In the current legal landscape, legal professionals, particularly members of the judiciary, find themselves amidst a perplexing array of news related to the intricacies of the European preliminary ruling in our legal system. This is especially pertinent concerning the proposed Organic Law of Amnesty aimed at institutional, political, and social normalization in Catalonia. In this exploration, we aim to shed light on the convoluted debate triggered by Junts’ proposal to repeal the recent reform of the Civil Procedure Law, introduced less than a month ago by Royal Decree-Law 6/2023, dated December 19, 2023, concerning measures in public justice services, public administration, local governance, and patronage.
This debate has been marred by confusion in some forums, conflating the reform’s actual purpose with the origin of the reform itself.
Setting aside the surreal manner in which a government, having recently approved a reform, is now willing to repeal it through parliamentary means, the primary focus here is to dispel any ambiguity that such a procedure might raise within the judiciary. It is crucial to clarify that the intended repeal’s objective is to maximize the judicial, effective, and immediate application of the Amnesty Law. However, such attempts to fortify the law are futile, as Spanish judges cannot be hindered from suspending processes involving the application of the law, either through the activation of a preliminary ruling or other legal mechanisms developed by the Court of Justice of the European Union (CJEU) over the years.
Let’s delve into the details to comprehend the nuances surrounding the recent amendment introduced by Royal Decree-Law 6/2023. The 43 bis article of the Civil Procedure Law, added in December, exclusively addresses the suspension of a process when a Spanish judge, facing a pending preliminary ruling before the CJEU related to the subject matter of the ongoing litigation, deems the CJEU’s decision necessary to resolve their case.
This clarification is crucial because the 43 bis 2 LEC does not pertain to the suspension of a process in which the judge decides to activate the preliminary ruling under Article 267 TFEU. It does not address such a scenario because it is already clearly defined by Union Law. The activation of a preliminary ruling leads to the suspension of the “a quo” process, as stipulated by Union Law. Consequently, no national legislation can, in principle, modify, let alone limit or prevent, such suspensive effects.
The purpose of the 43 bis 2 LEC was to empower the judge to suspend the process based on a pending preliminary ruling before the CJEU, raised by another judge, either national or from another EU member state. This judge, finding the resolution necessary to decide their ongoing process, could “motivatedly” order suspension “through an order, following a joint ten-day hearing of the parties and, where legally applicable, the Public Prosecutor’s Office.” The article specifies that there is recourse against an order denying the request through a remedy, and an order allowing suspension is subject to an appeal. The suspension, if granted, is lifted by the Judicial Secretary once the CJEU’s resolution is validated or, in other cases, by the court that ordered the suspension.
This amendment clarified a somewhat inconclusive jurisprudence trend. The Supreme Court’s First Chamber had shown reluctance at times toward suspending a process when a community preliminary question was being processed. On the contrary, there were instances where the court granted suspension while awaiting the preliminary ruling. The Third Chamber had also been favorable to suspension, even decreeing it “prudently” on its own initiative, aside from the specific context in which the CJEU was called upon to rule.
In conclusion, the repeal of Article 43 bis LEC would not prevent the suspension of processes linked to the proposed Amnesty Law in Catalonia. The context of uncertainty regarding its compatibility with Union Law persists, and the activation of the preliminary ruling, or the potential endorsement of the modus operandi established by Article 43 bis LEC, could lead to the suspension of processes. Furthermore, the possibility of judicial rulings directly disregarding the Amnesty Law without a preliminary question cannot be ruled out, grounded in the conviction that the law would violate Union Law. The intricate interplay between national legislation and European Union jurisprudence adds a layer of complexity to the evolving legal scenario.