Marine Le Pen’s promise to use a referendum to force through constitutional changes is facing an obstacle before French voters could even see a ballot paper. A public appeal signed by 110 constitutional specialists says Article 11 cannot be used to rewrite France’s basic law while bypassing Parliament.
The dispute puts Le Pen’s proposals on two separate legal tracks. At home, the proposed route could be blocked by the Constitutional Council. If measures such as “national priority” were nevertheless adopted, they could also collide with European Union rules on free movement and equal treatment.
The shortcut runs into Article 89
French media reported on 12 November 2026 that lawyers, university academics and judges specialising in constitutional law had issued an appeal to presidential candidates Le Pen and Jean-Luc Mélenchon. The signatories warned against using Article 11 to submit constitutional changes directly to the public.
Their argument rests on the difference between Articles 11 and 89. Article 11 provides for referendums on ordinary laws in a limited range of fields, including economic and social policy and certain international agreements. In the constitutionalists’ view, it does not create a general presidential power to amend the Constitution by popular vote.
Article 89 sets out the procedure for revising the Constitution. A proposed amendment must first receive approval from both chambers of Parliament. Only then can it be submitted to a referendum or, under the conditions laid down by the Constitution, approved by Parliament sitting in Congress with the required majority.
That parliamentary stage is precisely what Le Pen’s proposed approach would avoid. Her agenda has included constitutional changes relating to “national priority”, tougher immigration controls and a ban on the hijab. National priority could give French citizens preferential access to employment, social housing or certain benefits.
Taking such measures directly to voters offers an obvious political advantage. It promises a rapid decision on issues that could struggle to win support in a fragmented Parliament. But the 110 signatories argue that political popularity cannot change the legal nature of the proposals. If they amount to constitutional amendments, they must follow Article 89.
The appeal also describes the Article 11 debate as part of Le Pen’s electoral strategy. The promise of an immediate referendum can make radical changes appear straightforward, even when the procedure itself would face a legal challenge. That challenge could arise before any campaign began.
A precedent, but not a clean one
Supporters of a wider interpretation of Article 11 often point to Charles de Gaulle’s decision in 1962. The president used the provision to put the introduction of direct presidential elections to a referendum, rather than using the constitutional revision route.
The constitutionalists reject that episode as a dependable legal precedent. They say the move was already regarded by many at the time as contrary to the Constitution’s rules for amendment. De Gaulle also tied his own political future to the result, making clear that he would leave office if the vote went against him.
That history shows how far a president can choose to push an institutional confrontation. It does not, in the signatories’ view, turn Article 11 into a permanent alternative to Article 89. An exceptional and contested act is not the same as an accepted constitutional procedure.
The proposed referendum could also be stopped before polling day. The constitutionalists point to legal practice under which the Constitutional Council can intervene before a presidential decree takes effect. If a proposed vote exceeded the scope of Article 11 or sought, in substance, to change the Constitution, the council could block it.
That would move the first battle away from the electorate and into the constitutional system. The immediate question would not be whether French voters supported national priority, stricter immigration rules or a hijab ban. It would be whether the president had the authority to put those measures to them under Article 11 at all.
National priority meets EU law
Even if the domestic obstacle were overcome, a second legal dispute could follow. Giving French citizens systematic preference in employment, social housing or access to benefits would raise questions under the EU principle of free movement for people and workers.
EU law restricts the ability of member states to disadvantage citizens of other EU countries because of their nationality in areas covered by the treaties. France has room to shape parts of its social and migration policy, but that room exists within a wider legal framework. A national referendum cannot, by itself, release France from obligations it has accepted under the EU treaties.
If France adopted rules that conflicted with those obligations, the European Commission or other parties entitled to bring a challenge could use the EU legal system. The dispute might ultimately reach the Court of Justice of the European Union. Infringement proceedings and financial penalties are possible consequences, but they would depend on the precise wording of the measures, how they were enforced and the decisions of the relevant institutions.
Those outcomes would not follow automatically from a referendum. Nor would every tougher immigration measure necessarily breach EU law. The legal position would depend on the specific policy, the people affected and the way it was applied. The constitutionalists’ warning is that a popular mandate would not remove those limits.
Migration policy also involves questions distinct from the rights of EU citizens. France retains authority over some aspects of entry, residence and social policy, but it must exercise that authority within EU rules and its other international commitments. A referendum can set a political direction; it cannot simply erase the legal framework in which that direction has to operate.
The wider European risk
The appeal raises a broader concern about what would happen if a French government treated a referendum result as permission to apply selected EU rules only when politically convenient. Eurosceptic and populist governments elsewhere could cite the same logic, arguing that a national vote entitled them to disregard unpopular European obligations.
That scenario would not automatically paralyse the Schengen area. But nationality-based restrictions on work, benefits or residence could put additional pressure on the arrangements that allow people to travel, work and live across much of Europe without routine checks at internal borders.
The concern is therefore not only that France might enter a dispute with Brussels. It is that each national exception could weaken the consistent application of EU law. The more governments treat domestic referendums as a licence to suspend common rules, the harder it becomes to maintain a system based on shared obligations rather than selective compliance.
For Le Pen, the referendum proposal offers a direct route around a Parliament that may be hostile or unable to produce a majority for her priorities. For the 110 constitutional specialists, it confuses popular legitimacy with constitutional authority. The people may approve a political programme, they argue, but the president must still use the procedure the Constitution prescribes for changing itself.
The first test would therefore come before the proposed policies reached the voters. It would be whether France’s Constitutional Council allowed Article 11 to be used in this way. If that barrier were crossed, the substance of the resulting measures could open a second confrontation, this time with the legal order of the European Union.
Read Public Sénat’s report on the constitutionalists’ appeal.
