The court's verdict is still to come, but the justice system itself is already on trial. The plea by prosecutors on November 13th for Marine Le Pen to be made ineligible for public office over the ongoing case involving the far-right Rassemblement National’s (RN) alleged misappropriation of European Parliament funds has sparked a wave of protest from certain politicians. These are predominantly on the Right (such as former interior minister Gérald Darmanin) and the far-right (such RN leader Jordan Bardella and the far-right Reconquête party's Éric Zemmour), who appear unwilling to accept that the law might apply to their own circles.
This is a common theme in populism when it comes to public misconduct scandals. Such cases expose the irrationality of political figures who advocate zero tolerance for everyday offenders; yet who portray the justice system as the country's number one problem when it examines cases involving politicians. In other words, their own cases.
Enlargement : Illustration 1
The prosecution's recommendations in the current case - which are not a judgement but a suggested sentence the court may or may not choose to follow at the end of the trial - have sparked intense legal debate among experts. The Paris prosecutor’s office called for the main defendant, Marine Le Pen, the former RN president and unsuccessful candidate in the past three presidential elections, to receive a prison sentence, fines, and – this is the object of the legal debate - a five-year period of ineligibility for public office.
Ineligibility to hold public office is a penalty that comes on top of any criminal sentence, one that potentially deprives a convicted elected representative of their current mandate and prevents them from running for public office again for a specified period. It is the political equivalent of measures found in other judicial scenarios, such as when a rogue business executive is banned from being a company director.
Given the “particular gravity” of the alleged facts and the “unprecedented partisan enrichment” allegedly involving the RN – in its scope the case far surpasses the recent one involving the centrist party MoDem - the prosecutors argue that this ineligibility punishment should be enforceable immediately. This means that if the court accepts their reasoning, the ban would take effect straight away upon judgement. Even if an appeal were lodged, this would not suspend its application.
The ban on holding public office became automatic under a 2016 law - it was passed three years after the shock of the Cahuzac affair involving former budget minister Jérôme Cahuzac - for offences involving a breach of public integrity. This includes the misappropriation of public funds, which is precisely what Marine Le Pen and RN officials are accused of in the current case.
Reasonable timeframe
To justify the imposition of such an additional penalty, prosecutors Nicolas Barret and Louise Neyton first of all emphasised that this would merely be a “straightforward application of the law, in line with the legislator's intent”. They also highlighted the severity of the alleged offence: over four million euros systematically misappropriated by the Front National (now Rassemblement National or RN) over a twelve-year period. “Have these individuals reassured you of their ability to manage public funds with integrity? The answer is no,” they told the court.
Finally, the two Paris prosecutors highlighted the delaying tactics employed by the defendants, who frequently refused to answer investigators and filed a total of 45 appeals, thus dragging the proceedings out for nearly a decade. “For a penalty to be effective and meaningful, it must be applied soon after the offence, within a reasonable time frame,” they argued.
An immediate ineligibility ruling for someone aiming to run once again for the presidency in the 2027 elections would, in theory, block Marine Le Pen's path to the Élysée. This prospect explains the outcry from Le Pen’s supporters and Gérald Darmanin, who have collectively claimed that such a decision would amount to an intolerable intrusion by the judiciary in the democratic process.
On the substance of the matter such anger is debatable, given that the punishment of ineligibility for office was not created by judges but by democratically-elected politicians themselves. In the political arena some seem to forget that judges are there to enforce the law on behalf of the French people, adhering to the letter and spirit of legislative texts resulting from the combined work of Parliament and the executive. Nothing could be more democratic.
“'Government by judges’? What a joke. It’s the exact opposite. If the penalty of ineligibility is mandatory, it’s because ‘the legislator’ imposed it. And if Marine Le Pen ultimately escapes it, it will be thanks ... to the judges who will have specifically decided to set it aside,” declared law professor Nicolas Hervieu on the social platform X.
Administrative absurdity
On a procedural level, if an immediate ban on holding office were to be pronounced against Marine Le Pen, it could only apply partially: she would be barred from standing in a future election but would still be allowed to retain her current mandate as a Member of Parliament.
This administrative absurdity stems from three consistent rulings by France's top constitutional body, the Conseil Constitutionnel or Constitutional Council, in 2009, 2021 and 2022. These judgements first established and then confirmed a special regime for the ineligibility penalty when it comes to sitting parliamentarians. Marine Le Pen is currently an MP for the Pas-de-Calais département or county in northern France.
In the three cases examined by the Conseil Constitutionnel, parliamentarians – two members of the French Senate, senators Gaston Flosse and Jean-Noël Guérini, and one MP in the National Assembly, Michel Fanget – had been given immediately enforceable bans on holding public office. In all three instances, the Conseil Constitutionnel refused to uphold the removal of an existing mandate that had been imposed by the initial trial verdict. Without providing a detailed explanation, the constitutional body simply asserted that the “provisional enforcement of the penalty depriving Mr X of his eligibility rights has no effect on the current parliamentary mandate”.
In its first ruling on this, in 2009, the constitutional body went so far as to declare that “it is not the role of the Conseil Constitutionnel […] to declare the forfeiture of a parliamentarian’s mandate as a result of an ineligibility penalty subject to provisional enforcement when that conviction has not become final”.
In essence, the Conseil Constitutionnel acknowledged the existence of an immediate ban on holding office, but rendered it meaningless by asserting that it could only take effect once all legal appeals had been exhausted - the very opposite of an immediately-enforceable measure.
Two-tier system
The situation is made even more questionable by the fact that this special regime for parliamentarians does not extend to local elected officials (mayors, presidents of départements or regions, councillors and so on), as has been determined by the Conseil d’État. That body, the country's highest administrative court, reaffirmed this in 2018 in the case of a regional councillor from the French overseas region of Guadeloupe. It ruled that an elected official sentenced to a ban on holding public office did indeed automatically have to relinquish their current mandate.
Several local elected representatives have recently borne the consequences of this, such as Hubert Falco, the mayor of Toulon in the south of France, who, after being convicted in 2023 and sentenced to immediate ineligibility in the so-called “fridge” case, was forced to give up his elected positions upon leaving court. The same applied to the mayors of Ozoir-la-Ferrière and Saint-Thibault-des-Vignes in the Seine-et-Marne département of northern France, who were recently convicted of corruption in a case involving former state prefect Alain Gardère. Louis Aliot, the mayor of Perpignan in southern France, faces a similar risk as he is a co-defendant of Marine Le Pen in the current RN misappropriation of public funds case.
How should one interpret the unbalanced nature of the law as it relates to Marine Le Pen? As the case law currently stands, if she is convicted by the criminal court - the judgement will be known in a few months' time - Marine Le Pen runs the risk of being barred from standing in any election for a period of five years. That includes the presidential election in 2027.
Yet if the Paris public prosecutor's office were to ask the National Assembly to disbar her as an MP, Marine Le Pen could refer the matter to the Conseil Constitutionnel, which would refuse to give the go-ahead until all avenues of appeal (lower appeal courts plus the top appeal court the Cour de Cassation) had been exhausted. Those who are sometimes dubbed the “sages” of rue de Montpensier - the Paris street where the Conseil Constitutionnel is based - have therefore created a two-tier system for the people's representatives.
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- The original French version of this story can be found here.
English version by Michael Streeter