More than three months after her conviction by the Court of Appeal and her appeal, the subject resurfaces: Can Marine Le Pen run in the presidential election? The National Rally candidate, given the lead in the first round in all recent polls, is convinced of this. In July, she considered it "unrealistic", to the Journal du Dimanche, to be disqualified in the race for the Elysée. However, this question divides the highest magistrates. One of them, honorary chamber president at the Court of Cassation, developed a new argument on Tuesday, October 27, in an interview with Le Monde.
“Marine Le Pen is currently ineligible until the decision of the Court of Cassation on her appeal, and in the event of the Paris Court of Appeal's ruling being overturned, she will remain so,” affirmed Didier Guérin. In the wake of these declarations, Marine Le Pen's lawyers appealed to the Superior Council of the Judiciary against the honorary magistrate in order to remind him of "his ethical obligations". “The statements made are in clear contradiction with positive law on the question of provisional execution,” they also believe in a press release shared on X by the boss of the RN.
The far-right elected official was sentenced on July 7 by the Paris Court of Appeal to three years in prison, one year of which can be modified under an electronic bracelet, as well as forty-five months of ineligibility, including thirty months suspended, for embezzlement of public funds. During the first instance judgment, in March 2025, she was sentenced to four years in prison, including two years spent under an electronic bracelet, and a fine of 100,000 euros. This sentence was then accompanied by five years of ineligibility with provisional execution.
Two senior magistrates at odds
Today, there is absolutely consensus on one legal point: as long as the Court of Cassation does not rule, Marine Le Pen's appeal suspends the decision of the Court of Appeal, which is why she does not wear an electronic bracelet. In a press release, published in July on “The Paris Court of Appeal did not pronounce provisional execution on any part of its decision. Thus, the criminal provisions of this judgment, which partially overturned the judgment of the Paris judicial court, cannot be implemented,” added the highest court in French law.
However, according to Didier Guérin, "Marine Le Pen finds herself maintained in the previous legal situation". The criminal court combined the five-year ineligibility with a provisional execution, so this “continues to be executed and is not suspended”, he believes. The magistrate cites several case laws, two judgments handed down by the Court of Cassation in 1993 and 2014, but also a judgment from the Council of State in 2019.
“The objective of provisional execution is the immediate execution of a sentence, whatever it may be (...) An appeal decision whose effect is suspended does not call into question what was decided with immediate effect by a first court.”
Didier Guérin, honorary magistrate at the Court of Cassation
This analysis contrasts with that of the Attorney General of the Court of Cassation, Rémy Heitz. On July 9, on France Inter, he considered that Marine Le Pen's appeal did not "revive" the first instance judgment and her sentence of ineligibility with immediate execution. “No, this is not well-founded reasoning, I am very clear on that,” he insisted.
“A question not easy to decide”
“If Didier Guérin and Rémy Heitz do not agree, it is because, all the same, the question is not so simple to decide,” notes a good expert on the Court of Cassation. For his part, Benjamin Morel, political scientist and specialist in the French Constitution, recalls that “law is not math, it is interpretation”.
“You have legal loopholes, that’s why we have case law. The problem is that in this matter, it doesn’t seem very clear.”
Benjamin Morel, political scientist and constitutional specialist
"I agree with Mr. Guérin. My firm opinion, and I had it even before Marine Le Pen announced her appeal, is that she is, because of this current appeal, ineligible", decides Alexandre Viala, professor of public law at the University of Montpellier and constitutionalist. “She is indeed presumed innocent, but the ineligibility of the first instance is reactivated. This is the legal logic of good Aristotle!”
Michaël Bendavid, criminal lawyer, closely examined the judgments mobilized by Didier Guérin. For him, those of the Court of Cassation do not "obviously demonstrate established jurisprudence", in particular because they do not relate to a situation of "electoral dispute" comparable to the case of Marine Le Pen. The decision of the Council of State of 2019 seems, on the other hand, much more telling. “It is, practically in every way, similar. When we read it, we are led to the same conclusion as Didier Guérin: Marine Le Pen is ineligible,” underlines Michaël Bendavid, an opinion shared by Alexandre Viala.
The criminal lawyer identified another judgment rendered by the Council of State in 2022, which reinforces that of 2019. “The two decisions respect the same logic,” notes Michaël Bendavid. He thus judges the choice of Marine Le Pen as “irresponsible”. “To present yourself despite the position expressed by the Council of State is, at worst, to make fun of the rule of law, and at best to pose a major risk to the democratic game,” he concludes. Especially since doubt is likely to remain in one of the future scenarios, according to several jurists.
Again a “big blur” if the call is broken
The Court of Cassation, which "could" rule on her appeal "at the latest in early April 2027", i.e. before the first round of the presidential election on April 18, has two possibilities: reject Marine Le Pen's appeal or overturn the decision of the court of appeal. In all cases, its role is not to comment on the consequences relating to the candidate's eligibility. “It is up to the Constitutional Council to validate the list of candidates,” recalls Alexandre Viala. The publication of this list must take place on March 26 at the latest.
If the appeal is rejected, "the conviction of Marine Le Pen by the court of appeal becomes final, and the question of ineligibility no longer arises, since the fifteen months set by the court of appeal will have been carried out", explains Didier Guérin in Le Monde. However, he adds, "another question will arise, the execution of home detention with an electronic bracelet. Given the timetable, it seems unlikely to me that placement under an electronic bracelet could be implemented before the electoral deadlines."
“The paradox, if the appeal is rejected, is that she will be convicted, but eligible.”
Alexandre Viala, professor of public law
Conversely, if the Court of Cassation overturns the decision of the Court of Appeal, then the question of Marine Le Pen's right to run will come back to the table, according to Didier Guérin. “The ineligibility decided at first instance will continue to apply, and Marine Le Pen will therefore not be able, in principle, to run in any election before March 31, 2030, as long as she has not been judged again on appeal,” says this member of the highest court of the judiciary in Le Monde.
If Alexandre Viala once again agrees with Didier Guérin's reasoning, Michaël Bendavid is more reserved. “The code of criminal procedure does not expressly say that due to cassation, the judgment comes back into force. This point does not seem to have been decided in case law.”
“In the scenario of a broken judgment, the legal hazard seems serious again.”
"It's really a big blur. There is, at first glance, no incontestable legal solution that is binding on everyone. And it's hard to think that there will be one by the first round of the presidential election," explains Jean-Eric Gicquel, professor of law at the University of Rennes, for Le Club des juristes.
Still in the event that the decision is overturned, a good expert on the Court of Cassation suggests that we "cannot completely rule out" that the court "does not talk about it at all". “It could very well specify the consequences of this cassation on the execution of the sentence of provisional ineligibility pronounced by the criminal court”, but the probability remains slim, as this “would create a risk of institutional disorder”, judges this source.
Ultimately, "the responsibility of the Constitutional Council will be the heaviest", comments Alexandre Viala. “Prohibiting a candidate, especially at the top of the polls, from running a few weeks before the first round would open a major political crisis,” says Jean-Eric Gicquel.
