respect of public funds, and shall forward to the [TCU] the background information necessary for that court to specify the amount of the losses caused to public funds or assets.’

14.      Article 67 of the LFTCU provides:

‘1.      For the purposes of guaranteeing the accounting liabilities which may be declared in the judicial proceedings of the [TCU], the Ministerio Fiscal [State Counsel’s Office, Spain], the Letrado del Estado [State legal service] or the legal representative of the public sector body affected may apply for the preventive seizure of the assets of those found to be liable in the cases and in the manner laid down by the Code of Civil Procedure, without any security being required in order do so.

2.      For those purposes, the proceedings in which the amount of the accounting liabilities was provisionally specified, referred to in Articles 45 and 47 of the present Law, shall be considered a sufficient document for the seizure to be ordered.

3.      If the preventive seizure order was requested and obtained before the application was lodged, it must be validated when that step is completed in the relevant judicial proceedings or, where appropriate, in the observations of the State Counsel’s Office.’

15.      Under Article 74(1) of the LFTCU:

‘In the judicial proceedings for reintegro por alcance [proceedings for the recovery of an unjustified shortfall in public funds], without prejudice to the procedures laid down for the relevant declaratory judgment, the following restrictions shall apply:

(1a)      The facts shall be limited exclusively to cases of misappropriation or embezzlement in the terms defined by the present Law.

…’

4.      Organic Law No 6/1985 on the judiciary

16.      Article 418(11) of Ley Orgánica 6/1985 del Poder Judicial (Organic Law No 6/1985 on the judiciary of 1 July 1985) (‘the LOPJ’) (13) provides that unjustified delay in conducting or handling proceedings or cases to be heard by a judge or magistrate constitutes a serious offence, save where it constitutes a very serious offence.

5.      Law No 1/2000 on the Code of Civil Procedure

17.      Article 216 of Ley 1/2000 de Enjuiciamiento Civil (Law No 1/2000 on the Code of Civil Procedure) of 7 January 2000 (‘the LEC’), in the version applicable to the main proceedings (14) provides:

‘The civil courts shall dispose of cases on the basis of the facts, evidence and submissions put forward by the parties, save where otherwise provided by law in specific cases.’

18.      Article 434 of the LEC reads as follows:

‘1.      The judgement shall be handed down within [20] days of the conclusion of the trial.

2.      If, within the time limit for delivery of the judgment and in accordance with the provisions of the following articles, final measures are ordered, the time limit for delivery of the judgment shall be suspended.

…’

19.      Article 435 of the LEC provides:

‘1.      It is only on application by a party that the court may, by way of an order, give directions for final measures of inquiry, in accordance with the following rules:

(1a)      Evidence that could have been submitted in a timely and proper manner by the parties, including evidence that could have been submitted after the court’s indication to the parties referred to in Article 429(1), shall not be treated as final measures of inquiry.

(2a)      Where, for reasons that are not attributable to the party who submitted such evidence, one of the pieces of evidence admitted was not [actually] adduced.

(3a)      Relevant and useful evidence concerning facts that are new or have subsequently come to light, as provided for in Article 286, shall also be admitted and adduced.

2.      By way of exception, the court may, either of its own motion or at the request of a party, admit fresh evidence concerning relevant facts, submitted in good time, where the earlier evidence was not conclusive owing to circumstances which no longer exist and are beyond the control and diligence of the parties, provided that there are substantial reasons for believing that the new actions will provide certainty as to those facts.

In such a situation, those circumstances and reasons must be set out in detail in the order for such measures.’

20.      According to Article 436 of the LEC:

‘1.      The measures taken in accordance with the provisions of the preceding articles shall be taken within a period of 20 days and on the date which shall, where necessary, be set by the Letrado de la Administración de Justicia [Registrar], in accordance with the detailed rules laid down in the present Law for evidence of that type. Once completed, the parties shall have five days in which to submit a written statement summarising and assessing the outcome.

2.      The time limit for delivering judgment shall start to run again on expiry of the time limit allowed for the parties to submit the written statement referred to in the preceding paragraph.’

6.      The LOA

21.      Article 1 of the LOA, entitled ‘Objective scope’, provides:

‘1.      The following acts giving rise to criminal or administrative liability or liability in respect of public funds, carried out in the context of the consultations held in Catalonia on 9 November 2014 and 1 October 2017, and the preparation or consequences thereof, are hereby amnestied, provided that they were carried out between 1 November 2011 and 13 November 2023, together with the following actions carried out between those dates in relation to the so-called Catalan independence process, even if they are not related to the abovementioned consultations or were carried out after those consultations took place:

(a)      Acts committed with the intention of claiming, promoting or procuring the secession or independence of Catalonia, as well as acts that contributed to the achievement of such aims.

…

This shall also include actions carried out, in a personal or institutional capacity, with the aim of disseminating the independence project, gathering information and acquiring knowledge about similar experiences or procuring the support of other public or private entities to achieve Catalan independence.

Similarly, acts directly or indirectly linked to the so-called independence process in Catalonia or to its leaders within the context of that process, and carried out by those who have manifestly or demonstrably provided assistance, collaboration, advice of any kind, representation, protection or security to those responsible for the conduct referred to in the first paragraph of this point, or have obtained information to that end, shall also be included.

(b)      Acts committed with the intention of calling for, promoting or procuring the holding of the consultations that took place in Catalonia on 9 November 2014 and 1 October 2017 by any person who lacked the authority to do so or whose actions in calling or holding those consultations have been declared unlawful, as well as acts that contributed to the holding of those consultations.

…

(c)      Acts of disobedience, whatever their nature, public disorder, attacks against the authorities, their agents and public officials, or acts of resistance carried out with the aim of enabling the holding of the popular consultations referred to in subparagraph (b) above, and the consequences of such acts, as well as any other acts defined as criminal offences carried out with the same intention.

In any event, … any other acts consisting in the approval or implementation of laws, regulations or resolutions by public authorities or officials that were carried out for the purpose of enabling, facilitating or assisting with the holding of the consultations referred to in subparagraph (b) above shall be included.

…

2.      The acts giving rise to criminal or administrative liability or liability in respect of public funds which were amnestied under paragraph 1 above shall be amnestied irrespective of their level of implementation, including preparatory acts, and irrespective of the form of involvement, be it perpetration or participation.

3.      Acts that were commenced before 1 November 2011 shall be deemed to fall within the scope of the present law only where they were completed after that date.

Acts that were commenced before 13 November 2023 shall also be deemed to fall within the scope of the present law even where they were completed after that date.

4.      The use of public funds for the purposes described in subparagraphs (a) and (b) shall not be considered enrichment where, irrespective of whether such use complies with the law, it was not intended to obtain a personal financial gain.’

22.      Article 2 of the LOA, entitled ‘Exclusions’, provides:

‘In any event, the following shall be excluded from application of the amnesty provide for in Article 1:

…

(e)      Acts that constitute criminal offences affecting the financial interests of the European Union.’

23.      Article 8(3) of the LOA, entitled ‘Effects on civil liability and liability in respect of public funds’, states:

‘Interim measures ordered in pre-trial proceedings or at first instance, as provided for in Articles 47 and 67 of the [LFTCU], shall be lifted.’

24.      Article 10 of the LOA, entitled ‘Preferential and urgent handling’, provides:

‘The application of the amnesty in each case shall be the responsibility of the judicial, administrative or accounting bodies designated in this law, which shall adopt the relevant decisions in compliance with this law, as a matter of priority and urgency, regardless of the stage of the administrative procedure or judicial proceedings or proceedings relating to public funds concerned.

Decisions shall be delivered within a maximum period of two months, without prejudice to subsequent appeals, which shall not have suspensory effect.’

25.      Article 13 of the LOA, entitled ‘Proceedings in respect of public funds’, provides as follows in paragraph 3 thereof:

‘Where the proceedings to determine liability in respect of public funds brought before the [TCU] are at the first-instance or appeal stage, the competent bodies of that Court, after hearing the State Counsel’s Office and the public sector bodies adversely affected by the loss of public funds or assets connected with the amnestied facts, shall declare that the natural or legal persons concerned have no liability in respect of public finances, where those public sector bodies have not raised any objections.’

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

26.      On 17 February 2022 and 13 April 2022, Sociedad Civil Catalana, Asociación Cívica y Cultural (the civil and cultural association, ‘Catalan Civil Society’) (‘the SCC’) and then the State Counsel’s Office each brought before the referring court a public action seeking to establish a form of accounting liability known as ‘de reintegro por alcance’ (proceedings for the recovery of an unjustified shortfall which is the responsibility of persons entrusted with handling public funds). (15)

27.      By their applications, they seek, first, a declaration that the defendants are liable for damage to the public assets of the Generalitat de Catalunya (Governance bodies of the Community of Catalonia, Spain) (‘the Generalitat’) which the applicants estimated at EUR 5 309 807.02 and EUR 3 429 342.43 respectively and, secondly, an order to repay those sums.

28.      More specifically, proceedings were brought against the defendants for the revenue expended by the Generalitat in the holding of the illegal referendum on self-determination for Catalonia on 1 October 2017, on the one hand, and, on the other, for the promotion of the independence of Catalonia at an international level from 2011 to 2017.

29.      By order of 9 September 2022, the referring court set the amount in dispute at EUR 5 309 807.02. In the light of the applicants’ discontinuance of their claim in relation to certain expenses totalling EUR 336 143.34, brought solely against the defendant JMA by the State Counsel’s Office alone and, only in respect of that item of expenditure, that court held that there was no need to adjudicate on that particular matter.

30.      The expenditure at issue in the main proceedings is as follows:

–        Expenditure incurred in the preparation and holding of the ‘independence’ referendum which took place on 1 October 2017 in the Autonomous Community of Catalonia. That expenditure covers, in essence, the following items: (1) costs of acquiring software and computer applications channelling the participation of volunteers in the organisation of the referendum; (2) advertising expenditure; (3) costs of setting up a register of voters established abroad; (4) display expenditure; (5) costs of acquiring the equipment necessary for holding the referendum (ballot papers, polling surveys, convening members of polling stations); (6) expenditure arising from the use of public premises for the referendum; (7) expenditure on campaigns relating to the image of the Generalitat abroad; (8) expenses relating to the invitation of Members of the European Parliament to visit Catalonia in the days preceding the referendum; (9) expenses associated with the engagement of international experts and observers.

–        Expenditure incurred in order to develop what is known as the ‘external action’ of the Generalitat in the financial years 2011 to 2017. That expenditure covers, in essence, the following items: (1) expenditure incurred by the Secretaría d’Acció Exterior i Unió Europea (External Action and European Union Secretariat of the Generalitat, Spain) with a view to commissioning reports on international treaties to which the Kingdom of Spain is a party; (2) expenses incurred by the various delegations of the Generalitat abroad; (3) expenses incurred by the Consejo de Diplomacia Pública de Cataluña (Public Diplomacy Council of Catalonia, Spain) in order to promote the sovereigntist process: (i) the internationalisation of sport (‘sports diplomacy’); (ii) financing reports on national self-determination in the European Union; (iii) hiring of staff; (iv) conclusion of contracts to acquire the necessary resources to promote the independence of Catalonia abroad; (v) awarding grants to certain entities for the same purpose.

31.      During the investigation phase, interim measures were granted consisting of a security of EUR 4 146 274.97 for the facts relating to the expenditure incurred in carrying out the illegal referendum on the independence of Catalonia, and the provision of a bank guarantee of EUR 5 422 411.10 for the facts relating to the expenditure incurred in developing the ‘external action’ of the Generalitat in the financial years 2011 to 2017.

32.      The circumstances at issue in the main proceedings have also been or are currently the subject of various proceedings before the Spanish criminal courts to determine the criminal liability of the accused. In that regard, the referring court explains that, in a situation involving a ‘single series of facts’, jurisdiction in respect of public funds is compatible with the criminal proceedings, so that, if that ‘single series of facts’ is declared to be an offence, the criminal court will abstain from hearing the case in relation to the liability in respect of public funds arising from those facts and will communicate to the referring court the necessary background information.

33.      It is clear from the order for reference that the Spanish criminal courts have already given a final decision as regards the category of expenditure relating to the preparation and holding of the illegal referendum on the independence of Catalonia. As regards the category of expenditure referred to in the appeals relating to the development of the Generalitat’s ‘external action’ in the financial years 2011 to 2017, criminal proceedings were still pending before the Juzgados de Instrucción nº 13 y nº 18 de Barcelona (Courts of Preliminary Investigation No 13 and No 18 of Barcelona, Spain).

34.      The main proceedings continued and the case went into deliberation on 29 May 2024.

35.      On 11 June 2024, the LOA entered into force.

36.      In examining the applicability of that law in the main proceedings and, therefore, the possible extinction of the defendants’ liability in respect of public funds arising therefrom, the referring court has doubts as to the compatibility of that legislation with EU law.

37.      In those circumstances, the TCU decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests [(16)] and Article 325 TFEU (the principle of effective and deterrent prevention of fraud and any other illegal activity affecting the financial interests of the European Union), along with Article 4(3) TEU (the principle of sincere cooperation), be interpreted as meaning that they are not compatible with the extinguishing of [liability in respect of public funds] established in Article 1(1)(a) [to] (c), (2) [to] (4) and Article 2(e) of the LOA taking into account the circumstance that the alleged [liability in respect of public funds] claimed in the proceedings for recovery of public funds No B-180/21 involves an “effect on the financial interests of the EU”, both (i) if the Court of Justice of the European Union were to give a “restrictive interpretation” to the concept of “protection of the financial interests of the European Union” (which would only cover illegal management activities carried out using public funds from the EU), and (ii) if it were to give a “broad interpretation” to that concept (which would also cover illegal management activities carried out using public funds from a Member State but causing actual or potential loss to the budget of the EU)?

(2)      If the Court of Justice were to give a “restrictive interpretation” to the concept of “protection of the financial interests of the European Union”, should [Article] 2 and [Article] 19(1)(2) TEU and Article 47 of the [Charter] be interpreted as meaning that they are not compatible with Article 10 of the LOA, inasmuch as the mandatory period of two months permitted for the delivery of a decision laid down in that provision would be contrary to the right of every person to a fair trial within “a reasonable time” and would constitute “external pressure” on the court in the case that, before making a decision as to the application of the LOA in the present proceedings for recovery of public funds No B-180/21, it is necessary to carry out some kind of final evidentiary procedure to prove the origin (national or EU budget) or intended purpose (promoting Catalonia’s independence outside Spain during the financial years from 2011 to 2017) of the public funds used to incur the expenses referred to in the applicants’ submissions?

(3)      Should Article 325 TFEU and [Regulation No 2988/95], in conjunction with Article 47 of the Charter and Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms], be interpreted as meaning that they are not compatible with the provisions of Article 13(3) in fine of the LOA, bearing in mind that that provision does not contain any type of mechanism (procedure, legal action, etc.) that would allow the parties that have brought the accounting action (in the present proceedings for recovery of public funds No B-180/21, the SCC and the [State Counsel’s Office]) to raise an objection to the finding in the proceedings at first instance that there is no [liability in respect of public funds], merely requiring that the injured public sector entities (in these accounting proceedings, the [Generalitat], which did not even appear in the proceedings to bring the [action in respect of public funds] and was therefore deemed to have withdrawn) have not objected?

(4)      Should the principles of legal certainty and legitimate expectations, in conjunction with Article 325 TFEU and [Regulation No 2988/95], be interpreted as incompatible with Article 1(1)(a) [to] and (c) of the LOA, in conjunction with the provisions of paragraphs (2) [to] (4) of that article, given the lack of clarity and precision in the definition of the objective, subjective and temporal scope of the LOA, which could result – in the present proceedings for recovery of public funds No B-180/21 – in this Advisor to the Court of Auditors declaring that no [liability in respect of public funds] arises from actions affecting the financial interests of the European Union that were not in fact those envisaged within the scope of the LOA?

(5)      Should Articles 20 and 21 of the Charter be interpreted as meaning that they are not compatible with the provisions of Article 1(1)(a) [to] (c) of the LOA, in conjunction with the provisions of paragraphs (2) [to] (4) of that article and the preamble to that legislation, since, as a result of the abovementioned lack of clarity and precision in the definition of the scope of the LOA, which could lead to a situation in which it is held incorrectly that there is no [liability in respect of public funds], in turn, that circumstance would also give rise to discriminatory or unequal situations in respect of persons who have been convicted of [liability in respect of public funds] in other proceedings for recovery of public funds, which relate to events occurring in the same geographical area (the Autonomous Community of Catalonia) and within the period included in the temporal scope of the LOA?

(6)      Should [Article] 2 and [Article] 19(1)(2) TEU and Article 47 of the Charter be interpreted as meaning that they are not compatible with Article 8(3) of the LOA, which provides for the one-sided, mandatory lifting of interim measures, without leaving any discretion for the court, unlike the procedure applicable in all other proceedings for recovery of public funds, in which, by reference to the LFTCU, the general rules laid down in the LEC covering interim measures are applied?

(7)      Should [Article] 2 and [Article] 19(1)(2) TEU, Article 47 of the Charter and Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms] be interpreted as meaning that they are not compatible with the provisions of Article 13(3) of the LOA (finding of no [liability in respect of public funds] in proceedings at first instance), in so far as this provision does not permit a prior hearing for a public sector body (despite the fact that that body has the ex lege right to institute accounting proceedings) and neither does it give the court the possibility of hearing cases in which a defendant has argued that he or she has not participated in the acts of which he or she is accused, having regard to the fact that, in the present proceedings for recovery of public funds No B-180/21, a public body has appeared as co-applicant, and that some defendants have argued that they did not participate in the events at issue?

(8)      Should [Article] 2 and [Article] 19(1)(2) TEU and Article 47 of the Charter, in particular in conjunction with Article 267 TFEU and Article 23(1) of the Statute of the Court of Justice of the European Union (Protocol No 3), be interpreted as meaning that the suspensory effect of a reference for a preliminary ruling and the effectiveness of the final decision of the Court of Justice are not compatible with [Article] 8(3), [Article] 10 and [Article] 13(3), in conjunction with the provisions of the preamble to the LOA (see the tenth and eleventh paragraphs of Section V), which would impose a situation where the LOA would have absolute effectiveness, depriving the resolution of the question referred for a preliminary ruling of any useful effect, and infringing the principles of the primacy and direct effect of EU law?’

38.      Written observations were submitted by SCC, the State Counsel’s Office, the defendants ACJ, ASD, COT, FHM, LBC, MMT, MOP and RFB, CPC, ACO, LPG, MAB and JMSI, OJV, RRR, DBC, AVO, JGV, EAC, MKEK, SML and EH, RAS, JTN, ANMG, AAT, NMF, IGA, ARM and ARMG, the Spanish Government and the European Commission. Those parties presented oral argument at the hearing held on 15 July 2025.

IV.    Analysis

39.      The present Opinion is structured as follows. First, I shall address the objection that the TCU does not have the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU, and therefore the present request for a preliminary ruling is inadmissible. Secondly, I shall examine whether and, if so, under what conditions the extinction of liability in respect of public funds resulting from the application of the LOA is compatible with the protection of the financial interests of the European Union enshrined in Article 325 TFEU. Thirdly, after assessing the jurisdiction of the Court to examine an amnesty law in the light of that provision and the admissibility of the questions referred by the national court, I shall address the questions relating to the compatibility of certain provisions of the LOA with the principle of effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU.

A.      The admissibility of the request for a preliminary ruling: is the TCU a ‘court or tribunal’ within the meaning of Article 267 TFEU?

40.      According to the settled case-law of the Court, in order to assess whether a referring body has the character of a ‘court or tribunal’ within the meaning of Article 267 TFEU, a question which arises solely under EU law, the Court examines whether certain conditions are met, such as the legal origin of the body, its permanence, the compulsory nature of its jurisdiction, the adversarial nature of the procedure before it, the application by that body of the rules of law and its independence. (17)

41.      In their written observations, most of the defendants in the main proceedings express doubts as to whether the TCU satisfies the requirement of independence.

42.      It should be borne in mind that that requirement has an external and an internal aspect. The latter is linked to the concept of ‘impartiality’ and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. It requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Thus, according to settled case-law, the concept of ‘independence’, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision. (18) Where an appeal is brought before a body against a decision given by the departments of a public authority, that body cannot be regarded as a third party in relation to the administration concerned where it has an organisational and functional link with that authority.

43.      In the present case, it is true that the investigation part of the proceedings for the recovery of an unjustified shortfall in public funds is carried out by investigating officers who are appointed from among the public officials of the TCU or from among the public officials assigned to the province where the acts in question took place. (19) However, like the Commission, I consider that the finding that those public officials are appointed to investigate a case and may therefore, in that context, take certain measures and implement appropriate procedures to investigate the facts and the alleged perpetrators is not such as to call into question the status of the TCU as a third party, since those delegates do not participate in the judicial activity as such. In the absence of such an overlap in functions, the independence of the TCU, considered from its internal aspect, must be recognised. (20)

44.      I note, in that regard, that Article 24 of the LFTCU provides, inter alia, that the members of the TCU are to perform their duties in accordance with the principles of impartiality and dignity inherent therein. They are obliged to withdraw from any case involving entities in which they have exercised management, advisory or administrative functions, or in which they have had any interest, directly or through their family members.

45.      Since the TCU is therefore a ‘court or tribunal’ within the meaning of Article 267 TFEU, the present request for a preliminary ruling must be declared admissible.

B.      Questions referred for a preliminary ruling

1.      Preliminary observations: amnesty and European Union law

46.      Amnesty usually consists in the waiver by the State of its power to prosecute and try criminal offences, as well as, where appropriate, to enforce the penalties laid down for such offences (ius puniendi). (21) It may also consist in the State refraining from imposing or enforcing punishments or financial penalties for offences of a fiscal nature or, as in the present case, from asserting the non-contractual liability of its public officials and policymakers for losses caused to public assets. The minimum common denominator of these various forms of amnesty is the exercise of a sovereign, exclusively State prerogative.

47.      In terms of EU legislation, amnesty appears in several pieces of secondary legislation.

48.      Article 3(1)(1) of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (22) includes, among the grounds for mandatory non-execution of the European arrest warrant, the case in which the offence on which the warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law. Similarly, Article 10(1)(d) of Directive 2011/99/EU on the European protection order (23) provides, among the grounds for non-recognition of that order, that such protection derives from the execution of a penalty or measure which, according to the law of the executing State, is covered by an amnesty and relates to an act or conduct that falls within its competence according to that law.

49.      Article 39(1)(c) of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (24) provides that, where prosecution has become impossible, pursuant to the law of the Member State of the handling European Delegated Prosecutor, amnesty granted to the suspect or accused person is one of the grounds for authorising the Permanent Chamber to dismiss the case against such a person. (25)

50.      Lastly, other instruments applying the principle of mutual recognition in the context of judicial cooperation in criminal matters provide that amnesty may be granted by both the issuing State and by the executing State. (26)

51.      It follows that the EU legislature was careful to respect the exclusive competence of the Member States in the area of amnesty. It confined itself to recognising its existence and took it into account in the instruments of judicial cooperation, but did not harmonise its content or the conditions for granting it.

52.      At the judicial level, reference should first be made to the judgment of the Court in AB and Others (Revocation of an amnesty). (27)

53.      By the first question referred in that case, the Court was asked about the compatibility with the principle ne bis in idem (28) of the issuing of a European arrest warrant against a person who was the subject of a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty and setting aside that judicial decision. In the light of its own jurisdiction, the Court held that it is true that the main proceedings concerned offences which were not harmonised under EU law and that that law does not govern the adoption and revocation of an amnesty. However, it declared that it had jurisdiction on the ground that that question did not concern the interpretation of national legislation concerning those offences or that amnesty, but the interpretation of the principle ne bis in idem in the context of the procedure for issuing a European arrest warrant falling within the material and temporal scope of Framework Decision 2002/584. (29)

54.      However, the Court declared that it lacked jurisdiction with regard to the third question referred in that case. When called on to rule on the compatibility with a series of provisions of primary EU law of national legislation limiting the review carried out by the constitutional court solely to the compatibility of a law revoking an amnesty with the national Constitution, without examining its compatibility with EU law, the Court held that such a procedure did not fall within the scope of EU law and, therefore, falls outside its jurisdiction. (30)

55.      Reference should also be made to the judgment handed down by the Court in a case concerning a tax amnesty put in place by the Italian Republic. (31) It is apparent from that judgment that, under the national legislation establishing that amnesty, taxable persons who had not complied with their VAT obligations in respect of a series of tax years could definitively escape those obligations and the penalties incurred for non-compliance with those obligations by paying a lump sum instead of an amount proportionate to the turnover generated. In so far as the relevant provisions of that national legislation thus provided for a general and indiscriminate waiver of verification of taxable transactions effected during those tax years, the Court held that they rendered Articles 2 and 22 of Sixth Directive 77/388/EEC nugatory, thus undermining the effectiveness of that directive. (32)

56.      In summary, the Court examined amnesty in the case of a provision of secondary EU law referring to the amnesty or a possible infringement of the objectives and/or effectiveness of the provisions of the secondary legislation concerned.

2.      Whether the European Union’s financial interests have been adversely affected (first, third, fourth and fifth questions)

(a)    The first question

57.      By its first question, the referring court asks, in essence, whether Article 325 TFEU (33) precludes the extinction of liability provided for by the LOA for non-criminal acts affecting the financial interests of the European Union, such as acts relating to public funds, in the absence of a direct link between those acts and the reduction, actual or potential, in the revenue made available to the EU budget. (34)

58.      Article 2(e) of the LOA expressly excludes from its scope ‘acts that constitute criminal offences affecting the financial interests of the European Union’. According to the referring court, it is apparent from an a contrario reading of that article that, by limiting the exclusion provided for to criminal acts alone, the national legislature implicitly considered that acts giving rise to liability in respect of public funds governed by Article 1(1)(a) to (c) of that law, read in conjunction with paragraphs 2 to 4 of that article, may be covered by the amnesty.

59.      At the outset, it should be recalled that Article 325(1) TFEU requires Member States to counter fraud and any other illegal activities affecting the financial interests of the European Union through effective deterrent measures.

60.      As regards the expression ‘any illegal activities’, it is established that the term ‘illegal activities’ usually denotes unlawful behaviour, and the use of the word ‘any’ indicates the intention to encompass all unlawful behaviour, without distinction. In view of the importance that should be accorded to protecting the financial interests of the European Union, which in itself constitutes an objective of the latter, the concept of ‘illegal activities’ cannot, moreover, be interpreted restrictively. That concept thus covers, inter alia, any act of corruption of public officials or any abuse committed by them in the exercise of their public duties which is capable of affecting the financial interests of the European Union. (35)

61.      There is little doubt that the activities at issue in the main proceedings, namely acts of misappropriation of public funds committed between 2011 and 2017, fall within that concept of ‘illegal activities’.

62.      As regards the concept of ‘financial interests’ of the European Union, according to the case-law, that concept encompasses not only revenue made available to the EU budget but also expenditure covered by that budget. (36) In the present case, the order for reference does not refer to any element indicating that funds from the EU budget or managed by or on behalf of the European Union have been used.

63.      According to the referring court, the protection of the financial interests of the European Union has also been interpreted broadly by the Court. Such an interpretation would mean, in its view, that any illegal activity causing damage to public assets would be covered by Article 325(1) TFEU, irrespective of the origin or destination of the funds which are the subject of such an activity.

64.      That position is largely based on the judgment in Euro Box. It should be borne in mind that, in the case which gave rise to that judgment, the Court was asked, inter alia, whether national legislation and a national practice according to which judgments relating to corruption and VAT fraud, which had not been delivered by panels of judges specialising in that area (at first instance) or by panels of judges of which all the members were appointed by drawing lots (on appeal), were rendered absolutely invalid, with the result that cases relating to corruption and VAT fraud had to be re-examined at first and/or second instance, was compatible with Article 325(1) TFEU. As the referring court points out, some of those corruption offences, committed by senior officials of the Romanian Government, did not concern European funds.

65.      According to the referring court, the Court of Justice nevertheless considered that, in the light of the primary objective of preventing fraud and corruption going unpunished, it is for the national legislature to amend its legislation and to ensure that the procedural rules applicable to the prosecution of, and the imposition of penalties for, offences of fraud affecting the financial interests of the European Union and offences of corruption in general are not designed in such a way that there arises, for reasons inherent in those rules, a systemic risk that acts that may be categorised as such offences may go unpunished.

66.      For my part, I am convinced that that finding cannot justify the conclusion that infringements which do not relate to EU funds also fall within the scope of Article 325(1) TFEU.

67.      It is true that, in the case which gave rise to the judgment in Euro Box, the requirement that the penalties for offences affecting the financial interests of the European Union be effective and act as a deterrent entailed the obligation for the national legislature to amend the procedural rules applicable to the prosecution of, and the imposition of penalties for, not only fraud offences affecting the financial interests of the European Union, but also of offences of corruption in general.

68.      That was, however, motivated by a particular feature of that case. As the Court stated, as far as concerns Romania, the obligation to fight corruption affecting the European Union’s financial interests is supplemented by the commitments accepted by that State on its accession and given concrete expression by the adoption of Decision 2006/928/EC. (37) The benchmarks that Romania thus committed to achieving are binding on it, in the sense that Romania is subject to the specific obligation to achieve those objectives, to adopt the appropriate measures with a view to achieving them as soon as possible and to refrain from implementing any measure that would risk undermining the attainment of those objectives.

69.      Therefore, according to the Court, the obligation to combat corruption effectively and, in particular, high-level corruption, which stems from the benchmarks set out in the annex to Decision 2006/928, read in conjunction with Romania’s specific commitments, is not limited merely to cases of corruption affecting the European Union’s financial interests but relates to corruption in general. (38) It follows that the obligation on the Romanian legislature to provide for the application of effective and dissuasive penalties for corruption offences in general does not arise from a broad interpretation of Article 325(1) TFEU, but from the requirements set out in Decision 2006/928.

70.      To date, there is no equivalent decision in relation to the Kingdom of Spain, which means that the view cannot be taken that an obligation with the same content as that set out in the preceding point would be incumbent on the Spanish legislature.

71.      A broad interpretation of the protection of the financial interests of the European Union also follows, according to the referring court, from the case-law on aid financed by EU funds. That court states, in essence, that it is apparent from the judgment in ANAS (39)that the fulfilment of the third condition of an ‘irregularity’ within the meaning of Article 2(7) of Regulation (EC) No 1083/2006, (40) namely that relating to the existence of a prejudice to the general budget of the European Union, does not require the existence of a specific financial impact on that budget to be demonstrated. A failure to comply with the applicable rules would constitute an irregularity in so far as the possibility cannot be excluded that that failure had an impact on the budget of the fund concerned. (41)

72.      In that regard, the referring court observes that certain acts of misappropriation of funds were committed in order to promote the secession of Catalonia and that, if that secession had been carried out, Spain’s gross national income (GNI) would have decreased. That, in turn, would have led to a reduction in the revenue which that Member State is required to make available to the EU budget pursuant to Decision 2007/436/EC, Euratom. (42) Consequently, according to the referring court, it cannot be ruled out, that the acts at issue in the main proceedings potentially harmed the financial interests of the European Union.

73.      Before examining that argument, I consider it necessary to add something to the relevant legal framework circumscribing the analysis of the case.

74.      According to the case-law of the Court, in order to ensure the protection of the ‘financial interests of the Union’, the Member States are obliged to adopt the measures necessary to guarantee the effective and comprehensive collection of own resources, (43) constituted by revenue from the application of Common Customs Tariff duties and from the application of a uniform rate to the harmonised VAT assessment bases. (44) That conclusion is based on the finding that there is a direct link between the collection of revenue and the availability to the EU budget of the corresponding resources, since any failure in the collection of the former potentially causes a reduction in the latter. (45)

75.      Furthermore, and as the referring court points out, it is apparent from the case-law that the prejudice caused to the EU budget may be purely potential. In particular, the Court stated that even irregularities having no specific financial impact may be seriously prejudicial to the financial interests of the European Union, since Article 325(1) TFEU could cover not only acts that actually cause a loss to the EU budget but also attempts to commit such acts. (46)

76.      While the latter case-law demonstrates a broad interpretation of the protection of the financial interests of the European Union, it does not, in my view, permit a direct link to be established between the unlawful activities at issue in the main proceedings and the European Union’s own resources.

77.      Those illegal activities do not relate to the system for making own resources available established by Decision 2007/436. On the one hand, the misappropriated funds were not subject to an obligation to be made available to the EU budget under that decision. On the other, the defendants in the main proceedings were not responsible for collecting those funds and making them available to that budget.

78.      Moreover, to consider that the connecting factor identified by the referring court, according to which the illegal activities at issue potentially harmed the financial interests of the European Union in so far as the reduction in Spain’s GNI would lead to a reduction in that Member State’s contribution to the EU budget, is sufficiently direct, would have the effect of unduly extending the scope covered by EU law.

79.      Two examples given by the Commission in its written observations seem to me to be particularly helpful in that regard.

80.      First, that interpretation would lead to the conclusion that a very large number of situations in which the amount of revenue made available to the EU budget may be affected by decisions of a political, essentially national nature, affect the financial interests of the European Union. For example, if a Member State decides, pursuant to Article 50 TEU, as the United Kingdom did in recent history, to withdraw from the European Union, such a decision should be considered to be detrimental to the financial interests of the European Union and is thus incompatible with Article 325 TFEU. (47)

81.      Secondly, that interpretation could mean that any illegal activity committed by the national authorities responsible for public funds and liable to have an impact on the GNI of a Member State would potentially undermine the financial interests of the European Union justifying, where appropriate, the intervention of the European Anti-Fraud Office (OLAF) or of the European Public Prosecutor’s Office (EPPO). There is no doubt, in my view, that such an intervention would constitute undue interference by EU law in the management of the public funds of a Member State.

82.      In the light of the foregoing considerations, I propose that the Court’s answer to the first question should be that Article 325 TFEU does not preclude the extinction of liability provided for by the LOA for non-criminal acts affecting the financial interests of the European Union, such as acts relating to public funds, in the absence of a direct link between those acts and the reduction, actual or potential, in the revenue made available to the EU budget.

(b)    The third, fourth and fifth questions

83.      As regards the third, fourth and fifth questions referred by the national court, it should be noted that they are based on the premiss that the first question should be answered in the affirmative. I therefore consider that the Court does not have jurisdiction to answer those questions.

3.      Whether the LOA complies with the rule of law (second, sixth, seventh and eighth questions)

84.      In what follows, I shall examine the second question referred to the Court by the national court, the seventh question and, together, the sixth and eighth questions.

85.      The examination of the substance of those questions entails that it first be established, on the one hand, that the second subparagraph of Article 19(1) TEU constitutes a sufficient connection with EU law in itself, with the result that the Court has jurisdiction to rule on the interpretation of those questions, and, on the other, that they satisfy the criteria for admissibility arising from the case-law of the Court.

(a)    The jurisdiction of the Court

86.      Since the judgment in Associação Sindical dos Juízes Portugueses, (48) it is established that, under the second subparagraph of Article 19(1) TEU, the Member States are required to ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within their judicial system in the fields covered by that law, meet the requirements of effective judicial protection. (49)

87.      The scope of the second subparagraph of Article 19(1) TEU is thus extremely broad, in so far as that provision is intended to apply to any national body which can rule, as a ‘court or tribunal’, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law. (50) In other words, the mere fact that it is a body with jurisdiction to rule on the interpretation or application of EU law is sufficient for that provision to be relevant.

88.      The second subparagraph of Article 19(1) TEU refers to ‘the fields covered by Union law’ irrespective of the situation in which Member States are implementing that law, within the meaning of Article 51(1) of the Charter. It follows that the areas reserved for the competence of the Member States do not fall outside the scope of Article 19, cited above.

89.      From the very first cases in this line of case-law, that question has arisen, unsurprisingly, with regard to the organisation of justice within the Member States, an area reserved to those Member States under Article 4(2) TEU. (51)

90.      When questioned on that sensitive question, the Court held that, although the organisation of justice in the Member States falls within their competence, those States are nevertheless required, when exercising that competence, to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU. It also stated, in the judgment in Commission v Poland (Independence of the Supreme Court) that, ‘by requiring the Member States thus to comply with those obligations, the European Union is not in any way claiming to exercise that competence itself nor is it, therefore, … arrogating that competence’. (52) Accordingly, the Court has not sought to remodel national legal systems according to a specific system of judicial organisation, that competence being exclusively a matter for the Member States. It has confined itself to examining the rules relating to the organisation and functioning of national courts from the point of view of their conformity with effective judicial protection, in particular with the principles of the independence and impartiality of the judiciary and of a tribunal previously established by law.

91.      In the present case, which concerns another matter closely linked to State sovereignty, namely the granting of an amnesty, that reasoning should be reproduced in its entirety.

92.      Thus, after recalling that the amnesty falls within the exclusive competence of the Member States, the Court should state that they are nevertheless required, when adopting an amnesty law, to comply with the requirements of effective judicial protection arising from the second subparagraph of Article 19(1) TEU.

93.      An examination of such a law in the light of that provision – it is important to add – would in no way amount to depriving the Member States of the exercise of their exclusive competence in the area of amnesty. It is sufficient to consider, by way of illustration, that the provisions referring to the objective pursued by the national legislature and those relating to the delimitation of the material and temporal scope of that law are necessarily excluded from the judicial review carried out by the Court under the second subparagraph of Article 19(1) TEU.

94.      There is no longer any doubt, at this stage, that the TCU is a body capable of ruling, as a ‘court or tribunal’, on questions relating to the application or interpretation of EU law. It follows that the procedure before it must satisfy the requirements inherent in effective judicial protection for the purposes of the second subparagraph of Article 19(1) TEU.

95.      The Court therefore has jurisdiction to examine the second, sixth, seventh and eighth of the referring court’s questions from the perspective of that provision.

(b)    Admissibility

96.      As regards the admissibility of the referring court’s questions, I would like to state at the outset that, like Advocate General Bobek, I am convinced that the threshold for admissibility with regard to the second subparagraph of Article 19(1) TEU is not, and need not be, placed higher than usual. That provision already contains a relatively high substantive threshold for finding that it has been infringed. (53)

97.      In other words, the determination of the admissibility threshold must, in my view, be framed by the general principles governing the admissibility of questions referred for a preliminary ruling within the meaning of the Court’s case-law.

98.      In that regard, it should be recalled that, under the cooperation mechanism between the Court of Justice and the national courts established by Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. (54)

99.      The Court has thus stated that it is apparent from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling . That procedure therefore requires the existence, between that dispute and the provisions of EU law whose interpretation is sought, of ‘a connecting factor … by virtue of which that interpretation is objectively required for the decision to be taken by the referring court’. (55)

100. Furthermore, according to settled case-law, questions relating to the interpretation of EU law raised by a national court within the regulatory and factual framework which it defines under its own responsibility, and the accuracy of which it is not for the Court of Justice to verify, are presumed to be relevant. The Court of Justice may refuse to rule on a question for a preliminary ruling referred from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (56)

101. As regards the second question referred for a preliminary ruling in the present case, the referring court states that even if the Court were to answer the first question by taking the view that it is necessary to demonstrate that EU funds were used to commit the acts at issue in the main proceedings in order to find ‘fraud [or] any other illegal activities affecting the financial interests of the EU’ within the meaning of Article 325 TFEU, it would nevertheless be obliged to apply the amnesty to those acts, without being able to adopt, within a period as short as two months, investigative measures aimed at verifying the existence of an infringement of that provision.

102. Although the referring court thus relies on the EU origin of the funds in question, which has not been established by the national criminal courts nor alleged by the parties to the main proceedings, and which may never be established, it is important to note that the Court of Justice has already stated that preliminary questions mentioning the fact that the court which raised those questions is prevented from establishing an infringement of EU law because that national procedural law does not allow it to do so are not hypothetical. (57) In my view, this is the case with the second question in the present case.

103. The sixth and eighth questions referred for a preliminary ruling concern provisions of the LOA requiring the national courts to adopt a decision exempting liability in respect of public funds and to lift interim measures within two months, even though the Court of Justice, to which a request for a preliminary ruling has been made, has not yet given its decision. That being so, the interpretation of the second subparagraph of Article 19(1) TEU thus requested seems to me to respond to an objective need for the decision which the referring court must take, since the preliminary ruling to be given is likely to influence the decision concerning the lifting or maintenance of the interim measures.

104. I therefore take the view that the second, sixth and eighth questions referred to the Court in the present case should be regarded as admissible.

105. The seventh question referred for a preliminary ruling concerns a provision of the LOA under which a decision exonerating natural and legal persons from liability in respect of public funds is to be taken by the referring court, first, after hearing the State Counsel’s Office and the adversely affected public sector bodies, to the exclusion of the body which brought the action in the public interest, and, secondly, without being able to assess the evidence in order to determine whether the defendants in the main proceedings committed the acts for which their liability is sought.

106. I admit that the admissibility of this question might, at first sight, appear doubtful.

107. Indeed, unlike the other questions referred for a preliminary ruling, this one is not formulated from the standpoint of the independence of the judiciary, but from the standpoint of respect for the right of the co-applicant (SCC) to be heard and the defendants’ right of defence. In addition, nothing in the court file suggests that the parties alleged a breach of those rights in the main proceedings.

108. However, in view of the broad approach which I recommend and which I explained above, I consider that the seventh question should also be regarded as admissible.

109. Indeed, I would point out that the case-law mentioned in point 100 above must be understood as meaning that it would not be possible to refer to the Court of Justice all the preliminary questions, even hypothetical ones, which a national court may raise in the course of proceedings as to the compatibility of its national law with EU law, without calling into question the requirement for a link between the questions raised and the solution to the dispute before the national court. As it is, the seventh question does not appear to belong to that category of questions.

110. In the light of the foregoing considerations, I consider that the second, sixth, seventh, and eighth questions referred to the Court of Justice by the national court should be declared admissible.

(c)    The substance

(1)    Preliminary remarks

111. Before addressing the substance of the various questions referred in the present case in the light of the second subparagraph of Article 19(1) TEU, it is necessary to provide some information relating to the content of the protection afforded by that provision.

112. In the judgment in ASJP, the Court held, first, that Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU and, secondly, that the principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law which is now reaffirmed by Article 47 of the Charter. (58) The latter finding led it to state, in a subsequent judgment, that Article 47 of the Charter must be ‘duly taken into consideration’ for the purpose of interpreting the second subparagraph of Article 19(1) TEU. (59)

113. The relationship between those two provisions, which is essential for the definition of the substantive content of the second subparagraph of Article 19(1) TEU, is understood by the Court as follows: ‘while Article 47 of the Charter helps to ensure respect for the right to effective judicial protection of any individual relying, in a given case, on a right which he or she derives from EU law, the second subparagraph of Article 19(1) TEU seeks to ensure that the system of legal remedies established by each Member State guarantees effective judicial protection in the fields covered by EU law’. (60)

114. According to the Court, the recognition of the right to an effective remedy guaranteed by Article 47 of the Charter, in a given case, presupposes, inter alia, that the person invoking that right is relying on rights or freedoms guaranteed by EU law. That right corresponds to the obligation imposed on the Member States, in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law. (61)

115. Thus, the second subparagraph of Article 19(1) TEU concerns elements forming part of the systems of legal remedies established by a Member State, and not elements relating to specific cases or individual situations, as is the case with Article 47 of the Charter. The former provision is addressed to the Member States, while the latter confers a right on citizens of the European Union. That is why, according to the Court, the obligation on Member States resulting from Article 47 of the Charter ‘corresponds’ to the right guaranteed in Article 19(1) TEU.

116. It follows that the obligation arising from the second subparagraph of Article 19(1) TEU means not only that, from an organic point of view, the bodies which may interpret or apply EU law must meet the requirements attached to the status of ‘court or tribunal’, such as those of independence, impartiality and ‘tribunal previously established by law’, but also that, from a procedural point of view, the various guarantees relating to a ‘fair trial’ must be guaranteed before them.

117. That interpretation is supported by the more recent case-law of the Court. In the judgments in Commission v Poland (Disciplinary regime for judges) (62) and PT, (63) the Court stated that respect for the right to a fair trial and the rights of the defence is one of the elements forming an integral part of the fundamental principle of effective judicial protection referred to in the second subparagraph of Article 19(1) TEU.

118. It is true that, in the first judgment, the question of observance of those rights was regarded as ancillary to that of compliance with the requirement of the independence of the body in question. The infringement of which Poland was accused concerned procedural rules which, according to the Commission, had the effect of restricting the rights of judges against whom disciplinary proceedings were brought to be heard effectively by the disciplinary court and to benefit from an effective defence before that court. Since they were applied in the context of a disciplinary regime displaying the shortcomings described by the Court, those rules could, according to the Court, prove to be such as to increase still further the risk of the disciplinary regime applicable to judges being used as a system of political control of the content of judicial decisions. The restrictions on the rights of the defence arising from those procedural rules thus undermined the independence of judges. (64)

119. However, it is apparent from the second judgment that a breach of the rights of the defence is capable, in itself, of infringing the second subparagraph of Article 19(1) TEU. The case giving rise to that judgment concerned a national provision which, in criminal proceedings brought against several defendants for their participation in the same organised criminal group, made judicial approval of a settlement agreement concluded between one of the defendants and the public prosecutor during the judicial phase of those proceedings subject to the consent of all the other defendants.

120. Crucially, the Court based its response on the finding that the principle of effective judicial protection is infringed if a judicial decision is based on facts and documents of which the parties themselves, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to formulate an opinion. It thus concluded that there was no infringement in so far as the provision at issue was specifically intended to safeguard the rights of the defence of defendants who, since they had not pleaded guilty, had to be tried in subsequent criminal proceedings, taking into account the information concerning them that may be included in the agreement for settlement and the statements which may be made, as a witness, by the defendant who pleaded guilty. (65)

121. It follows from the case-law examined, in my view, that the substantive content of the second subparagraph of Article 19(1) TEU is identical to that of Article 47 of the Charter. (66) That said, I am of the view that an infringement of the second subparagraph of Article 19(1) TEU may be found only where the alleged incompatibilities are of a certain gravity or systemic nature. (67) In order to determine whether that is the case, I agree with Advocate General Bobek that ‘the crucial issue is … whether the (one-off or recurring) problem brought to the attention of the Court is likely to threaten the proper functioning of the national judicial system, thereby jeopardising the capacity of the Member State in question to provide sufficient remedies to the individuals’. (68)

122. It is in the light of the foregoing considerations that I shall now examine the substance of the questions referred to the Court of Justice by the national court.

(2)    The second question

123. By its second question, the referring court asks, in essence, whether Article 19 TEU, read in the light of Article 47 of the Charter, precludes a national provision such as the second subparagraph of Article 10(2) of the LOA, according to which any decision relating to the application of the amnesty in a given case must be adopted within a maximum period of two months, in so far as that period would not allow the national court to have available to it the investigative measures necessary for determining whether the assets affected by the acts giving rise to liability in respect of the public funds under examination constitute EU funds.

124. In the view of the referring court, the maximum period of two months established by the second subparagraph of Article 10(2) of the LOA thus goes against the case-law of the Court of Justice preventing judges from being put under ‘external pressure’ which could compromise their independence. That time limit prevents the competent national court from adopting the investigative measures provided for in Articles 435 and 436 of the LEC (‘Final Measures’), aimed, in particular, at identifying the national or European origin of public assets affected by acts likely to give rise to liability in respect of public funds. Thus, the national court would end up systematically applying the amnesty to acts that could harm the financial interests of the European Union.

125. It should be recalled that, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive. (69)

126. According to settled case-law, the guarantees of independence and impartiality required under EU law presuppose the existence of rules, in particular as regards the composition of the body, the appointment, the term of office and the grounds for abstention, challenge and dismissal of its members, which enable any legitimate doubt to be removed, in the minds of litigants, as to the imperviousness of that body to external factors and as to its neutrality in relation to the conflicting interests. (70)

127. In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. As the referring court observes, the rules applicable to the status of judges and the performance of their duties as judges must be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in an individual. (71)

128. If that judicial approach is prolonged in the present case, a procedural provision such as the second subparagraph of Article 10(2) of the LOA may constitute an indirect influence, capable of shaping the decisions given by the courts concerned, and thus infringe the requirement of independence arising from the second subparagraph of Article 19(1) TEU. I would point out that a finding of such an infringement requires not only that the period referred to in the national procedural provision concerned be excessively short, but also that that period be binding. If that were the case, that period would be such as to deprive those courts of the power to adopt all the investigative measures necessary to ascertain whether the misappropriated funds in the present case must be regarded as being EU funds.

129. In that regard, it must be borne in mind that, by definition, amnesty has the effect of cancelling or preventing judicial decisions or proceedings. Generally approved by the legislature, it concerns a category of acts committed during a particular period of time. In that context, courts are called upon to apply the legislation governing the grant of an amnesty to specific cases. As the European Commission for Democracy through Law (‘the Venice Commission’) essentially stated in its opinion on the draft Spanish amnesty law, (72) an amnesty is compatible with the principle of the separation of powers if it does not remove the authority thus conferred on the judiciary altogether. In other words, as the Venice Commission itself stated in its opinion on the provisions on political prisoners in the Georgia amnesty law, (73) a procedure whereby the judiciary is responsible, by decision of the Georgian Parliament, for deciding whether specific persons fulfil the general criteria determined by the Georgian Parliament for the application of the amnesty is consistent with that principle.

130. In the context of the preliminary ruling procedure, it is for the referring court to assess whether the time limit is excessively short and restrictive. In order to provide it with a useful answer, however, I would like to emphasise the following.

131. Both in its written observations and at the hearing, the Spanish Government stated that the time limit laid down in the second subparagraph of Article 10(2) of the LOA is purely indicative, since the adoption of any decision provided for in that article is subject, in any event, to the assessment by the court of whether the conditions laid down for the application of the amnesty have been met. None of the interested parties has provided evidence capable of rebutting that interpretation.

132. Even assuming that the maximum period of two months laid down in the second subparagraph of Article 10(2) of the LOA could be regarded as being excessively short, the interested parties appear to agree that judges who do not comply with that time limit are at risk of incurring disciplinary liability under Article 418 (11) of the LOPJ. In that regard, I note that that article makes the unjustified delay in the initiation or handling of proceedings or a case before a judge or magistrate in the performance of his or her duties a serious offence, save where it constitutes a very serious offence. (74) In other words, the mere failure to comply with that time limit  appears not to entail the imposition of disciplinary penalties, (75) which would show that it is indicative in nature. Thus, the second subparagraph of Article 10(2) of the LOA could lend itself to an interpretation consistent with the second subparagraph of Article 19(1) TEU, according to which it is open to the Spanish courts to exceed the maximum period of two months for applying the amnesty where that does not constitute an ‘unjustified delay’ within the meaning of Article 418(11) of the LOPJ, as in the case of the adoption of investigative measures.

133. In the light of all those considerations, I propose that the Court should respond to the second question that the second subparagraph of Article 19(1) TEU precludes a national provision such as the second subparagraph of Article 10(2) of the LOA, according to which any decision relating to the application of the amnesty in a given case must be adopted within a maximum period of two months, where that period of a mandatory nature prevents the national court from adopting the investigative measures necessary for determining whether the assets affected by the acts giving rise to liability in respect of the public funds under examination constitute EU funds.

(3)    The seventh question

134. The seventh question referred by the national court consists of two parts.

135. First, the referring court seeks to ascertain, in essence, whether the second subparagraph of Article 19(1) TEU (76) precludes a national provision such as Article 13(3) of the LOA, in so far as that provision requires national courts to hear only the public sector entities adversely affected by the loss of public funds in connection with the amnestied facts and the State Counsel’s Office, to the exclusion of the parties who brought the action in the public interest, before giving a decision exonerating natural or legal persons from liability. Secondly, that court asks, in essence, whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, precludes a national provision such as Article 13(3) of the LOA, in so far as that provision requires the national courts to adopt that decision exempting liability without allowing them to assess the evidence in order to determine whether the defendant committed the acts in respect of which his or her liability in respect of public funds is sought.

136. As regards the first part of that question, it should be recalled at the outset that, in the case in the main proceedings, the injured public sector body (the Generalitat) was excluded from the proceedings because it did not bring an action within the prescribed time limit. SCC and the State Counsel’s Office were the only parties who, as co-applicants in the main proceedings, applied for a declaration of liability in respect of public funds.

137. According to the referring court, the obligation to hear the injured public entities and the State Counsel’s Office, to the exclusion of the other applicant in the main proceedings, is such as to infringe that party’s rights of defence, as a component of the right to effective judicial protection within the meaning of the second subparagraph of Article 19(1) TEU. More specifically, that court refers to the breach of the principle of equality of arms and of the adversarial principle, and of the right to be heard.

138. As regards the right to be heard, it should be noted that that right guarantees every person the opportunity to make known his or her views effectively during any procedure capable of resulting in an administrative decision liable to affect his or her interests adversely. (77) Moreover, the Court has held that it would be incompatible with that right if a judicial decision were founded on facts and documents of which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views. (78)

139. Thus, a national provision such as Article 13(3) of the LOA is incompatible with the right to be heard if the party who has brought the action in the public interest has not had an opportunity to examine facts and documents on which the decision exonerating natural and legal persons from liability in respect of public funds is based, and therefore has not been able to state his or her views on those facts and documents.

140. As regards the principle of equality of arms, that principle implies that each party must be afforded a reasonable opportunity to present his or her case, including evidence, under conditions that do not place that party at a substantial disadvantage vis-à-vis his or her opponent. That principle thus guarantees the equality of rights and obligations of those parties as regards, in particular, the rules that govern the bringing of evidence and the adversarial hearing before the competent court. (79)

141. As regards the adversarial principle, it entails, as a rule, that the parties to proceedings have a right to be given the opportunity to comment on the facts and documents on which a judicial decision will be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law raised by that court of its own motion on which it intends to base its decision. In order to satisfy the requirements associated with the right to a fair trial, it is important for the parties to be able to debate and be heard on the matters of fact and of law which will determine the outcome of the proceedings. (80)

142. A provision such as Article 13(3) of the LOA, which requires national courts to hear only the public sector entities adversely affected by the loss of public funds linked to amnestied facts and the State Counsel’s Office, to the exclusion of the parties who brought the action in the public interest, is incompatible with the principle of equality of arms and the adversarial principle in so far as it prevents those parties from engaging in an adversarial debate on the matters of fact and law which are decisive for the outcome of the proceedings.

143. It is for the referring court, which alone has jurisdiction to interpret national law, to determine whether, even if the party who brought the action in the public interest does not appear in the wording of Article 13(13) of the LOA, that provision must nevertheless be interpreted as meaning that it has a right to be heard. (81)

144. The Spanish Government’s argument based on the nature of the action at issue cannot in any way invalidate the conclusion which I have reached. In its written observations, that government submits that the regulation of an actio popularis, such as that exercised in the present case, falls within the exclusive competence of the Member States, subject to compliance with the principles of equivalence and effectiveness. Thus, there is no principle or fundamental right, in particular in EU law, requiring that the party who has brought that action in the public interest be heard before the adoption of a decision closing the proceedings. In my view, there is no need to point out that that competence, although exclusive to the Member States, must nevertheless be exercised in a manner consistent with EU law, and more specifically with the requirements arising from the right to be heard and the principle of equality of arms and the adversarial principle , as summarised in the preceding points of this Opinion.

145. As regards the second part of that question, it should be noted that the legal mechanism criticised by the referring court appears to be inherent in any amnesty. Where it is established that the conduct in question falls within the scope of the amnesty, the court before which the action was brought may not proceed with the examination of the case before it. It must adopt a decision closing the procedure so that the case will be removed from the list. (82)

146. Assuming that the referring court thus expresses doubts as to the compatibility of Article 13(3) of the LOA with the rights of the defence, in so far as it does not provide that the defendants in the main proceedings may waive the benefit of the amnesty, it is sufficient to note that that right does not appear to require the courts to grant those parties such a waiver.

147. In the light of those considerations, with regard to the first part of the seventh question, I suggest that the Court’s answer should be that the second subparagraph of Article 19(1) TEU precludes a national provision such as Article 13(3) of the LOA, in so far as that provision requires national courts, before giving a decision exonerating natural or legal persons from liability, to hear only the public sector entities adversely affected by the loss of public funds linked to the amnestied facts and the State Counsel’s Office, to the exclusion of the parties who brought the action in the public interest.

148. As regards the second part of that question, I propose that the answer should be that the second subparagraph of Article 19(1) TEU does not preclude a national provision such as Article 13(3) of the LOA, in so far as that provision requires national courts to adopt a decision exonerating natural and legal persons from liability in respect of public funds without allowing those courts the possibility of assessing the evidence in order to determine whether those persons committed the acts for which their liability in respect of public funds is sought.

(4)    The sixth and eighth questions

149. By its sixth question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU precludes a national provision, such as Article 8(3) of the LOA, which provides for the mandatory lifting of interim measures granted by courts at the stage of the pre-trial procedure or the proceedings at first instance.

150. By its eighth question, the referring court seeks to ascertain, in essence, whether Article 2 and the second subparagraph of Article 19(1) TEU, Article 47 of the Charter, Article 267 TFEU and the first paragraph of Article 23 of Protocol (No 3) on the Statute of the Court of Justice of the European Union preclude national provisions, such as Article 8(3), Article 10 and Article 13(3) of the LOA, in so far as those provisions deprive the answer to any question referred for a preliminary ruling of practical effect, in breach of the principles of the primacy and direct effect of EU law.

151. It is clear from the explanations provided by the referring court with regard to the sixth question that the compatibility of the mandatory lifting of the interim measures with EU law is regarded as problematic vis-à-vis the preliminary ruling procedure. Consequently, it seems to me that that question is ‘absorbed’ by the eighth question, which is broader in scope than that question.

152. In my view, the latter question must nevertheless be clarified by being reformulated.

153. As regards the national provisions referred to therein, it should be noted that Article 8(3) of the LOA provides for the lifting of the interim measures ordered at the stage of the pre-trial procedure or the proceedings at first instance. As stated earlier, the second subparagraph of Article 10(2) of that law provides that decisions on the application of the amnesty must be taken within a maximum period of two months, whereas Article 13(3) of that law provides that, after hearing the State Counsel’s Office and the public entities adversely affected, the TCU must issue a decision exonerating the persons in question from their liability in respect of public funds, provided that those entities do not object.

154. In the view of the referring court, the combined application of those provisions could have the effect that that court is obliged to adopt a decision exempting liability in respect of public funds and to lift the interim measures before the Court of Justice gives its preliminary ruling, where appropriate. That can be inferred, according to the referring court, from the tenth and eleventh paragraphs of Section V of the preamble to the LOA, which require judges to ‘lift immediately the adopted … measures restricting rights, even in the event of a possible stay of those proceedings’ (tenth paragraph), without the formal precaution that ‘that provision is consistent with the … reference for a preliminary ruling referred to in Article 267 [TFEU]’ (eleventh paragraph) being sufficient to ensure that the proceedings are stayed in the event of a reference for a preliminary ruling being made. Those doubts are raised in order to ensure the effectiveness of the final decision which, where appropriate, will be given by the Court in response to the questions referred for a preliminary ruling in the order for reference.

155. The eighth question must therefore be understood, in my view, as meaning that the referring court asks whether the second subparagraph of Article 19(1) TEU, Article 267 TFEU and the first paragraph of Article 23 of Protocol (No 3) on the Statute of the Court of Justice of the European Union preclude national provisions such as Article 8(3), Article 10 and Article 13(3) of the LOA, in so far as those provisions require national courts to adopt a decision exempting liability in respect of public funds and to lift interim measures within a maximum period of two months, even if the Court of Justice, hearing a request for a preliminary ruling, has not yet given its decision.

156. I would point out, at the outset, that according to settled case-law, Article 267 TFEU sets up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, which has the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties. Thus, a judgment delivered in those proceedings is binding on the national court as to the interpretation of EU law for the purpose of resolving the dispute before it. (83)

157. Article 23 of the Statute of the Court of Justice of the European Union provides that, in cases dealt with under the preliminary ruling procedure, the decision of the national court or tribunal by which it makes a reference to the Court of Justice is to stay the proceedings at national level. (84)

158. In its written observations, the Commission stresses that, even though the second subparagraph of Article 10(2) of the LOA does not expressly exclude the option for the national court to suspend the two-month period during the period in which the Court examines the request for a preliminary ruling, the relevant national legislative context, characterised by the repeal of Article 43a of the LEC, suggests that it is not recognised as having that option. If that were the case, it is clear that such a rule would not be compatible with the provisions of EU law referred to in the preceding points of this Opinion. An obligation imposed by law on national courts to adopt a decision applying an amnesty (with the effects of res judicata) within a mandatory period of two months, and which prevents the suspension of that period in the event that the national court makes a request for a preliminary ruling, would not allow that court to comply with the decision delivered by the Court of Justice at the end of the preliminary ruling procedure, thereby depriving that procedure of any practical effect.

159. As regards the mandatory lifting of the interim measures previously ordered, provided for in Article 8(3) of the LOA, I must acknowledge that a reading of the tenth and eleventh paragraphs of Section V of the preamble to that law leads to the conclusion that that law requires the lifting of those interim measures, even in the event that the national proceedings are suspended as a result of a request for a preliminary ruling being made.

160. In that regard, it is sufficient to note that, according to settled case-law, the full effectiveness of EU law requires that a national court hearing a dispute governed by EU law must be able to grant interim relief in order to ensure the full effectiveness of the judgment to be given. If a national court, having stayed proceedings pending the reply by the Court of Justice to the question referred to it for a preliminary ruling, were not able to grant interim relief until it delivered its judgment following the reply given by the Court of Justice, the effectiveness of the system established by Article 267 TFEU would be impaired. (85) It follows that, where it considers it necessary, the national court must be able to adopt or, as the case may be, maintain interim measures pending delivery of its decision following the answer of the Court of Justice to its request for a preliminary ruling.

161. It should be added that the need to allow national courts to comply with judgments delivered by the Court following a preliminary ruling procedure also falls within the requirement of judicial independence arising from the second subparagraph of Article 19(1) TEU. According to the case-law of the Court, the power to do everything necessary, when applying EU law in accordance with that decision, to disregard national rules or a national practice which might prevent EU rules from having full force and effect is an integral part of the role of a court of the European Union which falls to the national court responsible for applying, within its jurisdiction, the EU rules, and therefore the exercise of that power constitutes a guarantee that is essential to judicial independence. (86)

162. Lastly, I note that the Spanish Government submits that the referring court should interpret the national provisions concerned in compliance with Article 267 TFEU, so that, where a reference for a preliminary ruling is made, the proceedings may be stayed and the interim measures maintained for as long as the suspension and those measures are necessary to ensure the effectiveness of the answer that the Court of Justice will provide. It is for the referring court to determine whether such an interpretation in conformity with EU law is conceivable.

163. In the light of the foregoing, I propose that the Court answer the sixth and eighth questions, as reformulated, that the second subparagraph of Article 19(1) TEU, Article 267 TFEU and the first paragraph of Article 23 of Protocol (No 3) on the Statute of the Court of Justice of the European Union preclude national provisions such as Article 8(3), Article 10 and Article 13(3) of the LOA, in so far as those provisions require national courts to adopt a decision exempting liability in respect of public funds and to lift the interim measures ordered at an earlier stage of the proceedings within a maximum period of two months, even if the Court of Justice, hearing a request for a preliminary ruling, has not yet given its decision.

V.      Conclusion

164. In the light of all of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal de Cuentas (Court of Auditors, Spain) as follows:

(1)      Article 325 TFEU

must be interpreted as meaning that it does not preclude the extinction of liability provided for by Ley Orgánica 1/2024 de amnistía para la normalización institucional, política y social en Cataluña (Organic Law No 1/2024 on amnesty for institutional, political and social normalisation in Catalonia) of 10 June 2024 for non-criminal acts affecting the financial interests of the European Union, such as acts relating to public funds, in the absence of a direct link between those acts and the reduction, actual or potential, in the revenue made available to the EU budget.

(2)      The second subparagraph of Article 19(1) TEU

must be interpreted as meaning that it precludes a national provision such as the second subparagraph of Article 10(2) of Organic Law No 1/2024 of 10 June 2024, according to which any decision relating to the application of the amnesty in a given case must be adopted within a maximum period of two months, where that period of a mandatory nature prevents the national court from adopting the investigative measures necessary for determining whether the assets affected by the acts giving rise to liability in respect of the public funds under examination constitute EU funds.

(3)      The second subparagraph of Article 19(1) TEU

must be interpreted as meaning that:

–        it precludes a national provision such as Article 13(3) of Organic Law No 1/2024 of 10 June 2024, in so far as that provision requires national courts, before giving a decision exonerating natural or legal persons from liability, to hear only the public sector entities adversely affected by the loss of public funds linked to the amnestied facts and the State Counsel’s Office, to the exclusion of the parties who brought the action in the public interest,

–        it does not preclude a national provision such as Article 13(3) of Organic Law No 1/2024 of 10 June 2024, in so far as that provision requires national courts to adopt a decision exonerating natural and legal persons from liability in respect of public funds without allowing those courts the possibility of assessing the evidence in order to determine whether those persons committed the acts for which their liability in respect of public funds is sought.

(4)      The second subparagraph of Article 19(1) TEU, Article 267 TFEU and the first paragraph of Article 23 of Protocol (No 3) on the Statute of the Court of Justice of the European Union,

must be interpreted as meaning that they preclude national provisions such as Article 8(3), Article 10 and Article 13(3) of Organic Law No 1/2024 of 10 June 2024, in so far as those provisions require national courts to adopt a decision exempting liability in respect of public funds and to lift interim measures ordered at an earlier stage of the proceedings within a maximum period of two months, even if the Court of Justice, hearing a request for a preliminary ruling, has not yet given its decision.

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1      Original language: French.

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2      See Donnedieu de Vabres, H., Traité de droit criminel et de législation pénale comparée, Librairie du Recueil Sirey, Paris, 1947, 3rd ed., pp. 550 to 560, Nos 977 to 992, in particular p. 550, No 977.

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3      That term is formed, like the term ‘amnesty’, of the prefix ἀ- (without) and of μνήμη (mnêmê), which in Greek means ‘memory’ or ‘recollection’.

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4      See the definition of ‘amnesty’ on the Oxford Constitutional Law platform available at the following address: https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e199.

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5      For an extensive historical elucidation of amnesty, see the Opinion which I deliver today in Case C‑666/24, Associació Catalana de Víctimes de Organitzacions Terroristes (ACVOT).

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6      See Beccaria, C., Dei delitti e delle pene, Livorno, 1764, Chapter XLVI entitled ‘Pardons’, in particular the following passage: ‘if it is considered that clemency, a virtue which belongs to the legislature and not to the executor of laws, ought to shine in the code and be banished from judgements; if it held that in showing mankind pardoned crimes, and that punishment is not a necessary consequence thereof, one nourishes hopes of impunity and is thus the cause of their belief that every act of punishment inflicted is one of violence and not of justice, why, then, would one wish the sovereign to grant clemency to criminals?’ (passage translated [into French] by Chaillou de Lisy, M., in Beccaria, C., Traité des délits et des peines, Paris, 1773, available at the following address: https://perso.unifr.ch/derechopenal/assets/files/obrasjuridicas/oj_20100907_01.pdf).

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7      See Hugo, V., Actes et paroles. Depuis l’exil. 1871 – 1876, Hetzel, Paris, Vol. 6, Chapter XXXII entitled ‘Amnesty in the Senate’, Speech by Victor Hugo, session of Monday 22 May 1876, pp. 154 to 169, in particular the following passage: ‘Sirs, at times of discord, justice is invoked by all parties. She belongs to no one. She recognises only herself. She is divinely blind to human passions. She is the guardian of all and the servant of none. Justice does not take a side in civil wars but she is not unaware of them and she does intervene in them. And do you know when she arrives? Afterwards. She allows the special courts to do their work and, when they have finished, she begins. It is then that she changes her name and goes by clemency’ (p. 157).

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8      BOE No 141 of 11 June 2024, p. 67764.

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9      BOE No 311 of 29 December 1978, p. 29313.

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10      Judgment 137/2025 of the Tribunal Constitucional (Constitutional Court), sitting in plenary session (BOE No 183 of 31 July 2025, p. 103781 (ES:TC:2025:137)).

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11      BOE No 121 of 21 May 1982, p. 13290.

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12      BOE No 84 of 7 April 1988, p. 10459.

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13      BOE No 157 of 2 July 1985, p. 20632.

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14      BOE No 7 of 8 January 2000, p. 575.

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15      This is a procedure for determining the liability of persons who, for the position they hold, manage public funds in the event of an unjustified debit balance of an account, or where there is a cash deficit or no justification for the state of the accounts they manage.

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16      OJ 1995 L 312, p. 1.

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17      See judgment of 1 August 2025, Daka and Others (C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23, EU:C:2025:592, paragraph 53 and the case-law cited).

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18      See judgment of 21 January 2020, Banco de Santander (C‑274/14, ‘the judgment in Banco de Santander’, EU:C:2020:17, paragraphs 61 and 62 and the case-law cited).

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19      See Article 26(1) and (2) of the LOTCU.

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20      See, to that effect, judgment in Banco de Santander (paragraphs 72 to 77).

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21      In the judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 93), the Court has held that the purpose of amnesty ‘is generally intended to decriminalise the acts which it covers, with the consequence that the offence can no longer be prosecuted and, if a sentence has already been handed down, its execution will be brought to an end’.

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22      Council Framework Decision of 13 June 2002 (OJ 2002 L 190, p. 1).

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23      Directive of the European Parliament and of the Council of 13 December 2011 (OJ 2011 L 338, p. 2).

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24      Council Regulation of 12 October 2017 (OJ 2017 L 283, p. 1).

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25      It should be noted, in that regard, that the Court has already stated that, ‘by defining the procedures laid down by Regulation 2017/1939, the EU legislature intended to establish a mechanism ensuring a degree of efficiency of cross-border investigations conducted by the EPPO at least as high as that resulting from the application of the procedures laid down under the system of judicial cooperation in criminal matters between the Member States which is based on the principles of mutual trust and mutual recognition’ (see judgment of 21 December 2023, G.K. and Others (EPPO) (C‑281/22, EU:C:2023:1018, paragraph 67)).

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26      See Article 11(1) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16); Article 13(1) of Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ 2006 L 328, p. 59); Article 19(1) of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27), and Article 19(1) of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).

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27      Judgment of 16 December 2021 (C‑203/20, ‘the judgment in AB’, EU:C:2021:1016).

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28      As enshrined in Article 50 of the Charter.

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29      Judgment in AB (paragraphs 40 to 42).

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30      Judgment in AB (paragraphs 74 and 75).

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31      Judgment of 17 July 2008, Commission v Italy (C‑132/06, EU:C:2008:412).

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32      Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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33      Although the referring court also refers to Article 4(3) TEU, I am of the view that the Court’s answer may refer only to Article 325 TFEU. As the Court stated in the judgment of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud) (C‑213/19, EU:C:2022:167, paragraph 261), ‘as regards Member States’ obligations to counter any fraud or other illegal activities that may affect the financial interests of the European Union, Article 325(3) TFEU is a specific manifestation of the general principle of sincere cooperation laid down in Article 4(3) TEU’. The latter provision does not therefore require a separate examination from that carried out under Article 325 TFEU.

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34      In my view, Regulation No 2988/95, also relied on by the referring court, is not applicable in the present case. Under Article 1(2) of that regulation, the measures and penalties provided for therein apply only to irregularities resulting from an act or omission by an ‘economic operator’. It appears from the order for reference that the defendants in the main proceedings are not ‘economic operators’ within the meaning of that regulation.

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35      Judgment of 2 May 2018, Scialdone (C‑574/15, EU:C:2018:295, paragraph 45 and the case-law cited).

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36      Judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, ‘the judgment in Euro Box’, EU:C:2021:1034, paragraph 183).

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37      Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).

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38      See judgment in Euro Box (paragraphs 188 to 190).

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39      Judgment of 8 June 2023 (C‑545/21, EU:C:2023:451).

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40      Council Regulation of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

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41      See judgment of 8 June 2023, ANAS (C‑545/21, EU:C:2023:451, paragraphs 38 and 39).

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42      Council Decision of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17).

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43      Judgments of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraph 32), and of 5 June 2018, Kolev and Others (C‑612/15, ‘the judgment in Kolev’, EU:C:2018:392, paragraph 52).

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44      See Article 2(1)(a) and (b) of Decision 2007/436.

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45      See judgment in Kolev (paragraph 51), and judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraph 31).

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46      See judgment in Euro Box (paragraph 187).

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47      In that regard, it should be borne in mind that, in the absence, in the Treaty, of a more precise definition of the territory falling within the sovereignty of each Member State, it is for each Member State to determine the extent and limits of its own territory, in accordance with the rules of public international law. See, to that effect, judgment of 1 August 2022, Navitours (C‑294/21, EU:C:2022:608, paragraph 38). The case which gave rise to that judgment concerned the Moselle, a river which – unusually – has the status of ‘condominium’. That status dates back to Article 25 of the Final Act of the Vienna Congress of 9 June 1815, which provides that, in addition to the Moselle, the Sûre and the Our, which form the border, will jointly belong to the two neighbouring powers. That provision was confirmed and set out in detail in Article 27 of the Frontier Treaty between the Kingdom of the Netherlands and the Kingdom of Prussia, concluded in Aachen on 26 June 1816, and in Article 30 of the Frontier Treaty concluded between the same States in Cleves on 7 October 1816 (see, in that regard, Caflisch, L., ‘Règles générales du droit des cours d’eaux internationaux’, The Hague Academy Collected Courses Online/Recueil des cours de l’Académie de La Haye en ligne, Vol. 219, 1989, pp. 9 to 225, in particular pp. 67 and 68).

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48      Judgment of 27 February 2018 (C‑64/16, ‘the judgment in ASJP’, EU:C:2018:117).

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49      See judgment in ASJP (paragraph 37).

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50      See judgment of 27 February 2025, Sinalov (C‑16/24, EU:C:2025:116, paragraph 36).

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51      See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 263).

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52      Judgment of 24 June 2019 (C‑619/18, EU:C:2019:531, paragraph 52).

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53      Opinion of Advocate General Bobek in joined cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 146). That relatively high substantive threshold is the systemic nature of the infringement, as I will explain in point 121 below.

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54      See judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge) (C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 48 and the case-law cited).

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55      See judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland) (C‑181/21 and C‑269/21, EU:C:2024:1, paragraphs 64 and 65 and the case-law cited).

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56      See, inter alia, judgment of 28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence) (C‑432/22, ‘the judgment in PT’, EU:C:2024:987, paragraph 64).

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57      See judgment of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, inter alia paragraph 42).

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58      Judgment in ASJP (paragraphs 32 and 35).

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59      See judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 143).

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60      See judgments of 20 April 2021, Repubblika (C‑896/19, ‘the judgment in Repubblika’, EU:C:2021:311, paragraph 52), and of 1 August 2025, Royal Football Club Seraing (C‑600/23, EU:C:2025:617, paragraph 73).

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61      See judgment in Repubblika (paragraph 45), and of 1 August 2025, Royal Football Club Seraing (C‑600/23, EU:C:2025:617, paragraph 72).

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62      Judgement of 15 July 2021 (C‑791/19, EU:C:2021:596, paragraph 203).

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63      Paragraph 70 of that judgment.

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64      Judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 213).

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65      Judgment in PT (paragraphs 71 and 72).

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66      See, to that effect, judgment in Repubblika (paragraphs 39, 42 and 43).

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67      See, in that regard, Leloup, M., ‘The Untapped Potential of the Systemic Criterion in the ECJ’s Case Law on Judicial Independence’, German Law Journal, Cambridge University Press, Toronto, Vol. 24, No 6, 2023, pp. 995 to 1010.

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68      Opinion of Advocate General Bobek in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 148).

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69      See, in particular, judgment in Repubblika (paragraph 54).

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70      See judgment of 3 July 2025, Lita and Jeszek (C‑646/23 and C‑661/23, EU:C:2025:519, paragraph 62 and the case-law cited).

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71      See, inter alia, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 197).

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72      Venice Commission, Opinions No 1167/2023 and No 1168/2023 of 18 March 2024 on the rule of law requirements of amnesties, with particular reference to the parliamentary bill of Spain ‘on the organic law on amnesty for the institutional, political and social normalisation of Catalonia’ (CDL-AD(2024)003, point 81).

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73      Venice Commission, Opinion No 710/2012 of 11 March 2013 on the Provisions relating to Political Prisoners in the Amnesty Law of Georgia (CDL-AD(2013)009, points 43 to 46).

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74      In both cases, the judges concerned will be penalised in accordance with Article 420 of that law.

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75      See also Venice Commission, Opinions No 1167/2023 and No 1168/2023 of 18 March 2024 on the rule of law requirements of amnesties, with particular reference to the parliamentary bill of Spain ‘on the organic law on amnesty for the institutional, political and social normalisation of Catalonia’ (CDL-AD(2024)003, point 105), in which, with regard to the draft law, the Venice Commission states as follows: ‘Article 10 of the amnesty bill provides for a preferential and urgent processing of the requests for application of the law on amnesty The relevant decisions shall be adopted “as a matter of priority and urgency”, “within a period of two months”. The Commission welcomes in this respect that there is no consequence, including in terms of disciplinary sanctions, for the non-respect of this time limit …’.

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76      Although the referring court also refers to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), I would point out that, according to settled case-law, EU law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law (see, inter alia, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 44). It follows that the Court has no jurisdiction to interpret the provisions of the ECHR.

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77      See judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289, paragraph 53 and the case-law cited).

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78      See judgment of 26 September 2024, Energotehnica (C‑792/22, EU:C:2024:788, paragraph 54 and the case-law cited).

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79      See judgment of 30 January 2024, Agentsia ‘Patna infrastruktura’ (European funding of road infrastructure) (C‑471/22, EU:C:2024:99, paragraph 48 and the case-law cited).

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80      See, inter alia, judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 41), and of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 62).

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81      I would note that, in the recent judgment concerning the constitutionality of particular provisions of the LOA, the Tribunal Constitucional (Constitutional Court) held that, if it were understood as meaning that the court is not required to hear the party who brought the action in the public interest before taking the decision on the exemption from liability referred to therein, Article 13(3) of the LOA would be incompatible with the right of defence as enshrined in Article 24 of the Constitution. However, it refrained from declaring it unconstitutional in so far as an interpretation consistent with the Constitution is, according to that court, nevertheless possible. See judgment 137/2025 of the Tribunal Constitucional (Constitutional Court), sitting in plenary session (BOE No 183 of 31 July 2025, p. 103781 (ES:TC:2025:137)).

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82      See Merle, R. and Vitu, A., Traité de droit criminel, Tome II, Procédure pénale, 5th ed., Éditions Cujas, Paris, 2001.

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83      See judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraphs 274 and 275 and the case-law cited).

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84      See judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 29 and the case-law cited).

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85      See judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 142 and the case-law cited).

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86      See judgment in Euro Box (paragraph 257).