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At a glance: French legislative elections and the rule of law

In the first round of voting, Macron’s Ensemble coalition and the alliance of the left-wing parties NUPES ran neck and neck, both scoring around 25-26 % of the vote. According to the seat projections, based on the first-round results, Macron’s camp will get 257-296 seats, well below what they obtained in 2017 elections. Up to 157-206 seats are expected to go to the left-wing alliance. Despite Le Pen’s advancement to the presidential run-off, Rassemblement National (RN) is only projected to get 25-48 seats. All these projections indicate that the chances of Macron’s camp getting 289 seats or more are somewhat slim. A more likely scenario (an unusual one for France, where the President’s party typically has a clear majority), is that Ensemble will get a sizable portion of seats but fewer than 289. The third scenario, one in which the President is forced to appoint a Prime Minister from opposition parties -commonly named co-habitation- is the least likely. While wide popular support for NUPES will probably fall short of translating into a majority of seats in the Assembly, the left-wing alliance will definitely become the main opposition force in the French parliament. This most likely outcome will impact parliamentary oversight, the intensity of parliamentary debates and law quality.  

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Impact on the Rule of Law: Macron Coalition Win 

France’s rule of law record under Emmanuel Macron has received mixed reviews, and at times, controversial. His first term was marked by self-aggrandizement of the executive and failure of parliamentary and judicial oversight mechanisms. The executive branch took advantage of the crisis caused by the pandemic to consolidate powers and normalise emergency measures. Decision-making was often non-transparent and non-inclusive. Government’s use of public funds, excessive reliance on private consultancy firms, and secrecy of contracts concluded with such firms during the pandemic have been brought up by opposition during the presidential campaign in April 2022. Another concern that was raised related to the failure to implement legislative reforms. In 2017, Macron proposed making prosecutorial appointments conditional on the assent of the High Council for the Judiciary to reinforce prosecutorial independence. However, this reform was stalled. Although more resources were provided to the justice system, France still lags behind other major EU member states in this regard. 

Meanwhile, in 2021, the National Assembly adopted laws imposing restrictions on freedoms of expression, information and association. The anti-separatism bill introduced by the French Interior Minister Gérald Darmanin—and voted for by Macron’s LREM in July—prompted opposition and civil society criticism. Civil society organizations pointed out that the law broadens grounds for dissolution of associations, makes associations responsible for the actions of their members, limits access to funding, and ultimately, can shrink civic space. Multiple NGOs expressed disappointment in the September 2021 dissolution of a prominent anti-discrimination group, the Collective Against Islamophobia in France (CCIF) by the government. This, and other similar dissolutions, are viewed as a worrying symptom of the reduction of associative freedoms in France.  

“I would also not overrate Macron's record on the rule of law. His interior minister Darmanin mostly catered to an increasingly far-right electorate with poor results for the rule of law.' 

—Sophie Pornschlegel, Senior Policy Analyst, European Policy Centre 

 

“The considerable decision-making power afforded to the executive and the clear reduction of legislative and judicial powers which have resulted from this emergency regime have undermined the system of checks and balances, thus weakening the rule of law.... civil society actors fear that the French democratic system will be weakened by a normalization of extra-ordinary measures.” 

 

“The new ‘anti-separatism’ law – passed in July 2021 - ...expands quite substantively the level of control over associations by the State, thereby producing a chilling effect on the work of civil society actors and a negative impact on civic space.” 

—Liberties Rule of Law Report 2022, contribution of VoxPublic 

 

“During this five-year period, the concentration of power has accelerated...With new bodies, such as the secretly deliberative "Defence Council", democratic institutions have been bypassed and Parliament has been totally marginalised in its role as legislator...The state of health emergency has been extended indefinitely, after renewal of the state of security emergency several times. Exception provisions have become the norm de jure and de facto. The government has all the power, always distorting the rule of law a little more... Police behaviour far removed from republican principles continues to be tolerated and even supported at the highest level of the hierarchy.”  

                     — Ligue Des Droits de l’Homme, Elections 2022: LDH on Campaign Trail, 27 May 2022 

                                                                                                      (Unofficial translation from French) 

In his 2017 campaign, Macron engaged with watchdogs to explain his positions and plans to address rule of law issues, such as judicial/prosecutorial independence and anti-corruption measures. This was no longer the case in the 2022 presidential elections. 

Macron’s lateness in entering the presidential race and his vagueness in the direction he intends to take in his second five-year term meant there could be many blind spots in his programmes. The rule of law concerns fuelled by his previous performance were overshadowed by the war in Ukraine. If his camp obtains the majority of seats in the National Assembly, those concerns will inevitably emerge and be debated at some point during his second term, with criticisms coming from the opposition. The fact that Ministers of Interior Darmanin—whose laws and policies are often seen as anti-Muslim—and Justice Éric Dupond-Moretti—known for his strained relationships with judges—kept their positions arguably signals further trouble from the rule of law perspective. However, Macron’s intentional vagueness or pragmatic switches in his agenda to appeal to the left- and right-wing electorate as needed makes predicting the future developments somewhat difficult. 

If Macron obtained at least 289 seats, he would not need to negotiate with other parties in the Assembly to pass legislation and would only be constrained by constitutional council. It will be a major setback for Macron if his coalition secures fewer than 289 seats, which means he would have the largest group but not the majority. This would be an unusual scenario for France and more complicated for Macron to implement his programme.

Impact on the Rule of Law: NUPES win 

The so-called NUPES (La Nouvelle Union populaire écologique et sociale), which consists of left-wing parties with social and ecological agenda (La France Insoumise, the Greens EELV, the French Communist Party and the Socialist Party) formed an alliance so that they could have a single left-wing candidate in every constituency, rather than separate candidates, and avoid wasting the votes of the left-wing electorate.  

France 24 predicts that if that happens, Macron will have to reach out to Les Republicains (LR) (projected to get between 48 and 70 seats) to form a coalition or encourage individual law-makers to break ties with their parties and garner their support. In any case, such outcome will majorly slow down reform processes.

Some of the highlights of the NUPES programme are as follows: 

Reform of Justice System 

  • Increase the capacity of the judiciary, and recruit more magistrates and clerks. 
  • Strengthen the independence of the public prosecutor’s office, vis-à-vis the executive. 

Citizen intervention 

  • Introduce the Citizens’ Initiative Referendum (RIC) 
  • Systematically present the proposals made by citizens in the framework of citizens’ conventions or assemblies created for this purpose in the National Assembly. 
  • Make sure that referendums are compulsory in the event of constitutional amendment. 
  • Replace sponsorship of elected officials with citizen sponsorship for presidential elections.  
  • Institute the right of foreign residents to vote in local elections. 
  • Make effective the principle of non-cumulation of mandates.  

Ending “Presidential monarchy” 

 &

Checks and balances 

  • A stable parliamentary system with a new constitution adopted by referendum. 
  • Elect the national assembly by proportional representation and review the electoral calendar to separate legislative and presidential elections. 
  • Allow parliament to effectively control the actions of the executive.    

Anti-corruption measures 

  • Combat influence of lobbyists in the parliamentary debate. 
  • Tighten the rules against conflict of interest and prohibit revolving doors. 
  • Initiate a comprehensive reform of the financing of political life. 
  • Stop outsourcing the design and evaluation of public policies to private consultancy firms. 

Media  

  • Democratizing the media and adopting an anti-concentration law. 

 

 

Anti-discrimination measures 

  • Implement a comprehensive action plan against all forms of discrimination. 
  • Repeal "separatism" law and "asylum immigration" law.   

 

La France Insoumise or the France Unbowed, while originally did not rule out France’s exit from the EU, has softened its approach to some degree to be able to form an alliance with the Green party. According to their common agreement, although they no longer mull over ‘Frexit’, they would still disobey certain European rules—particularly economic and budgetary ones. This rhetoric arguably signalled that it is appropriate to cherry-pick which EU rules to obey or not. At the same time, when it comes to disobeying the EU law, the Greens appear to have drawn the line on the fulfilment of the rule of law commitments. The common platform also indicated the intention to ‘firmly oppose an attack on fundamental freedoms by far-right Hungarian and Polish governments.’ 

This is slightly more reassuring from the rule of law perspective than the stance taken by the Marine Le Pen's Rassemblement National (RN), ranked third in first-round votes and projected to get 25 to 48 seats. Le Pen was also accused of steering France towards (de facto) exit from the EU. If elected as President, Le Pen planned to submit a bill on immigration and identity through a referendum, modifying the constitution and setting aside the primacy of the EU law at the same time, but also to avoid review by the Constitutional Council. RN see this national assembly election as the last chance to limit the president’s powers. Her plan was to create the group of MPs and engage in the “legislative fight” and “cultivate a new parliamentary culture", rhetoric that seems to significantly resemble Hungary’s Viktor Orban, “whom she cites as a model”. 

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

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