Quality of Democracy
#16Key Findings
Despite its free and fair electoral processes, France’s democracy receives only a middling ranking (rank 19) in international comparison. Its score on this measure has improved by 0.3 points relative to 2014.
Broad campaign-financing rules have been tightened, and new conflict-of-interest laws implemented following a series of campaign-financing scandals, but loopholes remain. Before appointment, all ministers are now subject to screening by an independent financial-transparency authority. A lower court ruled that former President Sarkozy violated campaign spending rules.
Media independence is legally guaranteed, but somewhat tainted by government subsidies and corporate ownership. Most weekly and daily media are owned by moguls wishing to influence public opinion, though the rise of the online sector is improving the situation. Some legal uncertainty is produced by frequent legislative and fiscal reversals and broad bureaucratic discretion.
While some liberties were curtailed during the pandemic, fundamental rights remained well protected. Non-discrimination rules are strong, but Muslims immigrants in particular face “invisible discrimination” in the labor market and elsewhere. The separation of religious and public life is a contested area, with increasingly illiberal attitudes toward non-Christian religious expressions evident in the public sphere.
Broad campaign-financing rules have been tightened, and new conflict-of-interest laws implemented following a series of campaign-financing scandals, but loopholes remain. Before appointment, all ministers are now subject to screening by an independent financial-transparency authority. A lower court ruled that former President Sarkozy violated campaign spending rules.
Media independence is legally guaranteed, but somewhat tainted by government subsidies and corporate ownership. Most weekly and daily media are owned by moguls wishing to influence public opinion, though the rise of the online sector is improving the situation. Some legal uncertainty is produced by frequent legislative and fiscal reversals and broad bureaucratic discretion.
While some liberties were curtailed during the pandemic, fundamental rights remained well protected. Non-discrimination rules are strong, but Muslims immigrants in particular face “invisible discrimination” in the labor market and elsewhere. The separation of religious and public life is a contested area, with increasingly illiberal attitudes toward non-Christian religious expressions evident in the public sphere.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
The electoral process is fair at all levels, and controls by ad hoc commissions or the judiciary ensure the smooth running of elections. There are some restrictions to assure that only serious candidates stand in presidential contests. These include a requirement that each potential candidate has to obtain 500 signatures of support from elected persons, such as mayors or senators, from a third of French départements, or counties, to prove his or her political relevance. In addition, candidates must pay a deposit of €15,000. But these restrictions do not limit the number or variety of political backgrounds of candidates. Ten candidates were present in the 2012 election and 11 candidates in 2017. Further restrictions to limit abuses were implemented in 2017. Spending is capped and now includes expenses for the primaries. In most local and national elections, many candidates decide to run because they benefit from equal access to the public media and from advantages such as the free provision of electoral materials or a partial reimbursement of expenses for candidates who win more than 5% of the vote. Electoral fraud is rare, but financial cheating is frequent, as evidenced by the condemnation of former President Nicolas Sarkozy for the hidden costs of his 2012 campaign. Some limitations are imposed on anti-constitutional parties. These restrictions, however, are exceptional and reviewed by the judiciary.
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
According to French laws regulating electoral campaigns, all candidates must receive equal treatment in terms of access to public radio and television. Media time allocation is supervised by an ad hoc commission during the official campaign. Granted incumbents may be tempted to use their position to maximize their media visibility before the official start. Private media outlets are not obliged to follow these rules, but except for media outlets that expressly support certain party positions, newspapers and private media tend to fairly allocate media time to candidates, with the exception of marginal candidates who often run with the purpose of obtaining free media access. The paradox of this rule for equal time is that the presidential candidates who are likely to make it to the second round receive the same amount of media time as candidates who represent extremely marginal ideas or interests.
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
The right to participate in elections as a candidate or as a voter is fully guaranteed. There is no evidence of restrictions or obstruction in the application of the law. Every citizen from the age of 18 enjoys rights that are provided by the constitution. This includes expats and convicts. There is no option to vote by mail, but expats can either vote in offices abroad (consulates or embassies) or by delegating power to a designated person in France. No progress has been made to extend the right to vote to foreign residents, except in the case of EU citizens. Voter registration is easy and, in particular in small local communities, it is quasi-automatic as the local bureaucracy often proceeds with the registration process even without a specific request from the individual. Elsewhere, potential voters have to register. Registration only requires an ID. It is usually estimated that some 10% of the electorate is not registered. This group essentially consists of two main groups: those who refuse to vote and those who have changed residence and subsequently neglected to register in their new place of residence.
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Lacking a sufficient legal framework, party financing has long been a source of recurrent scandals. Nearly all political parties used to finance their activities by charging private companies working for local public entities, or by taxing commercial enterprises requesting building permits. Former President Jacques Chirac’s sentencing once he lost his presidential immunity provided a spectacular illustration both of the illegal practices and the changing attitudes toward illegal financing. The first reasonably robust regulatory framework was established only in 1990. Since then, much progress has been made in discouraging fraud and other illegal activities. Nonetheless, not all party financing problems have been solved. Current legislation outlines public funding for both political parties and electoral campaigns, and establishes a spending ceiling for each candidate or party. The spending limits cover all election campaigns; however, only parliamentary and presidential elections enjoy public funding. Individual or company donations to political campaigns are also regulated and capped, and all donations must be made by check or credit card, except for minor donations that are collected, for instance, during political meetings. Donations are tax-deductible up to certain limits. Within two months after an election, a candidate has to forward the campaign’s accounts, certified by an auditor, to the provincial prefecture, which conducts an initial check and then passes the information on to a special national supervisory body (Commission Nationale des Comptes de Campagne et des Financements Politiques). In presidential elections, this review is made by the Constitutional Council (Conseil Constitutionnel).
These controls have made election financing more transparent and more equal. Yet loopholes remain, as evidenced by the Constitutional Council statement identifying irregularities in the financing of former President Sarkozy’s campaign in 2012. The former president and close aides were found guilty by a penal court for overspending and hiding these unauthorized costs. The case is still under examination by the highest court. As of the time of writing, the National Rally and its leader, Marine Le Pen, were being prosecuted for violating financing regulations. The tradition of cheating persists in many areas. Another example concerns the practice by some parties (including the National Rally and the MODEM centrist party) of using assistants paid by the European Parliament for purely partisan purposes. Finally, the Fillon scandal (in which the former prime minister used public money earmarked for parliamentary assistants to hire his wife and children – a practice that in itself was not forbidden – without any documented work being undertaken) led to a new piece of legislation in June 2017. Immediately after the presidential election, Macron introduced a new law to deal with the “moralization” of political life. The new law addressed several legal loopholes that allowed for morally ambiguous political behavior. For example, the new law prohibited members of parliament from hiring family members. Conflicts of interest are more strictly controlled and all ministers are subjected before appointment to a screening by an independent authority on financial transparency. When these rules are violated, three types of disciplinary action can be taken: financial (expenditures reimbursed), criminal (fines or jail) and electoral (ineligibility for electoral contests for one year, except in the case of presidential elections).
These controls have made election financing more transparent and more equal. Yet loopholes remain, as evidenced by the Constitutional Council statement identifying irregularities in the financing of former President Sarkozy’s campaign in 2012. The former president and close aides were found guilty by a penal court for overspending and hiding these unauthorized costs. The case is still under examination by the highest court. As of the time of writing, the National Rally and its leader, Marine Le Pen, were being prosecuted for violating financing regulations. The tradition of cheating persists in many areas. Another example concerns the practice by some parties (including the National Rally and the MODEM centrist party) of using assistants paid by the European Parliament for purely partisan purposes. Finally, the Fillon scandal (in which the former prime minister used public money earmarked for parliamentary assistants to hire his wife and children – a practice that in itself was not forbidden – without any documented work being undertaken) led to a new piece of legislation in June 2017. Immediately after the presidential election, Macron introduced a new law to deal with the “moralization” of political life. The new law addressed several legal loopholes that allowed for morally ambiguous political behavior. For example, the new law prohibited members of parliament from hiring family members. Conflicts of interest are more strictly controlled and all ministers are subjected before appointment to a screening by an independent authority on financial transparency. When these rules are violated, three types of disciplinary action can be taken: financial (expenditures reimbursed), criminal (fines or jail) and electoral (ineligibility for electoral contests for one year, except in the case of presidential elections).
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
The Fifth Republic (since 1958) reintroduced the referendum, not only for the ratification of the constitution but as an instrument of government. president Charles de Gaulle used referendums to seek support for decolonization and to revise the constitution, and in doing so, bypassed parliamentary opposition. In 1969, de Gaulle himself became a victim of the referendum process, as he had declared that he would resign should a referendum on regionalization fail. Since then, the referendum has been used less frequently. The use of referendums at the request and for the benefit of the executive is a risky enterprise. All referendums after those of 1962 have been characterized either by indifference and high levels of abstentions or by outright rejection, as in 2005 on the European Constitutional Treaty. Only once, on the vote over the Maastricht Treaty in 1992, was the executive able to secure a small, albeit fragile, majority.
Initially, only the president was entitled to call a referendum. Therefore, the practice was perceived as being an instrument of the executive rather than a genuine democratic tool, since popular initiatives are not possible under the referendum system. Since 2015, 20% of the members of parliament, if supported by 10% of the electorate, have been able to call a national referendum. However, the rules and procedures are very restrictive. This 20% threshold was met for the first time in June 2019, when a group of opponents to the privatization of Aéroports de Paris decided to resist the decision by the parliamentary majority. However, after nine months of political canvassing, only 1.09 million signatures had been collected out of the 4.7 million needed to allow the organization of a referendum. In acknowledging the failure of the initiative, the Constitutional Council expressed negative comments about the procedures associated with signatures’ collection. This cumbersome procedure has also been fiercely criticized by the Yellow Vest movement, which has advocated (without success) for a constitutional amendment that would allow genuinely popular initiatives and popular decision-making on a broad range of subjects.
Local referendums can be organized when municipalities are scheduled to be merged, or for local issues at a mayor’s initiative. However, very few have taken place, and participation rates have been very low. As an example, the 2013 referendum on the creation of a unique territorial unit in the region of Alsace had a participation rate of 20.05% of the electorate, thus failing to reach the quorum of 25%. In general, direct public involvement in policymaking is rare, and functions poorly due to public authorities’ reluctance to accept such influence, as well as the lack of an effective culture of public participation. The Notre-Dame des Landes airport saga is a case in point. After more than 30 years of high-conflict deliberations and protests, and in spite of a positive (but only consultative) referendum in 2016, the government finally decided to withdraw the project in January 2018.
Initially, only the president was entitled to call a referendum. Therefore, the practice was perceived as being an instrument of the executive rather than a genuine democratic tool, since popular initiatives are not possible under the referendum system. Since 2015, 20% of the members of parliament, if supported by 10% of the electorate, have been able to call a national referendum. However, the rules and procedures are very restrictive. This 20% threshold was met for the first time in June 2019, when a group of opponents to the privatization of Aéroports de Paris decided to resist the decision by the parliamentary majority. However, after nine months of political canvassing, only 1.09 million signatures had been collected out of the 4.7 million needed to allow the organization of a referendum. In acknowledging the failure of the initiative, the Constitutional Council expressed negative comments about the procedures associated with signatures’ collection. This cumbersome procedure has also been fiercely criticized by the Yellow Vest movement, which has advocated (without success) for a constitutional amendment that would allow genuinely popular initiatives and popular decision-making on a broad range of subjects.
Local referendums can be organized when municipalities are scheduled to be merged, or for local issues at a mayor’s initiative. However, very few have taken place, and participation rates have been very low. As an example, the 2013 referendum on the creation of a unique territorial unit in the region of Alsace had a participation rate of 20.05% of the electorate, thus failing to reach the quorum of 25%. In general, direct public involvement in policymaking is rare, and functions poorly due to public authorities’ reluctance to accept such influence, as well as the lack of an effective culture of public participation. The Notre-Dame des Landes airport saga is a case in point. After more than 30 years of high-conflict deliberations and protests, and in spite of a positive (but only consultative) referendum in 2016, the government finally decided to withdraw the project in January 2018.
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
In principle, media independence is guaranteed by a complete set of constitutional, legislative and administrative rules. There is not much more that can be done to improve the legal status of the press. This being said, media independence is multifaceted. One must distinguish between public and private media, as well as between legal independence and financial dependence or influence. Public authorities have in principle no direct capacity to intervene in public media decision-making as the power of control and supervision is delegated to an independent media authority. However, the situation is not clear-cut for many reasons. Public media are mostly dependent upon a special tax paid by every television owner, while their access to the advertising market was strongly curtailed by the former Sarkozy government. Most funding is now under government control.
In the private sector, public influence can be felt through the generous subsidies paid to all daily and weekly newspapers. However, it is paid as a kind of entitlement based on general rules and principles, and as such does not provide any real political leverage to the government. Much more serious is the porous nature of the barrier between the media and the political world, as well as the fact that most daily and weekly newspapers are owned by large business interests. Financial independence from private owners is rare. Most weekly and daily media are owned by moguls wishing to influence public opinion. As an exception, the daily Le Monde newspaper was in September 2019 able to agree with its main stakeholders that the publication’s journalists’ organization would wield veto power if a single investor were to attempt to take a majority share in the company.
In the private sector, public influence can be felt through the generous subsidies paid to all daily and weekly newspapers. However, it is paid as a kind of entitlement based on general rules and principles, and as such does not provide any real political leverage to the government. Much more serious is the porous nature of the barrier between the media and the political world, as well as the fact that most daily and weekly newspapers are owned by large business interests. Financial independence from private owners is rare. Most weekly and daily media are owned by moguls wishing to influence public opinion. As an exception, the daily Le Monde newspaper was in September 2019 able to agree with its main stakeholders that the publication’s journalists’ organization would wield veto power if a single investor were to attempt to take a majority share in the company.
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media pluralism is reasonably guaranteed in France.
Public media are supervised by an independent authority, with their ranks including several national TV networks and radios. They enjoyed monopoly status until the mid-1980s, when the Mitterrand government authorized the creation of private radio broadcast services. Today, the supply has considerably increased and since the market is shrinking (young people prefer the internet), the public services are declining but remain strong.
Whereas on the national level there is a wide range of newspapers expressing political pluralism, the local and regional situation is normally characterized by a monopoly or quasi-monopoly position of one paper in a given geographical area. The high-quality national newspapers belong to various capitalist groups. Among the few exceptions are a regional newspaper in the western part of France and the daily newspaper La Croix. Most of the newspapers belonging to media groups have secured a substantial degree of independence from their owners (complete in the case of Le Monde where the journalists are the de facto masters of the newspaper). Weekly papers belong to diverse groups (none is the property of the same group).
Local/regional newspapers belong to various local or national groups. Some are very independent (e.g., Ouest-France, the main daily in France), while others are more dependent on their owners, often a family group. Newspapers linked to political parties have practically disappeared from the scene, and their influence is marginal. The debate on press concentration has emerged due to the absorption of the Lagardère Group (Europe 1, Journal du Dimanche, Paris-Match) by a tycoon (Bolloré) who owns Canal+ and CNews (accused of having offered Zemmour a forum.
The print circulation of the country’s daily newspapers is low by Western standards, and has been negatively affected by free newspapers distributed in the streets, as well as by online publications. Indeed, the print market is largely in decline, and is suffering financially. The situation is further aggravated by an obsolete, inefficient, corporatist and costly system of distribution that is controlled by the unions. Many newspapers are being put in jeopardy due to the costs and general dysfunctionality of the distribution system. Faced with online competition, rising costs and a shrinking readership, print media have had to rely more and more on the benevolence of wealthy entrepreneurs or on the state. Given the multiple ties between political and business elites in France, this is not a particularly favorable situation for the maintenance of a vibrant culture of print media pluralism. This being said, the proliferation of online news media and online offerings provided either by print media or by “pure players” (like Mediapart, Rue89, Slate and Atlantico) should be taken into account. They contribute to media pluralism, whereas social-media networks – which are gaining more and more influence – tend to focus on scandals, and disseminate partial information or fake news. While social-media networks may play an important role in facilitating whistle blowers, they are unable to offer in-depth analysis and well-grounded information.
Public media are supervised by an independent authority, with their ranks including several national TV networks and radios. They enjoyed monopoly status until the mid-1980s, when the Mitterrand government authorized the creation of private radio broadcast services. Today, the supply has considerably increased and since the market is shrinking (young people prefer the internet), the public services are declining but remain strong.
Whereas on the national level there is a wide range of newspapers expressing political pluralism, the local and regional situation is normally characterized by a monopoly or quasi-monopoly position of one paper in a given geographical area. The high-quality national newspapers belong to various capitalist groups. Among the few exceptions are a regional newspaper in the western part of France and the daily newspaper La Croix. Most of the newspapers belonging to media groups have secured a substantial degree of independence from their owners (complete in the case of Le Monde where the journalists are the de facto masters of the newspaper). Weekly papers belong to diverse groups (none is the property of the same group).
Local/regional newspapers belong to various local or national groups. Some are very independent (e.g., Ouest-France, the main daily in France), while others are more dependent on their owners, often a family group. Newspapers linked to political parties have practically disappeared from the scene, and their influence is marginal. The debate on press concentration has emerged due to the absorption of the Lagardère Group (Europe 1, Journal du Dimanche, Paris-Match) by a tycoon (Bolloré) who owns Canal+ and CNews (accused of having offered Zemmour a forum.
The print circulation of the country’s daily newspapers is low by Western standards, and has been negatively affected by free newspapers distributed in the streets, as well as by online publications. Indeed, the print market is largely in decline, and is suffering financially. The situation is further aggravated by an obsolete, inefficient, corporatist and costly system of distribution that is controlled by the unions. Many newspapers are being put in jeopardy due to the costs and general dysfunctionality of the distribution system. Faced with online competition, rising costs and a shrinking readership, print media have had to rely more and more on the benevolence of wealthy entrepreneurs or on the state. Given the multiple ties between political and business elites in France, this is not a particularly favorable situation for the maintenance of a vibrant culture of print media pluralism. This being said, the proliferation of online news media and online offerings provided either by print media or by “pure players” (like Mediapart, Rue89, Slate and Atlantico) should be taken into account. They contribute to media pluralism, whereas social-media networks – which are gaining more and more influence – tend to focus on scandals, and disseminate partial information or fake news. While social-media networks may play an important role in facilitating whistle blowers, they are unable to offer in-depth analysis and well-grounded information.
To what extent can citizens obtain official information?
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Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
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Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
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Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
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Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
The right of access to information is solidly assured since it was strengthened in 1978 through the establishment of an independent agency, CADA (Commission d’Accès aux Documents Administratifs). This body guarantees that any private or public entity is entitled to be given any document requested from a public administration or service, regardless of the legal status of the organization (private or public) if the institution operates a public service. However, some restrictions have been established, mainly in relation with issues regarding the private sphere or the protection of intellectual property or business information in order to safeguard competition between companies. The main and more controversial issue is the refusal to issue documents by citing security or defense concerns, a concept which can be applied broadly and with a limited capacity for challenging in court. The administration in question must deliver the requested document within a month. After that deadline, inaction is considered to be a rejection that can be challenged in court and/or by submitting a request to the Défenseur des Droits (Defender of Civic Rights; Ombudsman). In some cases, the adopted solutions reflect the inability of the political elites to adopt clear-cut policies: for instance, it is possible to check the declaration of revenues and property of members of parliament but divulging the information is considered a criminal offense. This is a telling illustration of the reluctance to set up a full transparency policy. In general, a large range of governmental (or public bodies’) information, including official drafts, reports and audits, are freely accessible via the internet. Beyond the legal rules, two media outlets in particular (Canard enchaîné and Mediapart) have specialized in leaking information that public authorities would prefer to keep secret. This has become an important part of the transparency process, but has had the disadvantage of creating an atmosphere of permanent scandal, with petty or quasi-ridiculous issues sometimes becoming the main concern of social networks or tabloids.
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To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
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The state respects and protects rights, with few infringements. Courts provide protection.
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Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
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State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
In France, even though there is an established tradition of the rule of law and the recognition and protection of civil and fundamental rights, there is also a long history of infringements of those rights. The two main reasons for this are related to the distrust, and often contempt, of government toward the judiciary. This behavior dates back to the French Revolution and has been further exacerbated by the country’s fraught political history; violations have continued to occur up until the 1980s.
The situation has improved considerably in recent history for several reasons. France’s judicial system now acts in the shadow of international courts which prosecutes national violations of the rule of law. The European Court of Human Rights and the Court of Justice of the European Union play an incremental but decisive role in this progress. Secondly, the independence of the judiciary is ultimately well protected, and judges have become much more assertive, as demonstrated by the verdicts handed down to former presidents Chirac and Sarkozy in relation to the financing of parties and electoral campaigns.
With the proclamation of a state of emergency by the government following the terrorist attacks of 13 November 2015 and its extension until 1 November 2017 by the parliament, the question of possible infringements of civil rights has become an important issue. The Council of Europe has been informed about this measure, which implies a possible breach of human rights, according to article 15 of the European Human Rights Convention. Up to now, infringements have been rather limited, and the administrative courts have exerted control of the individual or collective measures adopted by the government in spite of pressures from right-wing political parties and the police to further restrict the rights of persons suspected of supporting terrorist activities. Numerous observers have argued that the repression of the Yellow Vest protests entailed a disproportionate use of force. However, the use of violence by protesters also reached a level rather rare even by French standards. Emergency laws and limitations on rights were again imposed due to the COVID-19 emergency. Most of the laws and government decisions were brought either to the Constitutional Council or to the Council of the State, which fully used the emergency procedures available to them. The Constitutional Council must make decisions within a month, while administrative courts can immediately suspend a measure in advance of a full examination that requires more time (référé Liberté). However, this usually takes only a matter of days. The system has been intensively used (and abused) by pressure groups and lawyers. On the whole, it can be said that fundamental rights were well protected in spite of the exceptional situation created by the pandemic.
The situation has improved considerably in recent history for several reasons. France’s judicial system now acts in the shadow of international courts which prosecutes national violations of the rule of law. The European Court of Human Rights and the Court of Justice of the European Union play an incremental but decisive role in this progress. Secondly, the independence of the judiciary is ultimately well protected, and judges have become much more assertive, as demonstrated by the verdicts handed down to former presidents Chirac and Sarkozy in relation to the financing of parties and electoral campaigns.
With the proclamation of a state of emergency by the government following the terrorist attacks of 13 November 2015 and its extension until 1 November 2017 by the parliament, the question of possible infringements of civil rights has become an important issue. The Council of Europe has been informed about this measure, which implies a possible breach of human rights, according to article 15 of the European Human Rights Convention. Up to now, infringements have been rather limited, and the administrative courts have exerted control of the individual or collective measures adopted by the government in spite of pressures from right-wing political parties and the police to further restrict the rights of persons suspected of supporting terrorist activities. Numerous observers have argued that the repression of the Yellow Vest protests entailed a disproportionate use of force. However, the use of violence by protesters also reached a level rather rare even by French standards. Emergency laws and limitations on rights were again imposed due to the COVID-19 emergency. Most of the laws and government decisions were brought either to the Constitutional Council or to the Council of the State, which fully used the emergency procedures available to them. The Constitutional Council must make decisions within a month, while administrative courts can immediately suspend a measure in advance of a full examination that requires more time (référé Liberté). However, this usually takes only a matter of days. The system has been intensively used (and abused) by pressure groups and lawyers. On the whole, it can be said that fundamental rights were well protected in spite of the exceptional situation created by the pandemic.
To what extent does the state concede and protect political liberties?
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All state institutions concede and effectively protect political liberties.
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All state institutions for the most part concede and protect political liberties. There are only few infringements.
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4
3
4
3
State institutions concede political liberties but infringements occur regularly in practice.
2
1
1
Political liberties are unsatisfactory codified and frequently violated.
Political liberties are presently well protected in France. This situation can be explained by several factors. The fact that these liberties are considered to be the legacy of the French Revolution sets them in a quasi-sacred position. The protections were granted and solidified by the highest administrative court during the Third and Fourth Republics. Recently, the Constitutional Council has played an increasingly active role in striking down laws that could jeopardize these liberties. The expansion of the court’s powers stemmed from its 1971 decision to protect the right of association from governmental intervention. However, history has shown that the status of such liberties could be diminished in times of crisis or military conflict.
A controversial and still not fully resolved issue is related to the interpretation of the separation of religious and public life (laicité). The ban on religious signs and symbols in all places of public administration and institutions is, in theory, applicable to all religious affiliations but concerns mainly the Islamic community. There is a growing uneasiness among the population about the public display of “differences,” an issue that right-wing and extreme-right parties are particularly vocal about. Indeed, an increasingly illiberal attitude has been evident in public opinion, manifesting in the rejection of differences based particularly on religious beliefs (e.g., Halāl food, public religious demonstrations and wearing burkinis on public beaches).
A controversial and still not fully resolved issue is related to the interpretation of the separation of religious and public life (laicité). The ban on religious signs and symbols in all places of public administration and institutions is, in theory, applicable to all religious affiliations but concerns mainly the Islamic community. There is a growing uneasiness among the population about the public display of “differences,” an issue that right-wing and extreme-right parties are particularly vocal about. Indeed, an increasingly illiberal attitude has been evident in public opinion, manifesting in the rejection of differences based particularly on religious beliefs (e.g., Halāl food, public religious demonstrations and wearing burkinis on public beaches).
How effectively does the state protect against different forms of discrimination?
10
9
9
State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
8
7
6
7
6
State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
5
4
3
4
3
State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
2
1
1
The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
In principle, any discrimination based on factors such as gender, race, ethnic origin or religion is banned by the constitution and by many specific laws. Beyond the recognition of the right of non-discrimination, however, institutional monitoring, judicial support and policy measures to ensure such rights are less than adequate.
France’s legal basis for non-discrimination is solid. The controversial recognition of “marriage for all,” or recognizing the right of gays and lesbians to marry legally, is a point in case. Courts tend not only to apply but also to extend these rights. Many policy measures, particularly financial incentives or subsidies, attempt to compensate for different instances of discrimination, in particular gender, age or migration background. However, the situation is often contradictory in many cases. For instance, while immigrants face challenges in getting residence permits, illegal immigrants have free access to healthcare and their children can be legally registered at school. A key contention concerns the integration of so-called second-generation immigrants. Despite many policy measures, a large number of these young French citizens feel like foreigners in their country, and are often considered as such by the population at large. The failure to provide quality schooling and, later, a proper job is one of the most dramatic dimensions of what is called invisible discrimination. Empirical studies have confirmed the discriminatory practices experienced by Muslim job-seekers (cf. France Stratégie). One serious handicap in dealing with this situation is enshrined in the French republican tradition, which emphasizes strict equality and excludes in principle any sort of discrimination, even positive discrimination (such as gathering statistics based on ethnicity to determine social service allocation).
Institutionally, a recent development is the creation of a new body named the Defender of Rights, which replaces several specialized agencies. In addition to national organizations, many regional or sectoral ad hoc institutions that address discrimination cases have been established.
Citations:
France Stratégie: Lignes de faille, Paris, October 2016
(http://www.strategie.gouv.fr/sites/strategie.gouv.fr/files/atoms/files/rapport-lignes-de-faille-ok.pdf)
Défenseur des droits: Discriminations et origines: l’urgence d’agir, Paris, 22 June 2020
(https://www.defenseurdesdroits.fr/fr/rapports/2020/06/discriminations-et-origines-lurgence-dagir)
France’s legal basis for non-discrimination is solid. The controversial recognition of “marriage for all,” or recognizing the right of gays and lesbians to marry legally, is a point in case. Courts tend not only to apply but also to extend these rights. Many policy measures, particularly financial incentives or subsidies, attempt to compensate for different instances of discrimination, in particular gender, age or migration background. However, the situation is often contradictory in many cases. For instance, while immigrants face challenges in getting residence permits, illegal immigrants have free access to healthcare and their children can be legally registered at school. A key contention concerns the integration of so-called second-generation immigrants. Despite many policy measures, a large number of these young French citizens feel like foreigners in their country, and are often considered as such by the population at large. The failure to provide quality schooling and, later, a proper job is one of the most dramatic dimensions of what is called invisible discrimination. Empirical studies have confirmed the discriminatory practices experienced by Muslim job-seekers (cf. France Stratégie). One serious handicap in dealing with this situation is enshrined in the French republican tradition, which emphasizes strict equality and excludes in principle any sort of discrimination, even positive discrimination (such as gathering statistics based on ethnicity to determine social service allocation).
Institutionally, a recent development is the creation of a new body named the Defender of Rights, which replaces several specialized agencies. In addition to national organizations, many regional or sectoral ad hoc institutions that address discrimination cases have been established.
Citations:
France Stratégie: Lignes de faille, Paris, October 2016
(http://www.strategie.gouv.fr/sites/strategie.gouv.fr/files/atoms/files/rapport-lignes-de-faille-ok.pdf)
Défenseur des droits: Discriminations et origines: l’urgence d’agir, Paris, 22 June 2020
(https://www.defenseurdesdroits.fr/fr/rapports/2020/06/discriminations-et-origines-lurgence-dagir)
Graph View
To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
10
9
9
Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
8
7
6
7
6
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
5
4
3
4
3
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
2
1
1
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
French authorities usually act according to legal rules and obligations set forth from national and supranational legislation. However, the legal system suffers still from a number of problems. Attitudes toward implementing rules and laws are rather lax. Frequent is the delay or even the unlimited postponement of implementation measures, which may reflect a political tactic for inaction or sometimes because pressure groups successfully impede the adoption of implementation measures. In addition, prosecutors enjoy the discretionary power to prosecute or not, if in their opinion the plaintiff’s complaint is minor and not worth taking to the court (e.g., a person complaining about a neighbor’s dog barking at night or, more seriously, some cases of marital violence). About one-third of all complaints do not trigger action from the public prosecutor’s office.
In addition, a considerable discretion is left to the bureaucracy in interpreting existing regulations. In some cases, the administrative official circular, which is supposed to facilitate implementation of a law, actually restricts the impact or the meaning of existing legislation. In other cases, the correct interpretation of an applicable law results from a written or verbal reply by a minister in parliament. This is particularly true in the field of fiscal law.
Finally, the most criticized issue of legal uncertainty derives from multiple and frequent legislative changes, particularly fiscal legislation. The business community has repeatedly voiced concerns over the instability of rules, impeding any rational long-term perspective or planning. These changes usually are legally solid, but economically debatable. It is not unusual that a fiscal measure adopted on the occasion of the vote of the annual budget is repealed or substantially modified one year later. A costly example is provided by the tax on dividends imposed in 2012 by the Hollande administration despite the strong reservations of legal advisers. The measure was later struck down both by the European Court of Justice and the Constitutional Court in October 2017. The courts’ decisions imposed an unexpected expense of €10 billion, which the government had to pay back to the companies. This forced the government to set up an exceptional tax on those companies, amounting to half of the reimbursement due.
In addition, a considerable discretion is left to the bureaucracy in interpreting existing regulations. In some cases, the administrative official circular, which is supposed to facilitate implementation of a law, actually restricts the impact or the meaning of existing legislation. In other cases, the correct interpretation of an applicable law results from a written or verbal reply by a minister in parliament. This is particularly true in the field of fiscal law.
Finally, the most criticized issue of legal uncertainty derives from multiple and frequent legislative changes, particularly fiscal legislation. The business community has repeatedly voiced concerns over the instability of rules, impeding any rational long-term perspective or planning. These changes usually are legally solid, but economically debatable. It is not unusual that a fiscal measure adopted on the occasion of the vote of the annual budget is repealed or substantially modified one year later. A costly example is provided by the tax on dividends imposed in 2012 by the Hollande administration despite the strong reservations of legal advisers. The measure was later struck down both by the European Court of Justice and the Constitutional Court in October 2017. The courts’ decisions imposed an unexpected expense of €10 billion, which the government had to pay back to the companies. This forced the government to set up an exceptional tax on those companies, amounting to half of the reimbursement due.
To what extent do independent courts control whether government and administration act in conformity with the law?
10
9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
7
6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
Executive decisions are reviewed by courts that are charged with overseeing executive norms and decisions. The process of challenging decisions is rather simple. Administrative courts are organized on three levels (administrative tribunals, courts of appeal and the Council of State, or Conseil d’Etat). The courts’ independence is fully recognized, despite the fact that the Council of State also serves as legal adviser to the government for most administrative decrees and all government bills.
This independence has been strengthened by the Constitutional Council, as far such independence has been considered a general constitutional principle, despite the lack of a precise reference in the constitution itself. In addition, administrative courts can provide financial compensation and make public bodies financially accountable for errors or mistakes. The Constitutional Council has gradually become a full-fleshed court, the role of which was dramatically increased through the constitutional reform of March 2008. Since that time, any citizen is able to raise an issue of unconstitutionality before any lower court. The request is examined by the Supreme Court of Appeals or the Council of State, and can be passed to the Constitutional Council if legally sound. The Council’s case load has increased from around 25 cases to about 75 cases per year (with a peak of more than 100 cases in 2011), allowing for a thorough review of past legislation. This a posteriori control complements the a priori control of constitutionality that can be exerted by the Council before the promulgation of a law, provided that one of three authorities (the president of the republic and the presidents of the two assemblies) or 60 parliamentarians (typically from the opposition) make such a request.
This independence has been strengthened by the Constitutional Council, as far such independence has been considered a general constitutional principle, despite the lack of a precise reference in the constitution itself. In addition, administrative courts can provide financial compensation and make public bodies financially accountable for errors or mistakes. The Constitutional Council has gradually become a full-fleshed court, the role of which was dramatically increased through the constitutional reform of March 2008. Since that time, any citizen is able to raise an issue of unconstitutionality before any lower court. The request is examined by the Supreme Court of Appeals or the Council of State, and can be passed to the Constitutional Council if legally sound. The Council’s case load has increased from around 25 cases to about 75 cases per year (with a peak of more than 100 cases in 2011), allowing for a thorough review of past legislation. This a posteriori control complements the a priori control of constitutionality that can be exerted by the Council before the promulgation of a law, provided that one of three authorities (the president of the republic and the presidents of the two assemblies) or 60 parliamentarians (typically from the opposition) make such a request.
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
10
9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
8
7
6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
5
4
3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
Appointments to the Constitutional Council, France’s Constitutional Court, have been highly politicized and controversial. The Council’s nine members serve nine-year terms. Three are nominated by the French president, who also chooses the Council’s president, and three each by the presidents of the Senate and of the National Assembly. Former presidents (at the time of writing, Nicolas Sarkozy and François Hollande) are de jure members of the council but have decided not to attend meetings. Up to the Sarkozy administration, there were no checks over council appointments made by these three highest political authorities. Now respective committees of the two parliamentary chambers organize hearings to check the qualifications and capacity of proposed council appointments. From this point of view, the French procedure is now closer to the process by which Supreme Court justices are appointed in the United States than to usual European practices. Contrary to U.S. practice, however, the French parliament has not yet exerted thorough control over these appointments, instead pursuing a rather hands-off approach, particularly when appointees are former politicians. In 2017, a Senate president’s nominee for the council (a senator and former minister of justice) was forced to withdraw after he had passed all the necessary parliamentary checks. This was prompted by a newspaper report that he had recruited (and paid with public money) his children as personal assistants. While not forbidden by law, the public disapproval following the Fillon scandal proved to be a sufficient deterrent. The case underlined the leniency of parliamentary control vis-à-vis former politicians.
Other top courts (penal, civil and administrative courts) are comprised of professional judges, and the government has only limited influence on their composition. In these cases, the government is empowered only to appoint a presiding judge (président), selecting this individual from the senior members of the judiciary.
Other top courts (penal, civil and administrative courts) are comprised of professional judges, and the government has only limited influence on their composition. In these cases, the government is empowered only to appoint a presiding judge (président), selecting this individual from the senior members of the judiciary.
To what extent are public officeholders prevented from abusing their position for private interests?
10
9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Up to the 1990s, corruption plagued French politics. Much of the problem was linked to secret party financing, as political parties often sought out alternative methods of funding when member fees and/or public subsidies lacked. Judicial investigations revealed extraordinary scandals, which resulted in the conviction and imprisonment of industrial and political leaders. These cases were a key factor for the growing awareness of the prevalence of corruption in France, leading to substantive action to establish stricter rules, both over party financing and transparency in public purchases and concessions.
However, there were still too many opportunities and loopholes available to cheat, bypass or evade these rules. Various scandals have provoked further legislation. After a former minister of finance was accused of tax fraud and money laundering in March 2013, a new rule obliged government ministers to make their personal finances public. Similarly, parliamentarians are also obliged to submit their personal finances to an ad hoc independent authority, but their declarations are not made public, and the media are forbidden to publish them. Only individual citizens can consult these disclosures, and only within the constituency in which the member of parliament was elected. The legal anti-corruption framework was strengthened again by the Sapin law adopted at the end of 2016, which complements existing legislation on various fronts (conflict of interests, protection of whistleblowers).
Immediately after the 2017 elections, President Macron decided, as a symbol, to introduce a bill dealing with the “moralization of public affairs.” The new law contains many additional restrictions, such as a prohibition on parliamentarians employing members of their family, and the elimination of the so-called loose money that members of parliament had previously been able to distribute and use without constraint or control. The new legislation constitutes a major contribution with regard to reducing conflicts of interest, and may help to eradicate corrupt practices. As a consequence of the new rules, as well as the activism of the press on these issues, the appointment of ministers is kept secret for a few days before being officially announced. This allows the independent authority time to check and clear the legal, fiscal and financial backgrounds of potential nominees.
This persistent strengthening of the rules has been justified by recurrent corruption scandals relating to the funding of political campaigns by African states, the irregularities in the accounts of Sarkozy’s 2012 electoral campaign, and the misuse of funds provided by the European Parliament discovered in 2017, to cite a few examples. On 1 October 2019, the country’s highest court (Cour de Cassation) confirmed that former President Sarkozy should be prosecuted before a penal court (Tribunal correctionnel). The first-instance court handed down a guilty verdict in 2021, but Sarkozy has appealed this judgment.
However, there were still too many opportunities and loopholes available to cheat, bypass or evade these rules. Various scandals have provoked further legislation. After a former minister of finance was accused of tax fraud and money laundering in March 2013, a new rule obliged government ministers to make their personal finances public. Similarly, parliamentarians are also obliged to submit their personal finances to an ad hoc independent authority, but their declarations are not made public, and the media are forbidden to publish them. Only individual citizens can consult these disclosures, and only within the constituency in which the member of parliament was elected. The legal anti-corruption framework was strengthened again by the Sapin law adopted at the end of 2016, which complements existing legislation on various fronts (conflict of interests, protection of whistleblowers).
Immediately after the 2017 elections, President Macron decided, as a symbol, to introduce a bill dealing with the “moralization of public affairs.” The new law contains many additional restrictions, such as a prohibition on parliamentarians employing members of their family, and the elimination of the so-called loose money that members of parliament had previously been able to distribute and use without constraint or control. The new legislation constitutes a major contribution with regard to reducing conflicts of interest, and may help to eradicate corrupt practices. As a consequence of the new rules, as well as the activism of the press on these issues, the appointment of ministers is kept secret for a few days before being officially announced. This allows the independent authority time to check and clear the legal, fiscal and financial backgrounds of potential nominees.
This persistent strengthening of the rules has been justified by recurrent corruption scandals relating to the funding of political campaigns by African states, the irregularities in the accounts of Sarkozy’s 2012 electoral campaign, and the misuse of funds provided by the European Parliament discovered in 2017, to cite a few examples. On 1 October 2019, the country’s highest court (Cour de Cassation) confirmed that former President Sarkozy should be prosecuted before a penal court (Tribunal correctionnel). The first-instance court handed down a guilty verdict in 2021, but Sarkozy has appealed this judgment.