Spain’s amnesty for Catalan separatists is a dilemma for the EU

“Rule-of-law fanboys” at the European Commission are reeling from the impact it could have in other parts of Europe.

Photo by Burak Akbulut / Anadolu via Getty Images

A political crisis is bubbling away in Europe about the abuse of law for political ends. The casus belli is a deal struck by Pedro Sánchez, the Spanish prime minister, with the Junts, the Catalan independence party led by Carles Puigdemont, ahead of the Spanish parliament’s investiture vote on re-electing Sánchez. The events have the potential to radiate far beyond Spain. They might even scupper a future EU accession of an independent Scotland.

The core element of the deal between Sánchez and Puigdemont is an amnesty law for Catalan leaders. This is not something a parliament should normally be able to decide on. Didier Reynders, the European justice commissioner, wrote a letter to the Spanish government, expressing alarm at the idea of a political amnesty overriding a legal ruling by an independent judiciary. The Spanish opposition agrees with Reynders. But everybody is doing it these days – interfering in legal processes.

In an interview with David Frost, Richard Nixon said: “Well, when the president does it, that means that it is not illegal.” The Spanish amnesty law has a Nixonian quality to it. The deal would grant amnesty for Catalan leaders convicted of sedition after Catalonia’s 2017 independence referendum. It would also lift the arrest warrant for Puigdemont. He was president of Catalonia at the time of the referendum – in which the Yes vote won an overwhelming victory, on a small turnout. It triggered a fierce reaction from the Spanish authorities – another case of politicians instituting legal proceedings. Today, in exile in Belgium, he is a member of the European Parliament.

The EU’s three-year-old “rule-of-law mechanism” gives the European Commission the right to sanction member states if it suspects a breach of European law. The Commission has always been the guardian of European law, but lacked effective rights of enforcement. So far, the Commission has not pressed a rule-of-law procedure against Spain. We are still at the letter-writing stage. The EU now faces a dilemma: it must choose between following its own rules and frustrating the formation of a large member state’s government. If it intervened, it would also risk quashing the opportunity for a political solution to the Catalan dispute.

The main weapon in the EU rule-of-law procedures is the threat of withholding payments from the EU budget. This is not a legal mechanism, as the name would suggest, but a political one. The European Commission first takes a decision. Then it puts the issue to EU ministers for a vote. They can block the decision with a sufficiently large majority. The intent is to protect judiciaries against politics – but it is politicians who trigger the procedure.

It was designed for what the EU deems to be rogue governments, such as those in Poland and Hungary. However, breaches of EU law are not the exclusive domain of such governments and EU member states have different judicial traditions. Nonetheless, the outgoing Polish government, run by the Law and Justice party, subjected its judges to disciplinary procedures that were clearly not compliant with EU law. Viktor Orbán, the Hungarian prime minister, has gone much further than Poland in his suppression of freedom of speech and his subjugation of the legal system. Spain, by contrast, is a stable democracy. It is one of the pillars of the modern EU. Yet Spanish governments also have a history of mistreating their independent judiciary. In particular, in 2018 Madrid failed to renew the mandate of the 20-member general council of the judiciary, the body that appoints Spanish judges and ensures their independence. The European Commission has called on Spain to renew the council’s mandate – to no avail.

The Spanish political mess raises vital questions: will the Commission be as tough on Spain as it was on Poland, for example? If yes, is the EU ready to provoke a political crisis in a large member state? If no, the EU would risk being accused of hypocrisy in applying rule-of-law procedures against political opponents only.

I don’t think the rule-of-law fanboys thought this through (Angela Merkel was sceptical from the beginning). They always underestimated the capacity of those under attack to strike back. Orbán is blackmailing Brussels by linking Hungary’s resumption of EU budget payments to his cooperation in the release of financial aid for Ukraine. How can you discipline member states if you rely on them for your foreign policy? Spain would have far greater resources to blackmail the EU if it were ever to get serious and try to block the formation of a new government on legal grounds.

Separately from all this, the conflict also has implications for the EU’s position on independence movements elsewhere. In Scotland, there has been a lot of complacency about the possibility of EU membership after a hypothetical Yes vote in an independence referendum. There is no shortage of people in the EU who would support Scottish EU membership.

But they, too, did not think this through. A Spanish government cannot conceivably agree to the accession of an independent Scotland while denying the same right to Catalans. That is especially the case now that Spain and Catalonia have put their past conflicts behind them.

The EU could not be simultaneously hostile to Catalonia and friendly towards an independent Scotland. Nor can it condone law breaches in some parts of Europe but not in others. It cannot be hostile to Orbán, while allowing Sánchez to override the Spanish judiciary. These are all self-imposed dilemmas.