Bardella and Patriots face uphill struggle in legal cordon sanitaire challenge

Justice takes longer than political feuds, and a challenge led by French MEP and President of the far-right Patriots for Europe group Jordan Bardella stands little chance of winning, and less chance of being decided before the end of the current Parliamentary mandate, according to legal experts.

Rassemblement National's Bardella and fellow Patriots’ MEP Hungarian Kinga Gál filed a complaint to the European Court of Justice last week against their political groups’ exclusion through the so-called 'cordon sanitaire' from leading positions at the European Parliament.

The cordon sanitaire is the process through which centrist pro-European groups effectively club together to deny the right-wing fringe top jobs such as presidencies or vice-presidencies of the European Parliament’s committees. The practice has historically excluded lawmakers from far-right parties such as France's National Rally, Viktor Orbán's Fidesz and Matteo Salvini’s Lega from power roles in the Parliament.

As a result of the practice the Patriots failed to secure high level positions despite achieving good results at last June’s elections and becoming the Parliament's third largest group.

Time won’t be on the Patriots' side, as the tribunal might not decide over the case before two to three years, an appeal before the Court of Justice adding then a couple of years. “The action won’t be finished by the end of this Parliament’s terms of office,” predicts Marianne Dony from the Center for European Law of the Belgian University ULB, “and in any case I am sceptical of Bardella’s chances of winning”.

It's a problem that there’s no legal evidence of the votes which excluded the Patriots, according to Dony, who said: “You can only see the vote in the minutes of the [parliamentary] meetings, there’s no legal act that could serve as a legal ground when complaining before the European judges.”

“Even if such an act existed there's little chance the judges will consider that the fact of not getting leadership positions represents a legal prejudice,” she added.

The Rules of procedure of the European Parliament themselves give only a narrow leeway for French Rassemblement National chief  Bardella and Hungarian Fidezs' Gál, as they only provide for respect of “an overall fair representation of political views” during the election of candidates to leadership positions at the European Parliament.

In a statement, the Patriots said the cordon sanitaire violates several provisions of these internal rules of the Parliament related to the political diversity of each committee.

“The Rules of procedure are too vague. On top of that the European Conservatives and Reformists Party (ECR) managed to get elected to some of those positions. So the political balance of the European Parliament is respected as they [ECR] are regarded as eurosceptic,” Dony adds.

Whether or not to keep the ECR - which includes Italian prime minister Georgia Meloni's Fratelli d'Italia - outside the cordon sanitaire caused much debate among more pro-European MEPs. However in July the group managed to secure three committee presidencies and nine vice presidencies.

“The Court might end telling Bardella and Gál that this is a political feud they have to settle by themselves,” said Olivier Costa, expert in European governance from the French Centre for Political Research at Sciences Po ( CEVIPOF).

There have been some past legal battles around the constitution of political groups that the European Court of Justice refused to consider and which were settled through political deals, according to Costa.

“The cordon sanitaire is a political custom which is not hard law,”  said Costa. He pointed out that the Parliament has competence to decide over its internal organisation adding: “It is the sole master on board."

In a worst-case scenario the Parliament could even withdraw mention of political balance from its rules of procedure, according to Costa. “But this is a purely internal decision. There is nothing in the treaty about it," he said.

The Patriots argue that the decision to exclude its members from the committees' top jobs does not abide by the EU treaty and the Charter on fundamental rights and their provisions regarding representative democracy and discriminations based on political ground.

If the Court ruled in favour of Bardella and Gál, “it would be a real thunderclap in the Parliament’s sky”, Costa warned.

This article has been updated after the Patriots for Europe issued a statement.