Le Pen’s two Judgement Days: Should the Courts Let Electoral Calendars Interfere with Their Decisions?
Image source: https://img.lemde.fr/2026/01/10/0/0/4399/2933/1112/0/75/0/a0a4116_ftp-1-b3uv0akw4hgi-5847237-01-06.jpg
For the first time in two decades, an incumbent French president is ineligible for re-election; Emmanuel Macron has exhausted his two constitutionally constrained terms, and his inevitable departure from the Palais de l’Élysée turns attention to prospective successors.
The most bullish of these is Marine Le Pen, leader of both the hard-right Rassemblement National (RN), as well as all nationwide opinion polls. Having sought the presidency three times before this election, losing to Macron in the second round of the last two, Le Pen’s electoral history has been tumultuous. This campaign has proved no different with the RN leader’s efforts hampered by cumbersome legal proceedings surrounding her “fictitious jobs” case.
The proceedings relate to four European Parliament-financed assistants who were clandestinely working for the RN, rather than aiding Le Pen in her role as a member of the European parliament (MEP). They form part of a party-wide embezzlement scheme of fabricated jobs and contracts totalling €4.8m of public EU funds with the simple purpose of shifting party salary expenses onto an external body and thereby "mak[ing] significant savings thanks to the European Parliament”, as detailed in a 2014 email to Le Pen herself by then-RN treasurer Wallerand de Saint-Just. The ingenuity of the plan would be so, except that De Saint-Just had separately told MEP Jean-Luc Schaffhauser that Le Pen’s plans — “tantamount [to] signing up to fictitious jobs” — would see the party “get screwed”.
Initially, he was not wrong. In March 2025, the Correctional Court of Paris, consulted at first instance and with jurisdiction over “middling-level” offences, convicted Le Pen of “embezzlement of public funds” and “complicity in the embezzlement of public funds”, handing her a five-year ban on election to public office. The judgement, which also included a four-year prison sentence and €100,000 fine, provoked fierce debate over the role of the legal system in dismissing candidates from the electoral register. Indeed, Jean-Luc Mélenchon, Le Pen’s left-wing rival for the presidency, responded that "the decision to remove an elected representative should be up to the people". Others denounced this position as a populist talking point obscuring the strength of French judicial independence from political developments. It is worth noting that Mélenchon, too, was dogged by an investigation surrounding his own 2017 presidential campaign accounts.
Le Pen’s 2025 trial took place within a wider discussion on judicial influence over political process. Reminiscent of the United Kingdom’s landmark R (Miller) v Secretary of State for Exiting the European Union (2017), which asserted the pre-eminence of parliamentary rights conferred by acts of Parliament over the executive’s royal prerogative, thereby blocking the May government from unilaterally invoking Article 50, Le Pen’s original conviction can be understood as demonstrating the justice system’s prioritisation of due legal process over of its impact on the democratic process. This, after all, is its role as a branch of government free from external influence. A similarly populist flurry of reaction inundated the aftermath of the Miller case, with the Daily Mail infamously branding three of the relevant High Court justices “enemies of the people” for having “frustrate[d] the verdict of the British public”.
Of course, R (Miller) v Secretary of State for Exiting the European Union, an instance of judicial review determining the constitutional balance between executive prerogative and legislative sovereignty, differs fundamentally from Le Pen’s criminal case. Nonetheless, both display the immense political ramifications prompted by judicial assessment of, or interference with — depending on one’s standpoint — the political process.
In July 2026, the latter position prevailed as the Court of Appeal of Paris reduced the RN leader’s period of ineligibility to 45 months, 30 of which were suspended. The decision also backdated the sentence to Le Pen’s original March 2025 trial, meaning that the remaining 15 months had already been served, thus conveniently paving the way for a 2027 Le Pen presidential bid.
French courts of appeal hear cases at second instance (i.e. after a dissatisfactory outcome at first instance) and operate under the principle of double degré de juridiction, meaning they may review both the facts of the case and the initial application of the law to them. Le Pen’s retrial failed to establish a new set of facts but did lead to a different procedural outcome.
The Court of Appeal’s greater leniency therefore came despite an unchanged verdict of guilt. The difference was that it accounted for “the freedom of choice of the voter’ in its assessment of ‘the proportionality of the punishment”. This rhetoric, though framed in terms of voter choice, conceals a dangerous precedent. Allowing an upcoming election to influence its decision could, in Le Pen’s case, amount to preferential application of the law based on the defendant’s political status, thereby potentially undermining equality before the law altogether.
A March 2025 precedent set by the Constitutional Council may have informed the milder punishment. The Council is a court entrusted with review of legislation against the Constitution as well as, crucially, determining political candidate eligibility. Following a separate 2025 case, but presumably with Le Pen in mind, it judged it “up to the judge, in their decision, to assess the proportionality of the infringement [candidate dismissal] may have […] on the preservation of the voter's freedom”.
This fact becomes all the more striking when considered alongside the remarkably swift turnaround from Le Pen’s initial embezzlement trial to her appeal — just months rather than a customary two or three years. Ostensibly so as not to interfere with the spring 2027 presidential election cycle, the early sentence provided Le Pen with much needed eligibility well before the crucial 2027 juncture, reducing the prospect of a potential RN candidacy takeover by Le Pen protégé Jordan Bardella.
Notwithstanding what Le Monde labelled “a tailor-made decision”, one issue remains for Le Pen: an electronic tag. Alongside a reduction in her ban on election to public office,
the Court of Appeal resentenced Le Pen to three years in prison (as opposed to the original four), two of which were suspended, and the other under a GPS-monitored electronic bracelet. Le Pen has made clear, however, that such conditions, by preventing her “from campaigning completely freely”, would essentially be prohibitive.
Le Pen has, however, one final avenue of appeal to the Court of Cassation. The highest appellate court in the land, the Court of Cassation differs from its lower counterparts in that it does not operate under the principle of double degré de juridiction and may therefore only verify whether earlier decisions followed due legal procedure. Le Pen is therefore not appealing her prison sentence, but rather contesting that the premise of her trial, with reference to Article 432-15 of the penal code, does not pertain to MEPs. The motivations behind the appeal are twofold and provoke an unprecedented political hypothetical.
Le Pen’s logic is firstly grounded in Article 506 of the French Code of Criminal Procedure which provides for the suspensive effect of an appeal from its filing until a decision is reached. Consequently, her electronic bracelet punishment is not in effect unless and until the Court of Cassation confirms the conviction in January 2027, allowing her to campaign without restriction until then.
As the final court of appeal, Le Pen must accept the Court of Cassation’s judgement as conclusive, so her second motivation is simply that Article 432-15 be deemed inapplicable and her sentence therefore revoked. Yet, this strategy runs the risk that her conviction is upheld, leading to the possibility of a presidential candidate, and if elected, president under electronic tag. A ruling is set for January 2027, heightening the probability of this scenario.
In the case of an upheld sentence, Le Pen will be banking on her immunity as a member of Parliament, which delays any restriction on her freedom until approval from the bureau of the Assemblée Nationale (a one-month process). From then on, it could take until summer to schedule a bracelet-fitting appointment, by which point Le Pen could be benefitting from even greater immunity as president. Under Article 67 of the French Constitution, her election would immediately suspend the enforcement of any personal sentences until the end of her presidency.
The French public will see by 19 March whether Le Pen makes it onto the Constitutional Council’s final list of presidential candidates. Whatever the ruling by the Court of Cassation, her presence is likely because only her electronic tag, and not her eligibility, is in doubt. The case has paradoxically revealed both the legal system’s sway over the democratic process as well as its deference to the political context of its rulings, but Le Pen’s political future will ultimately be decided in April by the electorate — which will have the final say.
