Opinion of the Advocate General — ECLI:EU:C:2025:889
Date: 2025-11-13
Language of the case: Spanish

Summary C-523/24 – 1 
Case C-523/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
30 July 2024 
Referring court: 
Tribunal de Cuentas (Spain) 
Date of the decision to refer: 
29 July 2024 
Applicants: 
Sociedad Civil Catalana, Asociación Cívica y Cultural (SCC) 
Ministerio Fiscal 
Defendants: 
RAS 
AAT 
IGA 
ARMG 
ANMG 
NMF 
ARM 
LBC 
RFB 
FHM 
MMT 
COT, as heiress of MOQ 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C523/24 
 
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MOP 
ASD 
JTN 
JNB 
TPR 
OJV 
RRR 
DBC 
JGV 
EAC 
EH 
MKEK 
SML 
AVO 
MAB 
JMSI 
LPG 
CPO 
CPC 
ACO 
AMC 
ACJ 
FGS 
  
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Subject matter of the main proceedings 
Proceedings for recovery of public funds concerning (i) the facts relating to the 
expenses incurred in carrying out the illegal referendum on the independence of 
Catalonia on 1 October 2017 and (ii) the facts relating to the expenses incurred in 
carrying out the ‘external action’ of the Generalitat de Catalunya (Regional 
Government of Catalonia, Spain) during the financial years 2011 to 2017, namely 
promoting the independence of Catalonia outside Spain during the 
abovementioned time period. 
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation (Article 267 TFEU) 
Examination of the compatibility of certain provisions of Ley Orgánica 1/2024, de 
10 de junio, de amnistía para la normalización institucional, política y social en 
Cataluña (Organic Law No 1/2024 of 10 June 2024 on amnesty for institutional, 
political and social normalisation in Catalonia; ‘the LOA’) with Union law. 
Questions referred for a preliminary ruling 
Question 1. Should Council Regulation (EC, Euratom) No 2988/95 of 
18 December 1995 on the protection of the European Communities’ financial 
interests 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 accounting liability established in Article 1(1)(a), (b) and (c), (2), 
(3) and (4) and Article 2(e) of the LOA, taking into account the circumstance 
that the alleged accounting liability 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)? 
Question 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 
Articles 2 and 19(1)(2) TEU and Article 47 of the Charter of Fundamental Rights 
of the European Union (‘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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C523/24 
 
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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? 
Question 3. Should Article 325 TFEU and Council Regulation (EC, Euratom) 
No 2988/95 of 18 December 1995 on the protection of the European 
Communities’ financial interests, in conjunction with Article 47 of the Charter and 
Article 6 of the European Convention on Human Rights (‘the ECHR’), 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 
Ministerio Fiscal (the Public Prosecutor’s Office)) to raise an objection to the 
finding in the proceedings at first instance that there is no accounting 
liability, merely requiring that the injured public sector entities (in these 
accounting proceedings, the Generalitat de Catalunya, which did not even appear 
in the proceedings to bring the accounting action and was therefore deemed to 
have withdrawn) have not objected? 
Question 4. Should the principles of legal certainty and legitimate expectations, in 
conjunction with Article 325 TFEU and Council Regulation No 2988/95 of 
18 December 1995, be interpreted as incompatible with Article 1(1)(a), (b) and (c) 
of the LOA, in conjunction with the provisions of paragraphs (2), (3) and (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 accounting liability arises 
from actions affecting the financial interests of the European Union that were 
not in fact those envisaged within the scope of the LOA? 
Question 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), (b) and (c) of 
the LOA, in conjunction with the provisions of paragraphs (2), (3) and (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 
accounting liability, in turn, that circumstance would also give rise to 
discriminatory or unequal situations in respect of persons who have been 
convicted of accounting liability 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? 
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Question 6. Should Articles 2 and 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 Ley 7/1988, de 5 de abril, de Funcionamiento del Tribunal de Cuentas 
(Law No 7/1988 of 5 April 1988 on the functioning of the Court of Auditors; 
‘the LFTCU’), the general rules laid down in Ley 1/2000, de 7 de enero, de 
Enjuiciamiento Civil (Law No 1/2000 of 7 January 2000 on civil procedure; 
‘the LEC’) covering interim measures are applied? 
Question 7. Should Articles 2 and 19(1)(2) TEU, Article 47 of the Charter and 
Article 6 of the ECHR be interpreted as meaning that they are not compatible with 
the provisions of Article 13(3) of the LOA (finding of no accounting liability 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? 
Question 8. Should Articles 2 and 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 
Articles 8(3), 10 and 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? 
Provisions of European Union law relied on 
– Treaty on European Union, Articles 2 (rule of law), 4(3) (sincere cooperation) 
and 19(1), second subparagraph (effective judicial protection). 
– Treaty on the Functioning of the European Union, Article 325 (protection of 
the Union’s financial interests). 
– The Charter of Fundamental Rights of the European Union, Articles 20 
(equality before the law), 21 (non-discrimination) and 47 (right to an effective 
remedy and to a fair trial), in conjunction with Article 6(3) TEU and Article 6 
of the European Convention on Human Rights. 
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– Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the 
protection of the European Communities’ financial interests, Articles 1, 2, 4 
and 8. 
– Statute of the Court of Justice of the European Union, Article 23, subparagraph 
1 (suspension of national proceedings). 
– Recommendations of the Court of Justice of the European Union to national 
courts and tribunals in relation to the initiation of preliminary ruling 
proceedings, paragraph 25 (suspension of national proceedings). 
Provisions of national law relied on 
Organic Law No 1/2024 of 10 June 2024 on amnesty for institutional, political 
and social normalisation in Catalonia (‘the LOA’). 
(i) The preamble of the LOA reads as follows: 
‘V 
[fifth paragraph] In effect, the principle of equality does not imply the need to 
give universal scope to the effects of the amnesty, but rather that there should be 
no discrimination between persons who fall under the assumption enabling 
application of the legislation (in this case, the acts that determine different types of 
liability in relation to the independence process). […] This organic law therefore 
observes the principle of equality in so far as the scope is identified in an objective 
and justified manner, in accordance with constitutional values, and without 
arbitrarily excluding situations that are substantially identical. 
[…] 
[eighth and ninth paragraphs] The proportionality of the law derives from the 
statement of the specific list of acts that have been declared or are defined as 
crimes and conducts to be amnestied and the necessary link between those crimes 
and conducts and the acts carried out in a period of time delimited by the law. 
This avoids a generic, imprecise determination, thus preventing the amnesty from 
covering other types of acts not directly connected to the independence process 
and its consequences, where the exoneration of such acts would have no place 
within the grounds on which this measure is based. All of this is connected to the 
principle that the penalty must be appropriate to the act and to the purpose of the 
legislation, which is tied to the mandate relating to optimisation of citizens rights 
derived from Article 9 of the Constitución (the Spanish Constitution) and intended 
to apply to all public authorities, but particularly to the legislature […] 
[tenth paragraph] On the other hand, the character of a special law that creates an 
exemption from the application of existing rules based on the facts in a given 
context in the general interest should mean that the courts that were hearing the 
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proceedings at the time when this law was approved should immediately lift the 
measures restricting rights that had been adopted, even in those cases where there 
is a possible suspension of court proceedings. This is because any limitation on 
the exercise of rights and freedoms must always observe the requirements laid 
down in the European Convention for the Protection of Human Rights and 
Fundamental Freedoms, the Charter of Fundamental Rights of the European 
Union and the Spanish Constitution, guaranteeing a solid legal basis for 
restrictions on rights and freedoms. 
[eleventh paragraph] This provision is consistent with the regime established for 
questions of unconstitutionality under Article 163 of the Constitution and those 
referred for preliminary rulings under Article 267 of the Treaty on the Functioning 
of the European Union. Furthermore, it should be borne in mind that the possible 
use of the mechanisms regulated in these precepts does not affect the validity or 
effectiveness of the laws. 
[…] 
[fourteenth paragraph] In conclusion, this law seeks to provide legal certainty, 
respect for the principle of legality and a legal framework for the impartial 
protection of fundamental rights, taking into account the recommendations of the 
Venice Commission which, in its 2013 opinion, emphasised the importance of 
maintaining a clear distinction between the legislative and judicial powers in the 
implementation of amnesty, ensuring respect for judicial autonomy and 
democratic principles […] 
VI 
[fourth paragraph] This approach, which is in any case abstract, since it in no way 
implies an assessment of the existence of facts likely to be included in each of 
these exclusions, is essential in accordance with the conditions stated by the 
Council of Europe’s Venice Commission in its opinion of 11 March 2013, 
adopted at its 94th plenary meeting. Thus, it is the responsibility of the legislature 
to establish the criteria used to determine who may benefit from the amnesty, and 
it is the responsibility of the judiciary to identify the specific persons covered by 
the scope established by the legislature. […] 
[ninth paragraph] In accordance with the guidelines of the Venice Commission, a 
precise and detailed definition of acts eligible for amnesty has been established in 
order to ensure legal certainty and equality before the law. This is crucial, in 
particular when dealing with embezzlement offences, in enabling a clear 
differentiation between actions that can be amnestied and acts of corruption, to 
which such a measure is not applicable. 
[…]’. 
(ii) Article 1 of the LOA, which is entitled ‘Objective scope’, states as follows: 
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‘1. The following acts giving rise to criminal, administrative or accounting 
liability, performed in the context of the referendums held in Catalonia on 
9 November 2014 and 1 October 2017, and activities involved in the preparation 
or consequences of those acts, are hereby amnestied, provided that they were 
performed between 1 November 2011 and 13 November 2023, as well as 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 
referendums or were carried out after those referendums took place: 
(a) Acts committed with the intention of claiming, promoting or procuring the 
secession or independence of Catalonia, as well as those that have contributed to 
the achievement of such aims […] 
This will also include those actions carried out, in a personal or institutional 
capacity, with the aim of disseminating the pro-independence project, gathering 
information and acquiring knowledge about similar experiences or getting other 
public or private entities to lend their support to the achievement of Catalan 
independence. 
Likewise, acts directly or indirectly linked to the so-called pro-independence 
process in Catalonia or to its leaders within the framework of that process, and 
carried out by those who have manifestly or demonstrably provided assistance, 
cooperation, advice of any kind, representation, protection or security to those 
responsible for the conduct referred to in the first paragraph of this article, or have 
obtained information to this end, will also be understood to be included. 
(b) Acts committed with the intention of calling, promoting or procuring the 
holding of the referendums 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 referendums have been declared unlawful, as well as 
those who contributed to the achievement of those events […] 
(c) Acts of disobedience, whatever their nature, public disorder, assaults on 
authority, its agents and public officials or acts of resistance carried out with the 
aim of enabling the holding of the popular referendums referred to in (b) of this 
article or the consequences of such acts, as well as any other acts defined as 
criminal offences carried out with the same intention. 
In any case, this will include […] any other acts consisting in the approval or 
execution of laws, regulations or resolutions by public authorities or officials that 
have been carried out for the purpose of enabling, facilitating or assisting with the 
holding of the referendums referred to in (b) of this article […] 
2. The acts giving rise to criminal, administrative or accounting liability 
amnestied under paragraph 1 of this article will be amnestied irrespective of their 
level of implementation, including preparatory acts, and irrespective of the form 
of involvement (perpetration or participation). 
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3. Acts that were commenced before 1 November 2011 will be deemed to fall 
within the scope of this law only if they were completed after that date. 
Acts that were commenced before 13 November 2023 will also be deemed to fall 
within the scope of this law even if they were completed after that date. 
4. The application of public funds for the purposes described in (a) and (b) will 
not be considered enrichment if, irrespective of whether such use complies with 
the law, it was not intended for the purpose of obtaining a personal gain of a 
financial nature’. 
(iii) Article 2 of the LOA, which is entitled ‘Exclusions’, stipulates as follows: 
‘In any case, the following are excluded from application of the amnesty 
described in Article 1: 
[…] 
(e) Acts that constitute criminal offences affecting the financial interests of the 
European Union. 
[…]’. 
iv) Article 8 of the LOA, which is entitled ‘Effects on civil and accounting 
liability’, states the following in paragraph 3: 
‘The interim measures agreed in pre-trial proceedings or those at first instance laid 
down in Articles 47 and 67 of Law No 7/1988 of 5 April 1988 on the functioning 
of the Court of Auditors (‘the LFTCU’) will be lifted’. 
(v) Article 10 of the LOA, entitled ‘Preferential and urgent handling’, reads as 
follows: 
‘Application of the amnesty in each case will be the responsibility of the judicial, 
administrative or accounting bodies determined in this law, which will 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 the judicial or 
accounting proceedings in question. 
Decisions will be delivered within a maximum period of two months, without 
prejudice to subsequent appeals, which will not have suspensory effect’. 
(vi) Article 13 of the LOA, entitled ‘Accounting proceedings’, states as follows 
in paragraph 3: 
‘If the proceedings to determine accounting liability brought before the Court of 
Auditors are at the first-instance or appeal stage, the competent bodies within that 
Court, having heard the Public Prosecutor’s Office and the public sector bodies 
adversely affected by the loss of public funds or effects related to the amnestied 
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situations, will issue a decision finding that the defendant natural or legal persons 
have no accounting liability, where those public sector bodies have not objected’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Proceedings for recovery of public funds No B-180/21 involving the Sector 
Público Autonómico (Generalitat de Catalunya) (Autonomous Community Public 
Sector, Regional Government of Catalonia, Spain) are pending before 
Departamento 2.º de la Sección de Enjuiciamiento del Tribunal de Cuentas 
(Department 2 of the Prosecution section of the Court of Auditors; ‘the TCU’). 
These proceedings concern both (i) the facts relating to the expenses incurred in 
carrying out the illegal referendum on the independence of Catalonia on 1 October 
2017 and (ii) the facts relating to the expenses incurred in carrying out the 
‘external action’ of the Regional Government of Catalonia during the financial 
years 2011 to 2017, namely promoting the independence of Catalonia outside 
Spain during the abovementioned time period. 
2 Certain decisions on interim measures have been taken in these proceedings. On 
the one hand, a decision has been issued in which the amount of 
EUR 4 146 274.97 is deemed to be guaranteed, in relation to the total amount of 
the alleged accounting liability for the facts relating to the expenses incurred in 
carrying out the illegal referendum on the independence of Catalonia. On the other 
hand, a decision has been issued in which the amount of EUR 5 422 411.10 is 
deemed to be guaranteed, in relation to the total amount of the alleged accounting 
liability for the facts relating to the expenses incurred in carrying out the ‘external 
action’ of the Regional Government of Catalonia during the financial years 2011 
to 2017. 
3 Once the pre-trial proceedings had been completed, the TCU undertook the 
disclosure of the proceedings to the parties with legal standing to bring actions for 
accounting liability in the present accounting proceedings, so that they could file 
applications within a period of 20 days. Specifically, disclosure was granted to the 
following: the organisation Sociedad Civil Catalana, Asociación Cívica y Cultural 
([Spanish unionist organisation opposed to Catalonian independence]; ‘SCC’), the 
Abogacía del Estado (State Legal Department), the Regional Government of 
Catalonia, the Consejo de Diplomacia Pública de Cataluña (Public Diplomacy 
Council of Catalonia; ‘the DIPLOCAT’) and the organisation Abogados Catalanes 
por la Constitución. 
4 On 17 February 2022, SCC filed an application seeking a declaration of the 
existence of a loss to the public assets of the Regional Government of Catalonia 
for a total amount of EUR 5 309 807.02, and a declaration that a number of 
persons are directly liable in accounting terms for that loss, in the specific 
amounts set out in the application. 
5 As they did not file applications within the established time limit, the State Legal 
Department, the Regional Government of Catalonia, DIPLOCAT and the 
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organisation Abogados Catalanes por la Constitución were deemed to have 
withdrawn from the accounting proceedings. 
6 The application filed by SCC was then disclosed to the Public Prosecutor’s Office 
so that it could file its own application or join the application already filed. The 
defendants were also notified for information purposes, and expressly advised that 
they would be summonsed at a later date to reply to the application. 
7 The Public Prosecutor’s Office filed an application seeking a declaration of the 
existence of a loss to the public assets of the Regional Government of Catalonia 
for a total amount of EUR 3 429 342.43, and a declaration that a number of 
persons are directly liable in accounting terms for that loss, in the specific 
amounts set out in the application. 
8 The application filed by the Public Prosecutor’s Office was allowed to proceed 
and notification was provided to the defendants, who were given twenty days to 
respond to that application and to the application filed by SCC. The parties were 
also granted a common time limit of five days to submit their arguments on the 
amount of the proceedings. 
9 The defendants lodged their responses to the application within the prescribed 
time limit. 
10 By court order, the amount of the proceedings was set as EUR 5 309 807.02. A 
pre-trial hearing was then held. At that hearing, the applicants were deemed to 
have withdrawn their claims relating to the costs of running the CIVISME 
publicity campaign, totalling EUR 336 143.34. 
11 By order of 29 May 2024, the proceedings were declared ready for judgment. 
12 On 11 June 2024, the LOA was published in the Spanish Official Gazette. 
Article 3 of that law provides for the declaration of amnesty and the consequent 
extinguishing of accounting liability – as well as criminal and administrative 
liability – deriving from the acts listed in Article 1 (‘Objective scope’) and which 
are not expressly included in Article 2 (‘Exclusions’), with the effects and 
according to the procedure regulated in Titles II and III, respectively. 
13 Consequently, at the present procedural stage, it is necessary to examine whether, 
in relation to the facts prosecuted in the present proceedings for recovery of public 
funds No B-180/21, the requirements established in the LOA are met in terms of 
enabling a declaration that the alleged accounting liability claimed in the 
applications filed by the Public Prosecutor and SCC has been extinguished. 
Specifically, in relation to that examination, the TCU has expressed doubts as to 
the compatibility of certain articles of the LOA with the interpretation that the 
Court of Justice has consistently given to certain rules and principles of European 
Union law. 
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Essential arguments of the parties in the main proceedings 
14 The applicants have raised different arguments. The SCC has asked that the same 
questions set out in the present decision be referred to the Court of Justice for a 
preliminary ruling. Conversely, the Public Prosecutor’s Office has asserted that it 
is not appropriate to refer those questions for a preliminary ruling. 
15 With regard to the defendants, with the exception of one among their number who 
has not made any submissions to the court, all of them have objected to these 
questions being referred for a preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
The status of the TCU as a court or tribunal for the purposes of Article 267 TFEU 
and the legal proceedings before it 
16 The TCU is a constitutional body entrusted with two kinds of functions. First, it is 
responsible for auditing the economic and financial activities of the entire public 
sector, which is an administrative function (Article 136(1) of the Constitution). 
Second, it is vested with a judicial function, involving the prosecution of any 
accounting liability that might arise for the managers of the assets of public 
entities and the recipients of public subsidies and aid (Article 136(2), second 
paragraph, of the Constitution, Articles 2 and 15 to 18 of the Ley Orgánica 
2/1982, de 12 de mayo, del Tribunal de Cuentas (Organic Law No 2/1982 of 
12 May 1982 on the Court of Auditors; ‘the LOTCU’) and Article 49 of the 
LFTCU). 
17 With regard to the elements or requirements that generate accounting liability, 
these are derived from the content of the LOTCU (Articles 15(1), 38(1), 42(1) and 
43) and the LFTCU (Articles 49(1) and 72) and have been formally identified by 
the case-law of the Tribunal Supremo (Supreme Court, Spain) (judgment of 
6 October 2004, ROJ STS 6273/2004) and in the case-law established by the TCU 
(judgment No 1/2004 of 4 February 2004) as follows: 
– Existence of a loss to the assets of a public entity, which must be real, 
economically assessable and individually assignable to a specific public asset 
(Article 59(1), second paragraph, of the LFTCU). 
– Action, whether by act or omission, attributable to a manager of the assets of 
a public body or to the recipient of a subsidy or public aid payment. 
– Causal link between the abovementioned action and the loss caused to the 
assets of the public entity concerned. 
– Infringement of applicable accounting and budgetary rules governing the 
public sector. 
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– Existence of a ‘subjective element’ in the conduct of the party causing the 
loss, namely the fact that that party acted with intent or, at the very least, through 
fault or gross negligence. 
18 On the other hand, as regards the effects of accounting liability, once this has been 
declared by final judgment, the party declared ‘liable in accounting terms’ has an 
obligation to repay the amount of the loss caused to public assets to the public 
entity affected. 
19 Consequently, the legal nature of accounting liability is established as a type of 
non-contractual civil liability, which does not have a punitive or sanctioning 
purpose, and is intended to repair the damage and loss caused to the assets of a 
public entity. Therefore, the claims of the applicants in the present proceedings for 
recovery of public funds No B-180/21 correspond to the bringing of a common 
action for non-contractual civil liability (namely, one derived from the lex aquilia 
de damno under Roman law, which is established in the civil law systems of 
continental Europe with the purpose of repairing the damnum iniuria datum) in 
respect of the public assets of the Regional Government of Catalonia. 
20 In accordance with the above and on the basis of current legislation, in a situation 
involving a single series of facts, accounting proceedings are compatible with 
criminal proceedings, such that, where these same facts are declared as 
constituting a crime, the criminal court will abstain from hearing the case in 
relation to accounting liability arising from those facts and will communicate to 
the TCU the necessary background information to enable the TCU to determine 
the amount of loss caused to public assets (Article 18 of the LOTCU and 
Article 49(3) of the LFTCU). 
21 In terms of the procedure followed before the TCU, it should be noted that 
‘proceedings for recovery of public funds’ take the form of court proceedings 
initiated by an application to the court, in which the procedures for civil 
proceedings are applied, depending on the amount at issue in the case, in 
accordance with the provisions of the LEC. Proceedings to determine accounting 
liability can only be initiated by means of an application to the court filed by 
parties that have standing to bring such proceedings, in accordance with the 
provisions laid down in the legislation governing accounting proceedings. 
22 So, moving on to an examination of the specific subject matter of the present 
proceedings for recovery of public funds No B-180/21, this action concerns, first, 
the expenses incurred in preparing for and holding the ‘independence referendum’ 
that took place in the Autonomous Community of Catalonia on 1 October 2017, 
despite the fact that this referendum had previously been suspended by order of 
the Tribunal Constitucional (Constitutional Court, Spain) of 7 September 2017, 
which was subsequently confirmed by the Constitutional Court’s judgment 
No 122/2017 of 31 October 2017, which declared the referendum to be 
unconstitutional, and, second, the expenses incurred in developing the ‘external 
action’ of the Regional Government of Catalonia during the financial years 2011 
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to 2017, namely the expenses incurred by the Regional Government itself, the 
‘delegations of the Generalitat abroad’ and DIPLOCAT for unknown purposes 
(namely without any justification being provided) or intended to promote the 
independence of Catalonia outside Spain, during the abovementioned period of 
time. 
23 In short, the purpose of the present accounting proceedings is essentially to 
determine whether it can be held, during the period in question (2011 to 2017), 
once the actions of the defendants in relation to the two categories of expenditure 
described in the previous paragraph have been analysed, that the requirements 
giving rise to accounting liability have been met and, if so, to determine the 
amount that the defendants must repay to the public finances of the Regional 
Government of Catalonia. 
24 With regard to the position of the TCU, some of the defendants have argued that it 
does not have the status of a ‘court or tribunal’. However, in the light of the settled 
case-law of the Court of Justice, it is clear that such a plea of inadmissibility 
raised by those defendants is unfounded. 
25 Indeed, according to the settled case-law of the Court of Justice, in order to 
determine whether a body making a reference is a ‘court or tribunal’ within the 
meaning of Article 267 TFEU, which is a question governed by EU law alone, the 
Court takes account of a number of factors, such as, inter alia, whether the body is 
established by law, whether it is permanent, whether its jurisdiction is 
compulsory, whether its procedure is inter partes, whether it applies rules of law 
and whether it is independent [judgment of 21 December 2023, Krajowa Rada 
Sądownictwa (Continued holding of a judicial office), C-718/21, 
EU:C:2023:1015, paragraph 40]. 
26 In addition, the established case-law of the Court of Justice has established that a 
national court may refer a question to the Court only if there is a case pending 
before it and if it is called upon to give judgment in proceedings intended to lead 
to a decision of a judicial nature. Therefore, it is appropriate to determine whether 
a body may refer a case to the Court on the basis of criteria relating both to the 
constitution of that body and to its function (judgment of 3 May 2022, CityRail, 
C-453/20, EU:C:2022:341, paragraphs 42 and 43). 
27 In terms of the criteria relating to its constitution, in view of the legal regime 
applicable to the TCU’s judicial function, it is unquestionable that the TCU meets 
all the criteria relating to having been established by law, being permanent, having 
a jurisdiction that is compulsory and having a procedure that is inter partes in 
relation to the accounting proceedings before it. 
28 In particular, the strictly judicial and inter partes nature of the present proceedings 
for recovery of public funds No B 180/21 is fully established. With regard to the 
specific procedures that have been carried out during the present proceedings for 
recovery of public funds No B 180/21, all the procedures provided for in the LEC 
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for ordinary proceedings (Articles 399 to 436) have been applied. The TCU has 
applied the various judicial and inter parties procedures laid down in the LEC for 
this type of civil proceeding. The procedures applied include (but are not limited 
to) the following: lodging of the application by SCC, lodging of the application by 
the Public Prosecutor’s Office, lodging of the defence by the defendants, 
procedure for setting the amount, completion of proceedings for interim relief 
(which ended with a public hearing), completion of a pre-trial hearing (which took 
the form of a public hearing), completion of legal interest proceedings, inter partes 
resolution of various motions presented by the parties in procedural matters, 
taking of witness evidence (which also took place in a public hearing), filing of 
written submissions, etc. 
29 As far as the criteria relating to the function of the court or tribunal are concerned, 
these refer to the concept of independence, which, in turn, according to the settled 
case-law of the Court of Justice, involves two aspects. The first aspect, which is 
external, requires that the body referring the question exercise its functions wholly 
autonomously, without being subject to any hierarchical constraint or 
subordinated to any other body and without taking orders or instructions from any 
source whatsoever, being thus protected against external interventions or pressure 
liable to impair the independent judgement of its members in relation to the 
disputes before them and to influence their decisions. In that regard, it should be 
noted that the irremovability of the members of the body concerned constitutes a 
guarantee that is essential to judicial independence in that it serves to protect the 
persons who have the task of adjudicating in a dispute (judgment of 21 January 
2020, Banco de Santander, C274/14, EU:C:2020:17, paragraphs 57 and 58). 
30 In terms of the second aspect, this is internal and is linked to impartiality, and thus 
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. That 
aspect requires objectivity and the absence of any interest in the outcome of the 
proceedings apart from the strict application of the rule of law. According to the 
settled case-law of the Court of Justice, the concept of ‘independence’ requires 
above all that the body in question act as a third party in relation to the authority 
that adopted the contested decision (judgment of 21 January 2020, Banco de 
Santander, C274/14, EU:C:2020:17, paragraphs 61 and 62). 
31 So, as with the criteria relating to its constitution, it is unquestionable that, in the 
present case, the TCU fully meets the requirement of independence. 
32 Indeed, from an external point of view, Article 136(3) of the Constitution provides 
that ‘the members of the [TCU] shall enjoy the same independence and 
irremovability and shall be subject to the same incompatibilities as Judges’ (in the 
same sense, see Article 30(2) of the LOTCU). The members of the TCU are 
elected for a period of nine years (Article 30(1) of the LOTCU) and can only be 
removed from their posts for certain defined reasons that are specifically laid 
down in Article 36 of the LOTCU. It must therefore be concluded that the 
members of the TCU who perform the judicial function, for the duration of their 
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terms of office, exercise that judicial function independently and irremovably, 
without being subject to any hierarchical or subordinate relationship with third 
parties, and are thus fully protected from any kind of external interference or 
pressure. 
33 From an internal point of view, it is also undisputed that, in the exercise of its 
judicial function in the present proceedings for recovery of public funds No B-
180/21, the TCU has the status of a third party in relation to the applicants and 
defendants and in relation to the public body alleged to have suffered loss, and it 
therefore exercises its judicial function with absolute objectivity and impartiality 
towards the parties to the dispute and their respective interests in relation to the 
subject matter of that dispute. 
34 By way of illustration, it should be noted that the Court of Justice has already 
admitted a reference for a preliminary ruling from a court of auditors of a Member 
State (Greece) in a case in which that court was also exercising judicial functions 
(judgment of 13 July 2023, Achilleion, C313/22, EU:C:2023:574). It has also 
admitted questions referred for preliminary rulings by administrative bodies in 
cases where they also perform judicial functions (judgment of 6 October 2015, 
Consorci Sanitari del Maresme, C203/14, EU:C:2015:664, reference for a 
preliminary ruling from the Tribunal Català de Contractes del Sector Públic 
(Catalan Public Sector Contracts Board, Spain)). 
Questions referred for a preliminary ruling 
First question referred 
35 Considering the Court of Justice’s established interpretation of the principle of 
effective and deterrent prevention of fraud and any other illegal activity affecting 
the financial interests of the European Union (Article 325 TFEU and Council 
Regulation No 2988/95) and the principle of sincere cooperation (Article 4(3) 
TEU), the TCU has doubts as to the compatibility – with those principles – of the 
rules established in certain provisions of the LOA [Article 1(1)(a), (b) and (c), in 
conjunction with paragraphs (2), (3) and (4) of that article, and Article 2(e)]. 
36 Article 325(1) TFEU states that ‘the Union and the Member States shall counter 
fraud and any other illegal activities affecting the financial interests of the Union 
through measures to be taken in accordance with this Article, which shall act as a 
deterrent and be such as to afford effective protection in the Member States, and 
in all the Union's institutions, bodies, offices and agencies’. 
37 In relation to this obligation of protection imposed by the TFEU on the Union and 
the Member States, Article 2(e) of the LOA expressly excludes from its scope 
‘acts that constitute criminal offences affecting the financial interests of the 
European Union’. Therefore, a contrario sensu, it would appear that the Spanish 
legislature, by limiting that exclusion to criminal acts, considers acts affecting the 
Union’s financial interests, such as the acts giving rise to accounting liability 
SOCIEDAD CIVIL CATALANA 
 
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regulated in Article 1(1)(a), (b) and (c), in conjunction with paragraphs (2), (3) 
and (4) of that article, to be amnestiable. 
38 The rules established in those provisions of the LOA could be incompatible with 
the case-law of the Court of Justice, which has consistently given a broad 
interpretation to the concept of protection of the Union’s financial interests. In this 
regard, reference can be made to the judgment of 21 December 2021, Euro Box 
Promotion and Others (C357/19, C379/19, C547/19, C811/19 and C840/19, 
EU:C:2021: 1034), paragraphs 184 to 187, concerning certain acquittals handed 
down by the Romanian courts in 2017 in relation to corruption offences (some of 
which did not involve European funds and did not involve enrichment for the 
accused) committed by senior Romanian government officials in the years 2010 to 
2012. 
39 Indeed, this judgment consolidates the abovementioned effective protection or 
‘broad interpretation’ of the protection of the Union’s financial interests and 
develops the idea that the concept of ‘illegal activity’ cannot be interpreted 
restrictively (paragraph 184), such that it covers, in a broad sense, the prevention 
of fraud and corruption – and thus that it should be understood as including any 
type of illegal action that causes damage to public assets (such as both accounting 
liability and the offence of misappropriation of public funds), – and irrespective of 
the origin or intended use of the fraudulently used funds. On this point, it is stated 
(paragraph 187) that even irregularities having no specific financial impact may 
be seriously prejudicial to the financial interests of the European Union. The 
judgment concludes by stressing the idea that what is decisive for the Union is the 
prevention of impunity for fraud and corruption, which undermines citizens’ 
confidence in the institutional system of the Union and of the Member State 
(paragraph 193). 
40 This ‘broad interpretation’ of the protection of the Union’s financial interests has 
also been consolidated by the case-law of the Court of Justice in its rulings on aid 
from Union funds, which hold that the concept of ‘irregularity’ includes both 
actual and potential loss to the Union budget. Thus, the judgment of 8 June 2023, 
ANAS (C545/21, EU:C:2023:451), states in paragraphs 38 and 39 that, as regards 
the third condition necessary for the characterisation of an ‘irregularity’, that 
condition does not require the existence of a specific financial impact on the EU 
budget to be demonstrated. A failure to comply with the applicable rules 
constitutes an irregularity in so far as the possibility cannot be excluded that that 
failure will have an impact on the budget of the fund concerned. 
41 Consequently, in the present case, the alleged accounting liability that, if 
applicable, could be declared by final judgment as a result of the defendants’ 
participation in incurring the two categories of expenditure referred to in the 
applications to the court during the period in question (2011 to 2017) falls within 
that ‘broad interpretation’ of the protection of the Union’s financial interests, 
which has been upheld by the settled case-law of the Court of Justice, taking into 
account the following considerations. First, a declaration of accounting liability 
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would mean that, during the years 2011 to 2017, (illegal) acts of corruption were 
carried out, causing a loss to the public assets of the Regional Government of 
Catalonia. Second, we cannot exclude the possibility that those acts of corruption 
have created a risk or potential loss to the financial interests of the European 
Union, irrespective of the origin of the public funds used (whether from the 
budget of the Member State or from the budget of the Union) to carry out those 
acts. In this regard, it should be noted that, during the years 2011 to 2017, acts of 
corruption were allegedly carried out in order to procure the holding of illegal 
referendums in Catalonia and, in general, to promote the independence of 
Catalonia – thus the independence of a part of a Member State of the EU – and 
those acts ultimately culminated in the holding of the illegal referendum on 
1 October 2017 and the subsequent declaration of independence by Catalonia. 
There is no doubt that these (illegal) acts of corruption in the management of the 
public assets of the Regional Government of Catalonia generated a risk or 
potential loss to the Union’s budget, as they could have affected the revenue side 
of the budget, which is partially made up of contributions from the Member 
States. 
42 It should also be noted that the rules established in the abovementioned provisions 
of the LOA could also be incompatible with the interpretation of the principle of 
sincere cooperation. Once the EU has exercised its competence and, by virtue of 
that process, the rule of Union law in question has entered into force, a parliament 
of a Member State may not legislate either contrary to or below the level of 
protection established by the provisions of that rule of Union law, as this would 
result in a breach of the principle of sincere cooperation by undermining the 
effectiveness of Union law and its uniform application, as well as its primacy over 
the domestic law of the Member States. 
43 In relation to the facts at issue in the present proceedings for recovery of public 
funds No B-180/21, the abovementioned principle of sincere cooperation could 
have been infringed, since, prior to the entry into force of the LOA, the principle 
of the effective and deterrent prevention of fraud and any illegal activity affecting 
the financial interests of the European Union was already expressly regulated – 
and taken up by the legal systems of all the Member States – in the following 
legislative instruments of European Union law: the TFEU (Article 325), Council 
Regulation No 2988/95 and, in the area of criminal law, Directive (EU) 2017/1371 
of the European Parliament and of the Council of 5 July 2017 on the fight against 
fraud to the Union’s financial interests by means of criminal law. On this point, 
we can cite the judgment of 8 September 2015, Taricco and Others (C105/14, 
EU:C:2015:555, paragraph 52), which states that the provisions of Article 325(1) 
and (2) TFEU therefore have the effect, in their relationship with the domestic law 
of the Member States, of rendering automatically inapplicable, merely by their 
entering into force, any conflicting provision of national law. 
44 It must be concluded that the rules established in the abovementioned provisions 
of the LOA could also infringe the principle of sincere cooperation, since they 
could result in the extinguishing of the accounting liability arising from the illegal 
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management of the public assets of the Regional Government of Catalonia that, 
where applicable, could be declared based on the facts and events prosecuted in 
the present proceedings for recovery of public funds No B-180/21, which would 
affect the financial interests of the European Union, in accordance with the 
reasoning set out above. 
45 Furthermore, it should be pointed out that, at the present time, bearing in mind 
that one of the main objectives of European Union law is to prevent impunity for 
fraud and corruption, it seems very difficult to reconcile the effective achievement 
of that objective with the rules established in the abovementioned provisions of 
the LOA, which could, in fact, result in impunity for the accounting liability that, 
where applicable, could be declared based on the facts and events prosecuted in 
the present proceedings for recovery of public funds No B-180/21. 
46 Indeed, the rules established in the LOA seem to run counter to this objective of 
EU law concerning the prevention of impunity for fraud and corruption. As an 
incontrovertible fact supporting this assertion, and even though it is a rule that is 
not yet in force and concerns the specific field of criminal law, we should note the 
particularly striking wording of the European Parliament’s amendment 126 to 
Article 15 of the proposal for a directive of the European Parliament and of the 
Council on combating corruption (2023/0135 COD), replacing Council 
Framework Decision 2003/568/JHA and the Convention on the fight against 
corruption involving officials of the European Communities or officials of 
Member States of the European Union and amending Directive (EU) 2017/1371 
of the European Parliament and of the Council. The amendment states the 
following: ‘Member States shall take the necessary measures to prohibit any 
pardoning or amnesty of persons who have been held liable for any of the criminal 
offences referred to in Articles 7 to 14’. Consequently, if this Directive were 
already in force today, it would not have been possible for Spain to have approved 
the LOA. 
47 Finally, in relation to the accounting liability that, where applicable, could be 
declared based on the facts and events prosecuted in the present proceedings for 
recovery of public funds No B-180/21, and in accordance with the considerations 
stated above in relation to the legal nature of accounting liability (‘non-contractual 
civil liability for loss to public assets’), and the compatibility of that concept with 
the criminal proceedings for the purposes of simultaneous prosecution of the same 
facts, the following should be pointed out. First, a final judgement has already 
been handed down in the criminal proceedings in relation to the expenses related 
to ‘preparing for and holding the so-called independence referendum that took 
place on 1 October 2017’. Second, the criminal case is still pending before the 
Juzgados de Instrucción n.º 13 y n.º 18 de Barcelona (Courts of Preliminary 
Investigation, No 8 and No 13, Barcelona, Spain) in relation to the expenses 
incurred for the ‘development of the so-called external action of the Regional 
Government of Catalonia during the financial years 2011 to 2017’. 
 
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Second question referred 
48 On the basis of the above reasoning, and in relation to the alleged accounting 
liability that could be declared in the present proceedings for recovery of public 
funds No B-180/21, the TCU considers that the origin of the funds used for the 
two categories of expenditure mentioned above is irrelevant. 
49 However, if the Court of Justice were to resolve the first question referred by 
giving a ‘restrictive interpretation’ to the concept of protection of the Union’s 
financial interests and, consequently, were to hold that, for the purposes of 
considering that the Union’s financial interests are affected, it is necessary to 
prove that the funds used to incur that expenditure originated in the Union budget, 
the TCU considers that the provisions laid down in Article 10 of the LOA could 
also prove to be incompatible with the settled case-law of the Court of Justice on 
the interpretation of Article 2 and the second subparagraph of Article 19(1) TEU 
and of Article 47 of the Charter. 
50 Indeed, Article 10 of the LOA establishes a requirement for court proceedings to 
be summary and dealt with as a matter of priority, with a mandatory period of two 
months permitted for the delivery of a decision, against which only non-
suspensory appeals may be lodged. In relation to the above, it should be noted that 
no type of procedure for the taking of evidence has been proposed in the present 
accounting proceedings to determine the origin of the public funds used to incur 
the two categories of expenditure, namely to determine whether those public funds 
came from the Union budget or from the national budget (of the Spanish State or 
of the Autonomous Community of Catalonia). 
51 In this specific case, it would be appropriate and necessary to complete the 
abovementioned evidentiary measures at a later date to avoid creating a situation 
where it is impossible to conduct a suitable defence, which would mean that the 
provisions of Article 10 of the LOA (mandatory period of two months to reach a 
decision) could be incompatible with Article 47 of the Charter – which enshrines 
the right of every person to effective judicial protection and to a trial within ‘a 
reasonable time’ – and with the settled case-law of the Court of Justice – which 
prohibits judges from being subject to ‘external pressures’ in the exercise of the 
proper administration of justice. 
52 Furthermore, the TCU believes that Article 10 of the LOA could also be 
incompatible with Article 47 of the Charter, bearing in mind that, if the Court of 
Justice were to resolve the first question referred by adopting a ‘restrictive 
interpretation’ of the concept of protection of the Union’s financial interests, it 
would also be necessary and appropriate to carry out additional measures to take 
evidence in order to prove – in relation to the category of expenditure associated 
with developing the so-called external action of the Regional Government of 
Catalonia during the financial years 2011 to 2017 – that the public funds were 
actually used to incur that category of expenditure, and thus to determine whether 
those public funds were actually used to promote the independence of Catalonia 
SOCIEDAD CIVIL CATALANA 
 
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outside Spain during that time period. It should be borne in mind on this point 
that, according to Article 1 of the LOA, and without prejudice to the notable lack 
of technical precision in that provision (a matter that will be analysed later), the 
specific acts included within the scope of the LOA must be, in essence, solely 
those that were aimed at promoting the secession or independence of Catalonia, 
and those aimed at calling for and promoting the referendums held in Catalonia on 
9 November 2014 and 1 October 2017, and which were carried out within the time 
period specified in Article 1(3) of the LOA. 
53 Based on the above, the TCU believes that the mandatory deadline of two months 
is contrary to Article 2 and the second subparagraph of Article 19(1) TEU and to 
Article 47 of the Charter, since it is procedurally impossible to complete the 
necessary evidence-gathering measures in such a short period of time and because 
this deadline constitutes pressure applied to the TCU. 
Third question referred 
54 The TCU argues that Article 325 TFEU and Council Regulation No 2988/95 – as 
interpreted by the Court of Justice and in conjunction with Article 47 of the 
Charter and Article 6 of the ECHR – could also be incompatible with 
Article 13(3) in fine of the LOA (finding of no accounting liability in proceedings 
at first instance). According to that text, for the LOA to apply to the present 
proceedings for recovery of public funds No B-180/21, it is sufficient that the 
hearing required under that provision has been held and no objection has been 
raised by the Regional Government of Catalonia, as the injured public sector 
body. 
55 However, in those proceedings, it has only been the applicants – namely SCC and 
the Public Prosecutor’s Office – that have claimed that alleged accounting 
responsibility exists for (illegal) acts of corruption that have caused loss to the 
public assets of the Regional Government of Catalonia. 
56 Consequently, given that, for the purposes of reaching a final decision as to a 
declaration extinguishing accounting liability and closing the case, Article 13(3) 
in fine of the LOA only imposes a requirement that the public sector entities that 
have been injured – in this case, the Regional Government of Catalonia – do not 
object, but 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 case, SCC and the Public Prosecutor’s Office) to raise an objection, the 
TCU suggests that this provision of the LOA could be incompatible with 
European Union law. 
Fourth question referred 
57 With regard to the Court of Justice’s settled interpretation of the principles of 
legal certainty and legitimate expectations, the TCU has doubts as to the 
compatibility – with those principles – of the rules established in Article 1(1)(a), 
(b) and (c) of the LOA, read in conjunction with paragraphs (2), (3) and (4) of that 
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article, bearing in mind that, according to settled case-law (judgment of 
16 February 2022, Hungary v Parliament and Council, C156/21, EU: C:2022:97, 
paragraph 223), the principle of legal certainty requires, on the one hand, that the 
rules of law be clear and precise and, on the other, that their application be 
foreseeable for those subject to the law, in particular where they may have adverse 
consequences. More specifically, in order to meet the requirements of that 
principle, legislation must enable those concerned to know precisely the extent of 
the obligations imposed on them, and those persons must be able to ascertain 
unequivocally their rights and obligations and take steps accordingly. 
58 In relation to the question examined here, it should be noted that the Venice 
Commission issued an opinion on 18 March 2024 concerning ‘the rule of law 
requirements of amnesties with particular reference to the parliamentary bill “on 
the organic law on amnesty for the institutional, political and social normalisation 
of Catalonia”’. Paragraph 96 of that opinion concluded as follows: ‘the 
Commission recommends narrowing down and defining the material and temporal 
scope of the application of the amnesty in a more precise way, so as to make the 
effects of the law more foreseeable. As amnesty affects the value of res judicata, 
it must adhere to legal certainty, as otherwise it would undermine the public 
confidence in the observance and respect of the constitution and the law. The 
Commission stresses that the law will have to be interpreted and applied by the 
judges in each case to determine whether each case is eligible for the amnesty. 
The lack of clarity and determinacy of its scope of application carries the risk that 
a very large number of cases and controversies will arise about the correct 
application of the law. This in turns risks shifting the conflicts from the political to 
the judicial level. This result would not be coherent with the purpose of the 
amnesty as such’. 
59 Indeed, the definition of the scope of the LOA is remarkably vague. First, the 
wording of Article 1 does not define specific actions, but is, rather, indiscriminate 
and extremely broad, as it uses certain confusing expressions (‘the following acts 
[…] performed in the context of the referendums […] in the preparation or 
consequences of those acts, are hereby amnestied […] in relation to the so-called 
Catalan independence process, even if they are not related to the abovementioned 
referendums or were carried out after those referendums took place’). 
60 Furthermore, the definitions of the actions included in the scope of the text, which 
are contained in points (a), (b) and (c) of the abovementioned Article 1(1), are also 
excessively broad (‘… any other act …’), which does not contribute in any way to 
providing the assurance and legal certainty required by a legal rule and, especially, 
by an amnesty law, as noted in the abovementioned opinion from the Venice 
Commission. 
61 Article 1(2) of the LOA also extends the amnesty to ‘… irrespective of their level 
of implementation […] and irrespective of the form of […] participation’. 
Similarly, Article 1(3) of the LOA, which establishes the temporal scope, could 
not be more vague, stating the following: ‘Acts that were commenced before 
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1 November 2011 will be deemed to fall within the scope of this law only if they 
were completed after that date. Acts that were commenced before 13 November 
2023 will also be deemed to fall within the scope of this law even if they were 
completed after that date’. 
62 In terms of the facts at issue in these proceedings, the TCU asserts that this is 
incompatible with the Court of Justice’s settled interpretation of the principles of 
legal certainty and legitimate expectations, taking into account, first, the broad and 
imprecise nature of the definition of the actions giving rise to accounting liability 
subject to application of the LOA and, second, the fact that that broad and 
imprecise nature of the definition of the scope of the rule could result in cases 
where accounting liability is wrongly declared to have been extinguished by 
application of the LOA. This situation would arise in those cases in which the 
following two circumstances are present: on the one hand, if it cannot be proven 
beyond doubt that any of the items of expenditure included in the applicants’ 
submissions has been used for the actions falling within the scope of the LOA 
(precisely as a consequence of the abovementioned broad and imprecise definition 
of that scope) and, on the other hand, if, at the same time, it cannot be proven that, 
in relation to that item of expenditure, the manager of the assets of the Regional 
Government of Catalonia has used it for the purpose established by the applicable 
legal text. 
63 If both circumstances occur, which is perfectly plausible, a declaration of 
accounting liability could be appropriate (despite the application of the LOA), 
provided that the rest of the decisive requirements for such liability are met. The 
failure to sanction this accounting liability, which would occur precisely as a 
result of the broad and imprecise scope of the LOA, would result in a gap in the 
effective protection of the Union’s financial interests. 
Fifth question referred 
64 On a question closely related to the previous question, and in line with the Court 
of Justice’s settled interpretation of the principle of equality and the principle of 
non-discrimination, the TCU also has doubts as to whether the rule established in 
Article 1(1)(a), (b) and (c), in conjunction with the provisions of paragraphs (2), 
(3) and (4) of that article, and with the sections of the preamble to the LOA 
transcribed in this reference for a preliminary ruling, is compatible with those 
principles. 
65 According to the settled case-law of the Court of Justice, the principle of equal 
treatment is a general principle of EU law, enshrined in Article 20 of the Charter, 
of which the principle of non-discrimination laid down in Article 21(1) of the 
Charter is a particular expression (judgment of 5 July 2017, Fries, C190/16, 
EU:C:2017:513, paragraph 29). According to that established case-law, that 
general principle requires that comparable situations must not be treated 
differently and that different situations must not be treated in the same way unless 
such treatment is objectively justified. A difference in treatment is justified if it is 
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based on an objective and reasonable criterion, namely where the difference 
relates to a legally permitted aim pursued by the legislation in question, and it is 
proportionate to the aim pursued by the treatment (judgment of 9 March 2017, 
Milkova, C406/15, EU:C:2017:198, paragraph 55). 
66 In relation to the question examined here, reference should again be made to the 
abovementioned opinion from the Venice Commission, which analyses a range of 
issues, including the principle of equality before the law. The Venice 
Commission, having concluded in paragraph 80 that, in its view, ‘such [amnesty] 
decisions should be taken with an appropriately large qualified majority, which 
builds bridges across the national separation’, devotes paragraph 97 to analysing 
whether the abovementioned principle of equality before the law is respected in 
the rule established in the proposed Organic Law. In this regard, the Venice 
Commission concludes as follows: ‘as concerns equality in law, the Commission 
finds that if the link between “the consultations held in Catalonia on 9 November 
2014 and 1 October 2017, their preparation or their consequences” and the acts 
covered by the amnesty is not strong enough, amnesty could also cover many 
citizens who have committed ordinary crimes that have little or nothing to do with 
the social tensions that led to the amnesty law; this would make the justification 
for the special benefits questionable and would infringe the principle of equality in 
respect of those who have committed the same ordinary crimes for other reasons 
or during different periods, and do not benefit from the decriminalisation brought 
about by the amnesty. The Commission therefore reiterates its recommendation to 
narrow down and define in a more precise manner the scope of application of the 
amnesty. The Commission recalls that an amnesty is an impersonal measure 
applying to all persons or to a class of persons, and the criteria for its application 
should not be designed to cover specific individuals. The recent extension of the 
temporal scope of application of the amnesty by two months without any 
justification raises concerns in this regard’. 
67 With regard to the specific facts at issue in these proceedings, the TCU asserts that 
the Court of Justice’s settled interpretation of the principle of equality and the 
principle of non-discrimination is indeed incompatible with the rule established in 
Article 1(1)(a), (b) and (c), in conjunction with the provisions of paragraphs (2), 
(3) and (4) of that article, and with the sections of the preamble to the LOA 
transcribed in this reference for a preliminary ruling. 
68 Indeed, when analysing the possible justification for any of the expenditures 
detailed in the applicants’ submissions and, at the same time, examining whether 
the corresponding action should be understood as falling within the scope of the 
LOA, given the broad and imprecise nature of the definition of the actions 
determining accounting liability included within that scope, it could happen that 
instances of accounting liability are declared extinguished in respect of aims that 
are not actually those envisaged in the LOA (namely, those that are unequivocally 
not actions intended to promote the independence or secession of Catalonia or to 
procure the holding of the abovementioned referendums). 
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69 Consequently, the absence of an objective and reasonable criterion in the 
preamble to the LOA, for the purposes of adequately justifying the extinguishing 
of accounting liability for the actions described in Article 1(1)(a), (b) and (c), in 
conjunction with paragraphs (2), (3) and (4) of that article, means that the rule in 
question is discriminatory and creates a gap in the effective protection of the 
Union’s financial interests. It should be borne in mind on this point that, in all 
these cases, a breach of the general principles of equality and non-discrimination 
would occur with respect to those other cases prosecuted in accounting 
proceedings that 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, but where the managers of public assets have in fact 
been convicted of liability in accounting terms in other proceedings for recovery 
of public funds [for example, in proceedings for recovery of public funds No A-
47/18, Autonomous Community Public Sector [Financial Control Report of the 
Consorcio Centre d’Innovació del Transport – CENIT (Centre for Transport 
Innovation Consortium – CENIT)], as it has been proven that they carried out 
(illegal) acts of corruption damaging the assets of a public entity of the 
Autonomous Community of Catalonia and that the other elements determining 
accounting liability are also present. 
Sixth question referred 
70 In terms of the Court of Justice’s consolidated interpretation of the principle of the 
rule of law (Article 2 and the second subparagraph of Article 19(1) TEU, 
Article 47 of the Charter and Article 6 of the ECHR), the TCU doubts whether the 
rule established in Article 8(3) of the LOA (compulsory lifting of interim 
measures) is compatible with this principle. In the present proceedings, that 
provision results in the lifting of the interim measures in a mandatory, one-sided 
manner. 
71 With regard to the adoption of interim relief by a court lodging a request for a 
preliminary ruling, the judgment of 6 October 2021, W. Ż. (Chamber of 
Extraordinary Control and Public Affairs of the Supreme Court – Appointment), 
C487/19, EU:C:2021:798, paragraph 142, states that the full effectiveness of EU 
law requires that a national court seised of 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. The effectiveness of that system would also be 
compromised if the authority attaching to such interim relief could be disregarded, 
in particular, by an authority of the Member State in which those measures were 
adopted. 
72 Article 8(3) of the LOA is incompatible with the Court of Justice’s settled 
interpretation of the right to a fair trial and to effective judicial protection of the 
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rights of the parties, in that it prevents applicants and defendants from making any 
kind of submissions before the interim measures are lifted and also prevents the 
court from adopting any kind of decision on the possible continuation of 
safeguarding measures or, where appropriate, on the possible adjustment of such 
measures or their replacement by other less onerous measures, in accordance with 
the principle of proportionality. 
73 In short, since proceedings for recovery of public funds constitute a remedy 
established under national law in order to ensure the effective protection of the 
Union’s financial interests, Article 8(3) of the LOA is contrary to those provisions 
and principles of European Union law. 
Seventh question referred 
74 With regard also to the Court of Justice’s settled interpretation of the rule of law 
principle, the TCU has doubts as to whether Article 13(3) of the LOA (finding of 
no accounting liability in proceedings at first instance without hearing all parties 
to the accounting proceedings) is compatible with that principle. 
75 Before an acquittal decision is given, Article 13(3) of the LOA establishes an 
obligation for the court to hear only the Regional Government of Catalonia (the 
public sector entity allegedly harmed) and the Public Prosecutor’s Office (the co-
applicant), and the national legislature has not made any provision for an 
obligation for the court to hear the public sector body (the co-applicant) – or, 
simply, ‘all the parties to the accounting proceedings’ – despite the fact that that 
public sector body has the ex lege right to institute accounting proceedings, in 
accordance with the provisions of the law. 
76 Specifically, in the present accounting proceedings, SCC is a party as a public 
sector body and co-applicant. Therefore, that article omits the hearing of one of 
the co-applicants in the present proceedings, which infringes substantial aspects of 
that party’s right to a fair trial (the principle that the subject matter of an action is 
defined by the parties, the right to equal treatment, the right to a hearing, and the 
right of both parties to be heard), infringes the principle of equal treatment of the 
parties and undermines their legal interest. 
77 In effect, it is contrary to the right to a fair trial, to effective judicial protection and 
to the principle of equal treatment of the parties for the decision to close the 
accounting proceedings to be taken by the TCU without the co-applicant SCC 
having been heard or permitted to raise a defence. Since proceedings for recovery 
of public funds constitute a legal remedy established under national law in order 
to ensure the effective protection of the Union’s financial interests, the mechanism 
for adopting the decision terminating the proceedings for recovery of public funds 
laid down in Article 13(3) of the LOA must comply with the guarantees 
safeguarding the right to due process (right to a hearing, right of both parties to be 
heard, and equal treatment of the parties’ arguments, evidence and submissions) 
enshrined in Article 47 of the Charter and Article 6 of the ECHR, and cannot take 
SOCIEDAD CIVIL CATALANA 
 
27 
place where one of the co-applicants has not been heard or been permitted to raise 
a defence. 
78 On the other hand, Article 13(3) of the LOA also establishes that, once the 
abovementioned hearing has been held, the competent body of the TCU ‘will 
issue a decision finding that the defendant natural or legal persons have no 
accounting liability, where those public sector bodies have not objected’. 
Therefore, this provision only permits an automatic, unequivocal acquittal 
decision, without leaving any discretion for the TCU, which is itself a ‘European 
court’, to exercise its prosecutorial role by weighing up the arguments and 
evidence, not even for the purposes of assessing whether any of the 35 defendants 
might have not committed the acts for which they are claimed to have accounting 
liability, a claim made by some of them in the present accounting proceedings, in 
which case it would not even be necessary to apply the LOA in order to dismiss 
the applicants’ claim against that defendant. 
Eighth question referred 
79 According to the Court of Justice’s established interpretation of the rule of law, in 
particular in relation to the effectiveness of the preliminary ruling mechanism 
under Article 267 TFEU, Article 23(1) of the Statute of the Court of Justice of the 
European Union, and paragraph 25 of the Recommendations of the Court of 
Justice of the European Union to national courts and tribunals in relation to the 
initiation of preliminary ruling proceedings, the TCU also has doubts as to the 
compatibility – with those provisions – of the rules laid down in Articles 8(3), 10 
and 13(3), read in conjunction with the preamble (the tenth and eleventh 
paragraphs of Section V), of the LOA, in order to ensure the effectiveness of any 
final decision that the Court of Justice may be called upon to give in response to 
these questions referred for a preliminary ruling. 
80 The settled case-law of the Court of Justice fully guarantees the national court, in 
its capacity as a ‘European court’, that it may exercise the power, or comply with 
the obligation, to refer a question to the Court of Justice for a preliminary ruling. 
On this point, reference can be made to the order of 7 November 2022, FX and 
Others (Effect of the decisions of a constitutional court III), C859/19, C926/19 
and C929/19, EU:C:2022:878, paragraphs 135 and 138, which holds that the 
national court that exercised the discretion or complied with its obligation to make 
a reference to the Court of Justice for a preliminary ruling under Article 267 
TFEU cannot be prevented from forthwith applying EU law in accordance with 
the decision or the case-law of the Court of Justice, since otherwise the 
effectiveness of that provision would be impaired. It must be added that the power 
to do everything necessary, when applying EU law, 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 as provided for in the second subparagraph of Article 19(1) 
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TEU. Article 267 TFEU precludes any national rules or practice that can prevent 
national courts, as the case may be, from exercising the discretion or complying 
with the obligation, laid down in Article 267 TFEU, to make a reference for a 
preliminary ruling to the Court of Justice. 
81 The combined application of Articles 8(3) (compulsory lifting of interim 
measures), 10 (mandatory period of two months to reach a decision) and 13(3) 
(finding of no accounting liability in proceedings at first instance) of the LOA 
may have the effect that, when the Court of Justice rules in future on the present 
reference for a preliminary ruling, the application of the LOA has already required 
the TCU to lift the interim measures and to issue a decision finding that there is no 
accounting liability (with the power of res judicata). 
82 This can be inferred from the confusing and imprecise rules laid down in the 
LOA, in that it requires the courts to ‘… immediately lift the measures restricting 
rights […] adopted, even in those cases where there is a possible suspension of 
court proceedings’, and the formal safeguard whereby ‘this provision is consistent 
with […] questions referred for preliminary rulings under Article 267 of the 
Treaty on the Functioning of the European Union […]’ cannot be considered 
sufficient to guarantee the primacy of European Union law in matters where 
proceedings have been stayed to allow a request for a preliminary ruling. 
83 Consequently, the rules laid down in Articles 8(3), 10 and 13(3) of the LOA, in 
conjunction with the preamble thereto, are contrary to the principles of primacy 
and direct effect of Article 267 TFEU, with regard to the effectiveness of 
preliminary rulings, and in particular infringe the suspensory nature that that 
provision confers on the present proceedings for recovery of public funds.