France’s Shifting Constitutional Landscape
France is experiencing a major shift in its constitutional and political landscape. After weeks of uncertainty, President Emmanuel Macron has now appointed Michel Barnier as Prime Minister, sparking new protests against Macron’s actions since the election. From a constitutional perspective, it is becoming clear that the President cannot simultaneously serve as an impartial guarantor of institutions on one hand and the most powerful political actor on the other. Although some constitutional questions remain unresolved, the events of recent weeks show that the institutional role of the President is reaching its limits amid France’s shifting political conditions. While the country’s presidentialist tradition is not over, the era of fait majoritaire — a cornerstone of the stability of the French system — has ended.
France’s departure from the Fifth Republic
The summer of 2024 will undoubtedly be remembered as a turning point for the French political-constitutional system. The surprising electoral success of the far-right party Rassemblement National (RN), which garnered 31% of the vote in the European elections of June 2024, led the President of the Republic to dissolve the National Assembly under Article 12 of the Constitution on the very night of the results. In record time (less than 20 days), two rounds of legislative elections were organized. The campaign was highly polarized, driven by concerns that the far right might secure an absolute majority in the Assembly. Following the first round on June 30th, a “republican front” was formed between the left-wing coalition Nouveau Front Populaire (NFP), the centrist Presidential coalition Ensemble, and the right-wing party Les Républicains. In the second round, held on July 7th, left- and center-right voters were urged to vote strategically, backing whichever candidate had the best chance of defeating the RN. In districts where trilateral elections occurred (where three candidates reached the 12.5% threshold), candidates were encouraged to withdraw in favor of the most viable contender against the RN. This strategy proved successful, with the NFP unexpectedly winning the most seats (180), followed by Ensemble (163), and the RN (143). This led to the scenario of a hung parliament with three political blocs in the National Assembly.
This situation represents a significant departure from the historical precedent of the Fifth Republic. Since the Constitution of 1958 entered into force, a clear majority in the Assembly following legislative elections has typically dictated the automatic selection of the Prime Minister, who would lead the majority party or coalition, and the subsequent formation of a majority government. The political system established over the past 65 years rests on both legal and political foundations. Most notably, the introduction of the direct election of the President of the Republic in 1962 fundamentally altered the parliamentary nature of the Fifth Republic. The presidential election became the focal point of political life, and the president emerged as the key actor in government formation. Although there have been three instances of cohabitation (1986-1988; 1993-1995; 1997-2001), where the parliamentary majority differed from the president’s political affiliation due to staggered election schedules, even in these cases, the Prime Minister was quickly identified as the leader of a clear majority, alternating systematically between the right and the left. Since 2000, the reduction of the presidential term from seven to five years, coupled with the scheduling of presidential elections approximately one month before legislative elections, has greatly reduced the likelihood of cohabitation. This change further reinforced the president’s role as the head of a two-tier executive, in which the prime minister is often a mere ‘collaborator.’ As a result, voters tend to grant the president a majority in the Assembly, diminishing the importance of legislative elections, as evidenced by high abstention rates (over 50% since 2017). Even before the legislative elections are held, newly elected presidents typically begin to informally designate the prime minister and government.
This tendency has been reinforced by the strictly majoritarian electoral system, which has historically marginalized extremist parties from parliamentary representation, fostering a stable alternation between centre-right and centre-left parties. The phenomenon of the so-called fait majoritaire ensured undeniable stability for the French regime, though at the expense of a robust system of checks and balances, often resulting in a lack of accountability.
Compromises in a system of presidential dominance
Nevertheless, the recent shifts in the political landscape have prompted significant institutional changes. The presidential and legislative elections of 2022 already signaled the beginning of an erosion in the smooth operation of the fait majoritaire. The president’s party only secured a relative majority in parliament, with 245 seats. This outcome compelled the governments of Élisabeth Borne and later Gabriel Attal to compromise, or to resort to forcing parliamentary approval, in order to pass key reforms. The myth of swift and decisive political decision-making was shattered, as both the president and ‘his’ government were forced to contend with the extended timelines required for parliamentary negotiation. It is likely the lack of parliamentary support for his executive agenda that led Emmanuel Macron to dissolve the National Assembly.
Political fragmentation in parliament is now even greater than in 2022. The composition of the National Assembly necessitates the formation of post-electoral coalitions to establish a viable government. This introduces—or rather, imposes—a parliamentary logic of compromise onto a system that has historically been structured around presidential dominance.
How should these events be qualified from a constitutional perspective? Is there a clear break or rather an ongoing process of erosion of the political system of the Fifth Republic? In this evolving context, novel elements coexist with the enduring constitutional culture of the Fifth Republic—a culture deeply embedded in French institutions and embodied by the politicians who operate within them.
Presidential Discretion and Constitutional Limits: The Timing of Prime Ministerial Appointments
Due to the unprecedented composition of the National Assembly, Emmanuel Macron took 51 days to appoint a new Prime Minister, leaving the resigning government in place to handle “current affairs” from July 16th to September 5th. During this period, several voices raised concerns that the President’s delay was unconstitutional.
However, article 8 of the Constitution states concisely that “The President appoints the Prime Minister,” without specifying deadlines or criteria, granting the President significant latitude in making this decision.
Nevertheless, a key constitutional constraint exists. Article 49 acknowledges and regulates the government’s political responsibility before the National Assembly. Appointing a Prime Minister from a political faction without a parliamentary majority risks an immediate vote of no confidence, triggering a political crisis. Consequently, the parliamentary situation acts as an external constraint the President must consider.
In the absence of specific time limits, it cannot be argued that President Macron acted illegally by delaying consultations until after the Paris Olympics and conducting meetings with political figures to identify a suitable Prime Minister.
The length of the delay, coupled with the extended caretaker government, is notable mainly because it contrasts with past practices under the Fifth Republic. The post-election political fragmentation resembles the parliamentary regimes of other countries, where lengthy coalition negotiations are common and necessary to form a stable government. For instance, after the 2021 elections in Germany, two months passed before a coalition agreement was signed.
Are the Competences of the Resigning Government a Constitutional Black Hole?
Gabriel Attal’s caretaker government remains in office until new ministers are appointed by the incoming Prime Minister, MichelBarnier, in coordination with the President. During this interim period, the caretaker government is responsible for managing current affairs, ensuring the continuity of state services, and overseeing the essential operations of their respective ministries. The lengthy appointment process has raised questions about the boundaries of power of a resigning government.
In France, no specific legal text defines the powers of a caretaker government, and both legal practice and case law on this issue are sparse due to the rarity of such occasions. However, a key precedent was set by the Conseil d’État in its 1952 decision. This ruling clarified that a caretaker government is restricted to taking necessary routine measures to ensure the regular operation of the administration. It cannot, however, make decisions requiring political discretion, such as creating new rights or duties for citizens, or actions not already sanctioned by existing laws.
Despite the lack of clear regulations, the current caretaker government’s actions have faced criticism in the media and have been challenged before the administrative courts. Those challenges have not been successful, and the Conseil d’État holds the exclusive authority to rule on the legality of decrees issued by a caretaker government if it determines that these actions exceed the objective of maintaining public service continuity.
In an attempt to provide clarity—and potentially bolster the caretaker government’s legitimacy—Matignon’s legal department issued an internal memo, which was later circulated on social media. However, the memo simply reaffirms the well-known yet vaguely defined limits of a caretaker government’s powers. A key shortcoming is the memo’s failure to more precisely delineate the scope of its authority.
A comparison with Italy, where caretaker governments are more common, reveals a more structured approach, where the outgoing Prime Minister typically issues a directive to all ministries, outlining specific guidelines of self-restraint.
The President’s Constitutional Boundaries: Balancing the Role of Guarantor and Political Leader
Recent events have sparked debate over the constitutional role of the President of the Fifth Republic and the varying interpretations of the 1958 Constitution. When Emmanuel Macron declined to appoint Lucie Castets, the candidate chosen by the Nouveau Front Populaire (NFP), he justified his decision by arguing that her government would immediately face opposition from a majority of 350 MPs and would be overthrown. Simultaneously, he claimed to be acting within his “constitutional role as arbitrator, ensuring the Nation’s institutional stability and independence.” However, it can be argued that Macron overstepped his constitutional role, not necessarily by bypassing Castets, but by failing to delegate the task of forming a government coalition.
While the President is not constitutionally required to appoint any specific leader from a coalition or party, he cannot simultaneously serve as both the guarantor of institutions and the political leader orchestrating those institutions. If Macron had adhered to his role as the “guarantor of institutions” under Article 5 of the Constitution, he would have facilitated the formation of a stable coalition without direct involvement. It is not the President’s constitutional responsibility to preemptively judge whether a government led by the majority’s proposed candidate would be stable.
Two legal arguments support this interpretation. First, the French system of separation of powers, as outlined in the 1958 Constitution, clearly distinguishes between the executive and legislative branches. Ministers cannot also serve as parliamentarians, and the President cannot engage directly with Parliament – although Article 18 permits the President to address Parliament in a special joint session. Consequently, the head of state is not suited to lead parliamentary negotiations.
Second, unlike in many parliamentary systems, the French Fifth Republic does not require a vote of confidence for a government to take office. A government is established through decrees signed by the President, with an optional vote of confidence provided for under Article 49, paragraph 1. Therefore, the President cannot be certain that a Prime Minister appointed from the majority party would fail, as a government can exist without needing the Assembly’s confidence but must avoid a vote of no confidence. The high bar for passing a motion of no confidence means that parliamentary opposition would need to unite across party lines, which may not occur even if a Prime Minister lacks majority support.
This evolving political landscape exposes the contradictions of a system where the President is expected to serve as both the impartial guarantor of institutions and the most powerful political figure. Macron’s actions highlight his preference for political influence over his institutional role, as his consultations appeared aimed at finding a Prime Minister aligned with his own agenda rather than fostering cooperation between political factions.
The impeachment against President Macron: well-founded or “desperate” act?
On September 4th 2024, considering that Emmanuel Macron’s rejection of Lucie Castets was equivalent to an “abuse of power”, 80 MPs of the left coalition NFP launched the impeachment procedure against the President.
Under the Fifth Republic, as in many parliamentary regimes, the President of the Republic is politically irresponsible. This means that no constitutional mechanism allows for the President’s removal based on political disagreements with other institutions, such as Parliament. Political accountability rests solely with the government.
However, one exception exists: Article 68 of the Constitution. This article permits the removal of the President by Parliament, convened as a High Court, in cases of a “breach of duties manifestly incompatible with the exercise of the mandate.” Removal requires a two-thirds majority in both the National Assembly and the Senate, as well as a two-thirds majority in the High Court—a nearly insurmountable threshold given the current political landscape.
While legally feasible, and politically impossible, the question remains whether initiating such a process is justifiable. The Constitution does not clearly define what constitutes a “breach of duties,” and Article 68 has never been invoked. In any case, Macron’s delay in appointing a Prime Minister does not seem to constitute such a hypothesis.
However, introducing an impeachment motion could serve as a symbolic gesture to draw public attention to a critical issue within the Fifth Republic: the contradiction of an institution with near-total immunity at the center of political power, particularly during times when a caretaker government is in place and cannot be held accountable in lieu of the President. Given the principle that greater power demands greater accountability, the President’s broad immunity creates a sense of unaccountability, prompting some to consider the inappropriate mechanism of Article 68.
Conclusion: A Break from the Presidentialist Tradition or Gradual Erosion?
In conclusion, one might question whether the recent political events in the Fifth Republic signal a break from the presidentialist tradition or indicate its gradual erosion. The answer requires nuance: while the ‘fait majoritaire‘ is dead, the presidentialist interpretation of the head of state’s role remains intact.
The appointment procedure followed by President Macron confirms this trend. The new Prime Minister Michel Barnier comes from a political party, LR, which garnered just 46 seats in the legislative elections. He was chosen directly by the President (admittedly after weeks of ‘consultations’, but which he himself conducted personally). His choice was not the result of a post-election agreement between a coalition of parties. By his choice, President Macron is reaffirming three dynamics specific to the Fifth Republic regime: the marginalization of political parties in the government formation procedure; the absolute centrality of the President in the political direction of the State; the greater importance of the presidential election compared with the legislative election. This last point is confirmed by the general attitude of the various party leaders who, having lost the battle to appoint the Prime Minister, are now concentrating their energies on the forthcoming presidential campaign.
This unprecedented situation will undoubtedly leave its mark, especially as it is not yet fully resolved. Michel Barnier must now form a government capable of securing at least a relative majority in Parliament. It remains to be seen whether the new Prime Minister will seek a vote of confidence from Parliament. While not legally required, doing so could clarify for voters which coalition has been formed and the political program it supports. However, the stability of such a government may be short-lived and turbulent, given its serious lack of democratic legitimacy. Although the government has been formed in accordance with constitutional rules, how can citizens have confidence in the institutions when they voted in large numbers during the legislative elections, only to be confronted with a government that poorly reflects the majority of votes cast?
A highly dynamic institutional period can be expected, marked by motions of no confidence, mechanisms to ‘force’ the adoption of legislation, and constant negotiations by the government to avoid being overthrown. There is also the possibility of a dissolution after the next presidential elections. More concerning, however, are the political and social consequences. The growing polarization and rise of extremist movements are likely to intensify, as citizens’ distrust of politics deepens, further aggravating the crisis of democratic culture.
