The European Commission (EC) has reconfirmed what many already knew: the raising of a preliminary question on any subject, too about the future amnesty lawbefore the Court of Justice of the European Union (CJEU) has suspensive effects in all cases. And this cannot be discussed or corrected by any national rule because this is what the Luxembourg court operates. This has been reiterated by the European Commissioner for Justice, Didier Reyndersin a letter sent to MEP Adrián Vázquez, who chairs the Legal Affairs Committee of the European Parliament. In the letter, I asked him about the effects that it has for a national judge to raise a preliminary question on the norm that is currently being processed in the Senate and that arose as a result of the investiture pacts between PSOE, Junts and ERC to forgive crimes committed in the framework of the Catalan “procés”.
The response, formulated on behalf of the European Commission (EC), leaves no room for doubt and In just four paragraphs it paints a pretty clear picture.. On the one hand, the commissioner assures that article 23 of the statute that governs the functioning of the CJEU establishes that, “in cases substantiated by means of the preliminary ruling procedure, the resolution of the national court by which it submits a matter to the Court of Justice suspends the national procedure». Furthermore, it points out that the document “Recommendations to national courts, regarding the raising of preliminary questions” also reiterates the effect associated with the presentation of this type of legal initiatives: any magistrate who has doubts and raises a question, It should not adopt any type of additional measure, but rather wait for the CJEU's response. And the judicial procedure would continue as it was.
On the other hand, the letter to which LA RAZÓN has had access goes further and indicates that “the jurisprudence of the Court of Justice has also indicated that the preliminary ruling procedure requires suspending the procedure pending before the referring court awaiting the response of the Court of Justice.
And finally, the document sent by the Commissioner of Justice points out that “it follows from the principle of primacy that the requirement of Union Law to suspend the national procedure until the Court of Justice has ruled on the request for a preliminary ruling applies regardless of what national legislation establishes». And repeat, to clear up any questions, that “the national court must leave inapplicable any national legislation that does not respect this principle”.
This measure, within the reach of any magistrate, is a setback for the law agreed with the independence supporters. The CJEU's resolution periods are usually long, often far exceeding a year or a year and a half. And Reynders's answer poses an additional difficulty, since invalidates one of the amendments included in the legal textwhich indicates that they must be lifted immediately “the restrictive measures of rights that have been adopted, even in those cases in which there is a possible suspension of the judicial procedure”. Without directly mentioning the preliminary question, it alludes to this suspensive effect that has been ratified by Europe.
“The national court must leave inapplicable any national legislation that does not respect this principle”
The truth is The suspensive effects of preliminary ruling questions are not unknown to Spanish judges. and have been raised in numerous controversial issues. This is what has happened with several causes related, for example, to abusive mortgage clauses or with matters related to the interim staff of public administrations: the procedure is paralyzed. Along these lines, the normal thing is that the application of the future amnesty law, in the procedure that the magistrate who raises the preliminary question is judging, would also be suspended.
According to legal sources consulted by this newspaper, once the rule comes into force, there will be different ways for judges to act. There will be those who apply the law, without further ado; but also those who file appeals before the Constitutional Court (TC) and those who choose to go to the Luxembourg court to clarify whether the amnesty is compatible with European Union Law and, if so, how the law should be interpreted.
In Spain they have emerged several legal forums in which the preliminary question has been insisted upon as the appropriate tool that could shed light on the actions that judges can promote when they have to apply the law that erases the crimes of the independence movement. One of the first in which this possibility was raised was held in October, when the negotiation of the grace measure had emerged. In the session “The amnesty law under the prism of the legal profession”, which took place at the headquarters of the Illustrious Bar Association of Madrid (ICAM), some experts such as Ignacio Ulloa, former judge of the General Court of the European Union (TGUE) , pointed out that preliminary questions could be a way to explore. «We have to see which are the areas in which the European Union (EU) has competence and in which European law would prevail»he said then.
The thesis that the amnesty is not only unconstitutional, but that it is contrary to the Law of the European Union has also been maintained since the Civic Platform for Judicial Independence (PCIJ)which has gone further and has published a guide to clear up all doubts about the approach of unconstitutionality issues and prejudicial issues.
Keys
- Any Spanish judge who has doubts about how to apply the future amnesty law or who believes that it may be incompatible with European Law can raise a preliminary ruling.
- If a magistrate who must decide on amnesty for a crime related to the “procés” raises a preliminary question before the CJEU, the case is paralyzed.
- This means that the judge is not obliged to lift the precautionary measures that he has previously imposed until the CJEU resolves the issue and issues a ruling.
- The latest amendments to the amnesty bill sought to “shield” its application, invalidating suspensive measures, but Reynders' letter is clear: a preliminary ruling always suspends the case.