The amnesty encountered the first obstacles to its implementation just minutes after it came into effect. The Court of Auditors is the first body in charge of the application of the amnesty, which has openly raised the possibility of referring a preliminary ruling to the Court of Justice of the European Union (CJEU), due to the doubts that , according to the supervisory body, the rule generates before EU law.
In an order, the Court of Auditors (an administrative and not a criminal body) has given ten days to the Public Prosecutor's Office and the defense of the twenty sovereign leaders prosecuted in the case regarding the costs of the trial and the foreign action of the Generalitat – among them Carles Puigdemont, Oriol Junqueras or Artur Mas – to rule on the submission of a preliminary ruling.
In the same resolution, the supervisory body also suspends the deadline for issuing a ruling on the accounting cause of the legal costs until it decides whether it has expressed its doubts about the amnesty to the CJEU.
According to the Court of Auditors, there are several articles of the amnesty law on which the CJEU can request “interpretation”. The rule of criminal oblivion of the trial, the supervisory body argues in a press release, could affect the “fight against fraud and all illegal activities detrimental to the EU's financial interests”, the “principle of sincere cooperation” , on the 'principles of equality and non-discrimination' and the 'principles of legal certainty and legitimate expectations' and the 'principle of the rule of law'.
Any judge in charge of applying the amnesty who has doubts about its constitutionality or its compliance with EU law can raise a question of unconstitutionality before the Constitutional Court or refer a preliminary ruling to the CJEU. This suspends the application of the rule and pending penalties. On average, the CJEU takes sixteen months to make a preliminary ruling.
The publication of the amnesty law in the Government Gazette (BOE) this Tuesday led to a stream of judicial resolutions to implement the rule. As the law provides, the judges' first step is to ask the Public Prosecution Service and the rest of the parties in a case about the application of the rule. This is how they did it Judge Pablo Llarena at the Supreme Court and the Catalan TSJbut, unlike the Court, they have not expressly expressed the intention to refer the rule to the CJEU.
Those who did anticipate their intention to apply to the CJEU for an end to the amnesty were the four prosecutors in the Supreme Court trial, the same ones who accused the former council members of rebellion. In a report that has not yet been presentedthe prosecutors believed that the Supreme Court should ask the CJEU whether it is compatible with EU law to negotiate amnesty with anyone who “benefits” from it.