Criticized by the opposition in particular for a video in which he appears alongside the majority candidate, Valérie Hayer, the President of the Republic has been calling for several days for a “wake-up” of voters in the face of the rise of the extreme right . But to what extent can the head of state get involved in this campaign?
“Wake up !“Emmanuel Macron raises his voice and seems to be getting more involved in the European campaign.”An evil wind is blowing in Europe“, “Russia will be there tomorrow, the day after tomorrow“: the Head of State called, Monday May 27 from Dresden, in Germany, on Europeans to “wake up” in the face of the rise of the far right and external threats, less than two weeks before the European elections.
“I can’t get used to the idea that the National Rally would be a party like the others“, he had already declared on Saturday during this visit to Germany, before repeating his wish to debate with Marine Le Pen. His camp, credited with 16% of voting intentions on June 9, is itself in difficulty facing the National Rally, Marine Le Pen’s far-right party which could win twice as many votes.
But the opposition has sometimes criticized him for having broken certain rules, such as a speech on the future of the European Union given by the head of theEtat at the Sorbonne on April 25 in Paris. But what does the law say on this issue? “The legislation does not really prohibit the President of the Republic from campaigning, but it simply ensures that there is as little confusion as possible between functions”for example between candidate and president, explains Romain Rambaud, professor of public law at Grenoble Alpes University.
“The problem is that in electoral law, we cannot think as a whole. There are almost specific regulations for each means of campaigning,” he adds. Let us cite in bulk audiovisual and financial means (campaign accounts), professions of faith, social networks, etc. Legislation overlaps and it is not easy to navigate.
The slightest deviations are in any case scrutinized by the opposition. In mid-April, the Élysée published on X a video of the President of the Republic alongside the head of the Renaissance list, Valérie Hayer, in Brussels. Which arouses the ire of the opposition. “We were in a presidential context and the means used were probably those of the Élysée, and he took the opportunity to promote a candidate,” notes Romain Rambaud.
“There is a clearly electoral message and the costs which may be partly associated with the trip are, in this case, intended to be charged to the campaign account.”
Romain Rambaud, professor of public lawat franceinfo
The National Commission for Campaign Accounts and Political Financing (CNCCFP) has been contacted and will have to judge whether there has been a mix of genres. The video in question was quickly removed but the event itself does not involve much risk, according to the professor of public law. “For this to really be a problem, it would have to result in the ceiling being exceeded [de dépenses légales autorisées]and in general there is margin”, he assures.
Emmanuel Macron’s speech on Europe, given at the Sorbonne on April 25, was also scrutinized. The Regulatory Authority for Audiovisual and Digital Communication (Arcom) considered that it was a campaign speech, and should therefore be “entirely” deducted from the speaking time of the Renaissance list. “If the remarks of the President of the Republic did not express explicit support for the list led by Ms. Valérie Hayer, they nevertheless presented, in their entirety, a direct link with the election,” had judged the regulatory authority.
The Campaign Accounts Commission must also make a decision, but it will do so after the vote, as for every election. She will have to judge whether the comments made were “obviously electoral”, that is to say if Emmanuel Macron has “refers relatively explicitly to elections or political opponents, or provides very clear support for a candidate, or what he says is exactly the same as what is in the election platform of another candidate”analyzes Romain Rambaud.
“Campaign teams can admit that in reality, it was obviously electoral. If they declare it and the candidate reimburses or covers the expense, it is not illegal.”
Romain Rambaud, professor of public lawat franceinfo
In the case, the two authorities, independent of each other, could deliver divergent conclusions. “You don’t have exactly the same way of looking at things, depending on whether you look at them from an audiovisual point of view or from a campaign accounts point of view, specifies the lawyer. For example, the same type of remarks could be considered as national political debate in the audiovisual sense, but that does not mean that it is clearly electoral from the point of view of the legislation on campaign accounts.”
In March 2022, one month before the presidential election, Emmanuel Macron broadcast his “letter to the French”, via his personal accounts on Twitter and Facebook, accounts followed by millions of subscribers. The CNCCFP then considered that the letter included “clearly electoral messages” and that the president-candidate had thus “benefited from a large audience built up thanks to public means”.
“As Emmanuel Macron had been using his personal page as an official communication instrument for a very long time, the CNCCFP considered that it was thanks to the means of the State that he had ‘boosted’ his pageexplains Romain Rambaud. And that it had therefore become his official page. This message was clearly electoral since that was when he made his declaration of candidacy.” Hence the conclusion of the CNCCFP: “The use of these accounts, on a date close to the election, constitutes an indirect advantage provided by a legal entity”. The president-candidate was notably fined a financial penalty of 100,000 euros for “legal person competition”, a practice prohibited by the electoral code.
The debate on personal pages or accounts was partly settled in 2022, but “it is not completely settled, according to Romain Rambaudbecause you have lots of people who continue to use their personal page, even though at one point in their life, they had political positions which allowed them to ‘boost’ their personal page.
The professor of public law also recalls the example of an article by Emmanuel Macron published in the press in March 2019, before the European elections. The CNCCFP judged at the beginning of 2020 that it had a “electoral character”because “the themes set out in the forum and those contained in the program of the Renaissance list present[aient] a large number of points of convergence”.
What about the rules on “election propaganda” material? Some French people have already received professions of faith in their mailboxes. On the Renaissance list prospectus, Valérie Hayer and Emmanuel Macron are side by side. “The only place it would be a problem would be on the ballot.” explains Romain Rambaud. On the latter, “there cannot be the name or face of someone who is not a candidate”in accordance with the electoral code. “So you cannot have the head of Emmanuel Macron, because he is not a candidate”, adds the professor.
On the other hand, we will be able to see well-known personalities such as Édouard Philippe, Jean-Luc Mélenchon, François Bayrou and even Marine Le Pen. All parties need to do is register them “at the end of the list because, legally, it allows them to put their head or their name on the ballot”. Election posters are not subject to these regulations.