French Constitutional Council Nominations: Rule of Law in Question

While Hungary and Poland are being targeted by the European Union for not respecting the rule of law, questionable appointments are about to take place at the highest level of the state in France. The European silence that accompanies these French appointments proves a variable appreciation of the respect for the rule of law, depending on the politics of the country concerned.

The Constitutional Council is one of the most eminent institutions within the French state apparatus. Its mission is to control the conformity of laws passed with the Constitution. It played a central role during the COVID-19 pandemic with the implementation of restrictions and the state of emergency. 

The Council came under much criticism during this time, because it repeatedly validated provisions that were clearly in contradiction with French law. Strong suspicions of conflicts of interest have recently been raised, in particular because of the links between the President of the Constitutional Council, Laurent Fabius, and his son Victor, who was in charge of implementing the vaccine strategy on behalf of the American consulting firm McKinsey. 

The Constitutional Council is renewed by thirds every three years. Its members are usually appointed by the President of the Republic, the President of the National Assembly, and the President of the Senate. On the occasion of the planned departure of three of its members in the next few days, the names of two potential successors were released to the press and immediately provoked bitter controversy.

President Emmanuel Macron chose to appoint a minister from his government, Jacqueline Gourault, to the Council—an unlikely and contested choice. Gourault is 71 years old and is currently in government as Minister for Territorial Cohesion. She is a former history and geography teacher, and has no legal expertise whatsoever, which raises questions about her ability to judge the conformity of laws with the Constitution. Her appointment reinforces the political character of the Constitutional Council and shatters its image of expertise and impartiality, which has already been damaged by the pandemic. Elina Lemaire, lecturer in public law at the University of Burgundy, believes that by making this choice Emmanuel Macron “does not take the Constitutional Council seriously.” “I can’t understand that in France, to judge the conformity of the law to the Constitution, we can trust people without legal expertise,” she added in an interview with Capital magazine.

Adding fuel to fire, the president of the National Assembly, Richard Ferrand, also made a controversial selection to the Council. He appointed the Breton magistrate Véronique Malbec, whose legal history with Ferrand sullies her ability to serve as councilor. She was the superior of the Brest prosecutor who, in 2017, decided to dismiss a corruption case involving Richard Ferrand and the Mutuelles de Bretagne company. The suspicion of an appointment in the form of a “reward” for having prevented legal proceedings from going forward against Richard Ferrand is therefore heavy. Moreover, Véronique Malbec is the chief of staff of the Minister of Justice Éric Dupont-Moretti: she therefore has the quasi-rank of a minister, which calls into question her neutrality. 

The Constitutional Council should normally be an impartial institution, intended to act as a counterweight to the sometimes critical decisions of the government in place. With political appointments of personalities beholden to those who have chosen them for their position, this role of checks and balances tends to disappear. In the case of Jacqueline Gourault as well as Véronique Malbec, they will have to examine the conformity with the Constitution of laws voted by their friends, their collaborators, or even the legal documents that they themselves supported. Under these conditions, the independence of their judiciousness could be called into question.

While articles in the French press have highlighted the scandalous nature of these appointments, there has been no reaction at the European level. The French Les Républicains (LR) MP François-Xavier Bellamy strongly denounced the double standards regarding the respect of the rule of law in an intervention in the European Parliament. He sarcastically explained, “It is always the same people who are targeted. However, I know a country that has been living under a state of exception for two years now, though it was supposed to last only twelve days. And it is not Hungary. I know a country where two people close to the government have been appointed to the Constitutional Council. And it is not Poland.”

As Bellamy and so many others have noted, the EU reserves its policing for countries whose politics do not align with its own, and turns a blind eye to the legal misconduct and crimes committed by ideologically correct member states. 

Theoretically, parliamentarians have the possibility to oppose these appointments, but in fact this has never happened, and it seems difficult to imagine that parliamentarians will oppose Emmanuel Macron a few weeks before the elections.