The following is a guest post from Eleonora Bottini, Professor of Public Law, University of Caen Normandy:

On June 20th and 26th, 2024, the French Constitutional Council, unsurprisingly, authorized the legislative snap elections in France to proceed as planned. Following the unexpected dissolution of the National Assembly on June 9^th after the polarized results of European elections, President Emmanuel Macron’s decisions faced a significant number of constitutional complaints – a total of 25 to date. Complaints challenged the two presidential decrees—one for the dissolution and one for organizing the election—based on Article 12 of the Constitution, which grants the President the authority to dissolve the National Assembly under certain conditions and mandates that elections be held within 20 to 40 days following dissolution.

Regarding the former, the Constitution requires the President to “consult” the Prime Minister and the Presidents of the two chambers before dissolving the lower chamber. According to various press articles, President Macron merely informed the President of the Senate and the National Assembly, and the Prime Minister discovered the dissolution only a few moments before it was announced. Without addressing the merits of the significance of the required consultation, the Constitutional Council reaffirmed a well-established precedent: no constitutional review can be performed due to lack of jurisdiction over the presidential power of dissolution. Similarly, the supreme administrative court, the Council of State, concluded that the dissolution decree is “an act related to the relationship between the President and the National Assembly,” and thus outside the court’s jurisdiction, following a doctrine similar to the political question doctrine known as the “government’s acts theory.” While the actual decisions are in line with past precedents, they provoked a somewhat astonishing thought for constitutional lawyers: if any of the other rules about the powers of the President in case of political crisis, such as the prohibition to dissolve the Assembly twice in one year, are broken, no judge would be able to control and sanction such a violation.

On the other hand, the Constitutional Council has jurisdiction over the elections decree, as it is considered a preliminary act to a national election. Under Article 59 of the Constitution, the Council serves as the election judge, a role that is parallel to but distinct from its function as a constitutional review body. Complaints argued that the minimum delay of 20 days between the dissolution and the first round of elections was not respected since the dissolution would only enter into force the day after its pronunciation (therefore on June 10^th) and since some overseas territories would start voting earlier than mainland France, on June 29^th. In its decision, the Council concluded for an opposite interpretation: the specific timing of snap elections should be interpreted not as 20 full days but as the possibility for elections to be organized on the 20^th day, which applies to the early elections in overseas territories, since the dissolution entered into force on the same day as the presidential decision was announced (at 9pm on a Sunday night).

Beyond the technical aspects of the Council’s decision, one must consider what else this body, which is neither an actual constitutional court nor a fourth branch institution, could have done given the advanced state of the political campaign and the time constraints on the President. The dates of the vote were influenced by French national holiday weekend (July 14^th) which risked increasing voter abstention, and the upcoming Olympic Games in Paris (starting July 26^th). Critics tried to argue that such a hasty election process violates the broader principle of voting sincerity and fairness, guaranteed by both the French Constitution (Article 3) and the European Convention on Human Rights (Article 3 of addition Protocol 1). However, once the Constitutional Council had interpreted the constitutional time-frame in the way it did, there was no chance that such timing could be considered anything but respectful of voting rights. Still, by rejecting these arguments with minimal explanation, stating only that “since the sole purpose of Article 1 of this decree is to set the date for convening the electorate within the framework provided by Article 12 of the Constitution, the complaint alleging disregard for the freedom and sincerity of the vote must be dismissed,” the Council left unclear why a decree setting the election date could not by itself impact the fairness of the vote. This is especially pertinent when the short preparation time for national legislative elections was the core of the complaints. But it was also an important part of the President’s political strategy to provoke the consolidation of an anti-extremes vote, one that no judge felt legitimate enough to discuss.