Emmanuel Macron is using his power of appointment right up to the last moment. Fearing that the Rassemblement National (RN) could win an absolute majority in Assemblée Nationale, which would force him into cohabitation with a prime minister from the far-right party, the French president began a vast movement of appointments of senior civil servants and several figures close to his camp at the Council of Ministers on June 26.
And with four days to go before the second round of the snap parliamentary elections, the "appointments" section of the Cabinet minutes promised to be closely scrutinized on Wednesday, July 3. A salvo of appointments could be on the cards. The heads of the police and gendarmerie also need to be replaced, as they are retiring and have been kept on until the end of the Olympic Games. Going into overdrive, Marine Le Pen went so far as to denounce an "administrative coup d'état" by the Macronist camp. She claimed Macron was considering appointing a new director general of the national police to hamper RN leader Jordan Bardella's efforts if he were to accede as prime minister at the end of the election.
"Every week for the past 66 years there have been appointments and movements, particularly in the summer, regardless of the political times our institutions are going through, and there is no way that any of these provisions could change in the coming months," said Macron, calling on Le Pen to show "composure" and "moderation."
In June, 932 appointment texts – assignments, reinstatements, renewals – were published in the Journal Officiel (JO), the government gazette, its editorial staff told Agence France-Presse (AFP). The figure was higher than the average number of appointments announced in June from 2017 to 2023 (836), but still far from the more than 1,200 nominative measures of December 2020. "We can, of course, note an increase in nominative measures that can perhaps be explained in part by the electoral context, but it is nothing extraordinary or very significant at this stage," said the JO's editorial team.
Lucie Sponchiado, a lecturer in public law at the Université Paris-Est Créteil Val-de-Marne and author of a thesis on the president's power of appointment in the Fifth Republic, said she believes that "Emmanuel Macron anticipated the situation." This is a practice of anticipation "classic in the history of the three cohabitations experienced" by the Fifth Republic, the researcher said. "Previous cohabitations [between left and right] were different," as they did not involve the far right, said Mathieu Carpentier, professor of public law and constitutional law at Toulouse-Capitole University.
Believing that such a cohabitation would be a "danger" for the future of French institutions, the president "is trying to stay in control to slow down the implementation of policies" of the RN, said Sponchiado. "He's trying to do damage control," agreed Carpentier. Once the prime minister has been appointed after Sunday's elections, the president will have to deal with the prime minister to exercise his power of appointment.
The power of appointment is the freedom to choose and the ability to appoint someone to a public job. It is "a power shared by the president of the Republic with the prime minister." A large proportion of the president's decisions are in fact subject to countersignature by the prime minister. Sponchiado pointed out that "Article 19 of the Constitution stipulates that all acts of the president of the Republic are countersigned by the prime minister and, where applicable, by the ministers responsible," except in a few exceptional cases such as dissolution, the appointment of the prime minister or that of three members of the Constitutional Council and its president.
The appointments of heads of administration, such as prefects, ambassadors, academy rectors and central administrative directors, as well as those of the intelligence services, are no exception to the rule. These are "key positions" for the exercise of power, explained Sponchiado, because they enable the government's policies and directives to be implemented. Their appointment, which takes place in the Council of Ministers, is a "crucial issue," said Carpentier.
Appointment "is a shared power that is exercised jointly," explained the constitutional law professor. "In normal times, [the prime minister's countersignature of their appointment is] a formality, but in cohabitation, it's more complicated," he continued. "The prime minister will want to appoint senior civil servants sympathetic to his cause, but if the president refuses to sign the decree, the appointment doesn't take place." The opposite can also happen: The prime minister can refuse an appointment made by the president by not countersigning. Such a disagreement can lead to a deadlock because of the consensus required by the Constitution between the prime minister and the president.
The choice of "appointments may become a battle between the president and the prime minister," said Sponchiado. This "battle" could be hopeless, as there is nothing in the Constitution to settle such a disagreement. "To get out of it, there is nothing other than consensus," if it takes place in compliance with the Constitution.
Fleur Jourdan, a lawyer specializing in public law, said that "temporary powers for these positions can be put in place, as there are internal provisions in public establishments that allow this." She warned, however, that such temporary powers "are not permanent."
Translation of an original article published in French on lemonde.fr; the publisher may only be liable for the French version.