The final instances: amparo, question of unconstitutionality and preliminary ruling to the CJEU

A final judgment does not always close all doors. The legal system provides 3 extraordinary mechanisms: the amparo appeal before the Constitutional Court (for fundamental rights under articles 14 to 29 of the Constitution, plus conscientious objection under 30.2), the question of unconstitutionality (when the law applied to your case may be contrary to the Constitution) and the preliminary ruling before the Court of Justice of the European Union (when the lawsuit depends on how an EU rule is interpreted or whether it is valid).

None of these is a third instance. The Constitutional Court does not review the facts or the interpretation of ordinary legality: it only protects fundamental rights. And the CJEU does not resolve your lawsuit: it answers a legal question that the Spanish judge then applies.

The timing is also different. The amparo is filed, as a general rule, after exhausting the judicial route; the exception is the amparo against decisions or acts without the force of law of the parliamentary chambers (art. 42 LOTC), which is a direct route before the Constitutional Court, without a prior judicial process and with a 3 month deadline. The 2 questions, on the other hand, are requested within the lawsuit, before the judgment or the appropriate resolution is issued: this is why they should be analysed early, not when everything has finished. Managora studies which of the 3 routes fits your case and drafts the corresponding document.

The amparo only protects the rights under articles 14 to 29 of the Constitution (equality, effective judicial protection, criminal legality, privacy, freedom of expression, etc.) and conscientious objection. Other constitutional rights, such as property, do not have access to the amparo.

It is a subsidiary route when the injury comes from an administrative act or a judicial resolution: you must have previously exhausted all ordinary appeals and have invoked the violated right in the process as soon as possible (art. 44.1 LOTC). The deadlines are short: 30 days from notification if the violation is attributed to a judicial resolution (art. 44.2 LOTC), 20 days if it is attributed to an administrative act after exhausting the judicial route (art. 43.2 LOTC) and 3 months for parliamentary acts without the force of law (art. 42 LOTC), the only case in which you go directly to the Constitutional Court. The calculation excludes non-working days: the electronic headquarters of the Constitutional Court offers an official deadline calculator.

The great filter is the special constitutional significance (arts. 49.1 and 50.1.b LOTC and STC 155/2009): it is not enough to have suffered a violation, you must justify in a specific section of the claim why the matter is important beyond your case (a new facet of a right, the violation comes from the law itself, general non-compliance with the Court's doctrine, etc.). Its omission or a generic justification is the first cause of inadmissibility.

Before the Constitutional Court, a lawyer and a procurador (court representative) are mandatory (art. 81 LOTC) and there is no tasa (official fee). Managora provides a quote for the appeal according to your case and includes the admissibility study and the drafting of the claim with the justification of the constitutional significance.

When the violation of the fundamental right could not be reported before the process ended and the resolution no longer admits an appeal, the law obliges you to first try to have it repaired by the same court that issued it: this is the exceptional incident of nullity of proceedings (art. 241 LOPJ and art. 228 LEC).

The deadline is 20 days from the notification of the resolution. If the defect causing defencelessness was known later, the 20 days run from that knowledge, but with an absolute maximum limit: nullity cannot be requested after 5 years have passed since the notification of the resolution. As a general rule, the incident does not suspend the execution of what was resolved.

This preliminary step is delicate: if it is omitted when it was appropriate, the amparo is inadmissible due to a lack of exhaustion of the judicial route; and if it is filed when it was manifestly inappropriate, it can consume the deadline and make the amparo out of time. Managora analyses in each case whether the incident is required before going to the Constitutional Court.

Yes, but the decision is not yours: according to article 163 of the Constitution and articles 35 to 37 LOTC, only the judge or court of the lawsuit can raise the question before the Constitutional Court, on their own motion or at the request of a party. The party requests; the judge decides.

For it to succeed, the document must identify a rule with the rank of law (not a regulation), demonstrate that it is applicable to the case (judgment of applicability) and that the ruling depends on the result of its validity (judgment of relevance), pointing out the infringed constitutional precept. The judge can only raise it once the procedure is concluded, within the deadline to issue a judgment or the appropriate jurisdictional resolution (art. 35.2 LOTC), which also allows it to be raised before resolving by order an incident whose fate depends on the questioned rule, and always after hearing the parties and the Public Prosecutor for a common and non-extendable period of 10 days.

There is no appeal against the judge's refusal to raise it, although the request can be reiterated in the successive instances of the lawsuit. If the lawsuit ends without it being raised and the violated right is one of those protected in amparo, the route of the Constitutional Court remains, alleging that the injury comes from the law itself, one of the cases of special significance of STC 155/2009.

If the judge raises it, the procedure is suspended until the Constitutional Court resolves, which indicatively takes from 1 to 3 years. Managora drafts the document structuring the judgments of applicability and relevance, which is where these requests usually fail.

Article 267 of the TFEU allows any Spanish judge to ask the CJEU how the Union Law applicable to their lawsuit should be interpreted, or if an EU act is valid. Just as in the question of unconstitutionality, the party can only request it: the referral is decided by the judicial body, and the lawsuit is suspended until the response.

For the body resolving in the last instance (the one whose decision no longer admits an appeal), the referral is mandatory, with 3 exceptions coined in the CILFIT judgment (case 283/81): that the question is irrelevant to the ruling, that the CJEU has already resolved it (clarified act) or that the correct interpretation is so obvious that it leaves no room for reasonable doubt (clear act). If the doubt is about the validity of an EU act, the referral is always mandatory (Foto-Frost judgment, case 314/85), because no national judge can declare a Union rule invalid.

Recent doctrine has reinforced the position of the litigant. The Consorzio Italian Management judgment (C-561/19, of 6 October 2021) requires that the last instance body that refuses to raise the question must motivate which of the exceptions applies. And in Spain, STC 37/2019, of 26 March, granted the amparo for violation of the right to a process with all guarantees (art. 24.2 CE) when a court stopped applying a Spanish law due to an alleged contradiction with EU Law without first raising the preliminary ruling. An unmotivated refusal is no longer free.

Regarding times, the average duration of procedures before the Court of Justice is around 17 months (16.7 months in 2025 according to its judicial statistics), with accelerated and urgent procedures for specific cases. Since 1 October 2024, questions on 6 technical matters (VAT, excise duties, customs code and tariff classification, passenger compensation and emissions trading) are resolved by the General Court, although all are still presented before the Court of Justice, which distributes them.

Official cost: none of the 3 mechanisms has a tasa. The amparo appeal does not accrue it, and the 2 questions are incidents of the already open lawsuit, without their own tasa. The real cost is the legal work: they are highly specialised documents that are quoted according to the case files and the complexity of the case. You can see the updated starting amount on the file of each procedure; in the amparo, the mandatory intervention of a lawyer and a procurador is added.

Realistic expectations: the Constitutional Court declares the vast majority of amparos inadmissible. According to its 2024 Report, out of almost 10,000 amparo appeals presented, 153 were admitted for processing, around 2%, and the lack of justification of the special constitutional significance was the first cause of inadmissibility. The 2 questions depend on the judge wanting to raise them: the party cannot force them.

Even so, a well-constructed document has value even if it does not succeed immediately: it leaves the right invoked for the following instances and for a possible appeal before the European Court of Human Rights, it forces the judge to motivate their refusal (with the consequences of the Consorzio doctrine and STC 37/2019) and, frequently, the underlying argument convinces without the need for the question to be raised.

If you believe your case justifies any of these routes, do not let the deadlines pass: Managora studies the viability, presents you with a quote and drafts the document coordinated with the defence of your lawsuit. You can start the study from the file of each procedure.