It is an historic victory. After three years of administrative and legal skirmishes, Mediapart has finally won its battle for complete transparency over the way France's election accounts are scrutinised. The country's highest administrative jurisdiction, the Conseil d'État, has just ruled that the media and citizens should have full access to the process of how candidates' campaign funding is overseen. It is a timely verdict, coming a year after the revelation of the Bygmalion scandal - involving the right-wing UMP and Nicolas Sarkozy's 2012 election accounts – which highlighted the major faults within the current French system of election finance oversight.
Mediapart took its action against the Commission Nationale des Financements Politiques (CNCCFP), the official body that oversees the campaign accounts of election candidates in France. The commission fought tooth and nail to the bitter end to keep secret the process by which it renders its verdicts. But following the Conseil d'État's ruling, delivered on March 27th, it will now have to open up its files.
Mediapart had brought the case in relation to the 2007 presidential election campaign accounts of Nicolas Sarkozy – the details of which this website has been seeking since 2012 - but the impact of this legal precedent goes much wider. It imposes full transparency on the scrutiny of all candidates in all elections, both those in the past – apart from presidential elections before 2007 - and those to come. From President François Hollande to far-right leader Marine Le Pen, and from the head of centrist party MoDem, François Bayrou, to Philippe Poutou, the New Anticapitalist Party's presidential candidate in 2012, no one will be exempt.
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Asked for a comment by Mediapart, the president of the CNCCFP, François Logerot, indicated that he did not comment on decisions by the Conseil d'État. But the mood at the organisation's offices in rue du Louvre, Paris, was said to be downcast.
Until now, officials at the CNCCFP have worked behind closed doors as they sought to ensure that the rules on campaign financing were respected – for example the limits on how much can be spent, the ban on donations from businesses. They had confidential exchanges with the candidates, a kind of one-on-one confrontation, but the respective weaponry at the disposal of the two sides has not always been equal. In fact, ever since it was set up in 1990, the CNCCFP has been under-resourced in terms of legal clout, personnel and money.
The electoral law does already explicitly allow a minimal form of public oversight of the scrutiny process. The public has been able to examine the accounts that are filed by the candidates themselves - the pile of invoices and pay slips and so on – plus the outcome of the decisions made behind close doors by the nine members of the commission after its rapporteurs have gone through the accounts. But what happens in between has, until now, remained shrouded in mystery. Journalists, defeated opponents or the simply curious have had absolutely no right to look at the period covering the commission’s investigation itself, a process that can take several months.
In practice, this has meant that the CNCCFP has always refused to divulge the list of questions sent to the candidates, as well as the replies and the documentary proof supplied by candidates' treasurers. The provisional conclusions of the rapporteurs have also always been kept under lock and key.
In the spring of 2012, convinced that the public had the right to see how the commission worked, Mediapart decided to lead the battle for greater openness. It chose a specific case and was resolved to take the issue to court if necessary. This website's aim was to see if the CNCCFP's rapporteurs carry out their work with tenacity or are just happy to do the 'bare minimum', if they have the resources to carry out their task or if they are forced to make do as best they can. Simply asking these questions was not intended to impugn their ability or honesty.
So Mediapart demanded access to the investigation carried out into Nicolas Sarkozy's 2007 election accounts, specifically to the letters exchanged between his treasurer and the CNCCFP's rapporteurs. Why him? It was because Mediapart had discovered a scheme involving secret funding of his campaign by the regime of Libyan leader Muammar Gaddafi, something which would undermine the validity of his accounts, accounts which had been approved more or less untouched by the commission after the 2007 election.
Among other things the aim was to see if the rapporteurs had raised any doubts at the time; if any such doubts had been quickly dispelled or buried; and if the members of the commission had ignored them. There is nothing to indicate this at this stage, but it still needs to be verified.
In its request to the CNCCFP, Mediapart relied on a law from 1978 which gives a right of access to administrative documents, a law that was inspired by the 1789 Declaration of the Rights of Man (Article 15 of which reads: “Society has the right of requesting account from any public agent of its administration”). This little-known and under-used 1978 law allows French people to consult any document produced by an administrative entity, for example a town hall or a ministry (with a few exceptions which are aimed at protecting privacy, the confidentiality of judicial investigations and so on). Yet though the CNCCFP is most certainly an administrative entity, it refused all requests.
'The secrecy of deliberations'
The commission disputed Mediapart's interpretation of the 1978 law and pursued all legal avenues available to it, claiming it was covered by the exceptions contained in the legislation, and basing its defence on the confidentiality of its work and the “secrecy of the deliberations”. The confidentiality of an investigation was “essential so that the rapporteur could act in all independence and intellectual freedom”, argued the CNCCFP's president in his written observations.
Moreover, the commission “does not necessarily accept all of the rapporteurs' complaints”, he noted. In such a case, he argued, to reveal a “suspicion initially expanded on by the rapporteur … could be prejudicial to the candidate”.
In June 2012 the independent commission whose job it is to ensure the 1978 law is respected, the Commission d’Accès aux Documents Administratifs (CADA) ruled in Mediapart's favour, a ruling that the CNCCFP chose to ignore. Mediapart then took the matter to court. Two years later the administrative court in Paris found for Mediapart, and directed the CNCCFP to hand over the requested documents. However, the commission then took the issue to the Conseil d'État to avoid having to comply.
Finally, on Friday March 27th, the country's highest administrative authority found against the CNCCFP, dismissing all its arguments, and ordering the state to pay Mediapart 3,500 euros in damages. The commission now has a month from the date of that ruling to hand over the requested documents.
In its ruling the Conseil d'État did make clear that certain documents, in particular the list of campaign donors of sums above 3,000 euros, should have names removed in order not to breach anyone's privacy.
Reacting to the verdict, Nicolas Sarkozy's former lawyer Philippe Blanchetier affected unconcern. When they were revealed, the documents from the investigation would show that “the commission did its job well in 2007,” he told Mediapart. “And that it hadn't held back when it came to causing hassle!”
Yet before the hearing at the Conseil d'État, the former treasurer of the 2007 campaign, Èric Woerth, did not display the same lack of concern. “Mediapart's request has a precise goal,” he wrote to the top administrative court. “Whatever the content (even anodyne) of the documents transmitted, it's simply to harm the persons concerned...” It would seem that the MP and former UMP treasurer has not understood Mediapart's purpose.
In reality the legal guerilla warfare carried out by Mediapart for three years (advised first of all by lawyers Ivan Terel and Sébastien Mabile from the law firm Lysias, then defended by Alain Monod before the Conseil d’État) had just one objective. This was to extend the “right to know”, to use an expression of Mediapart editor-in-chief Edwy Plenel, and the title of one of his latest books. “The openness of political life is the people's safeguard,” said Jean-Sylvain Bailly, the man elected as the first president of the National Assembly in 1789.
More than two centuries later this culture of openness and transparency still finds it hard to establish itself in modern France, where it is mistrusted by too many administrative bodies and neglected by the citizens. Indeed, the 1978 law on access to public documents had to be forced through by parliamentarians in the face of a reluctant government. From this point of view the United States can teach France a lesson, as since 1966 the Freedom of Information Act there has completely changed thinking on the issue. Since that act came into force it has been up to the administrative authorities in the US to give a reason for refusing to hand over documents, and it is not down to citizens to justify the reasons for their demands.
In the case of election funding in France, the CNCCFP has everything to gain from full transparency, given the growing number of scandals concerning political funding; Bygmalion, Russian bank loans to the far-right Front National, and hidden loans to the UMP, for example. This is because a lack of transparency fuels suspicions and the most lurid theories. By letting others see its work in action, the commission will reinforce its credibility and legitimacy – assuming that its work is indeed up to the task that it has been set.
If it is not up to it, then this urgently needs to be exposed publicly. Not exposed simply to increase the French public's mistrust of institutions, but with the aim of finally forcing legislators to vote for stronger scrutiny of political funding.
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- The French version of this article can be found here.
English version by Michael Streeter