In the field of art law, recent legal developments in France are prompting a fresh perspective on works of art – be they a medieval tapestry, an African mask, a sacred drum, an ancient statue or a manuscript – which can crystallise issues of sovereignty, memory, reparation and diplomatic cooperation. The decision of the French Conseil d’Etat regarding the loan of the Bayeux Tapestry to the United Kingdom on 5 June 20261 and Act No. 2026-351 of 9 May 2026 on the restitution of cultural property that has been unlawfully appropriated clearly demonstrate this.
In the case of the Bayeux Tapestry, the debate might, at first glance, have seemed to be primarily about heritage. Should this fragile work, which has been preserved in France for centuries2, be moved to be exhibited at the British Museum, or not? Can it be moved without risking considerable damage? Serious concerns could be raised: its state of preservation, transport conditions, the liability of the State as owner, and the protection of an exceptional cultural asset. Several studies initially expressed reservations about the feasibility of the operation, in 2021 and 2022; a more recent study has validated the approach.
Following an application by a heritage protection organisation, the Council of State did not examine the substance of the arguments put forward by opponents of the operation. It ruled that the decision to lend the artefact, announced by the President of the Republic during a state visit to the United Kingdom as part of Franco-British bilateral relations3, could not be viewed in isolation from the conduct of France’s international policy. In other words, the work of art has here become a diplomatic instrument within the framework of what the public rapporteur, Charline Nicolas, referred to in her conclusions as the ‘diplomacy of national treasures’. The loan is not merely a museum-related matter; it forms part of a political, symbolic and historical gesture between two States. The Minister for Culture expressly stated this during a press conference on the loan of the tapestry on 3 June 2026.
The reasoning is open to criticism. The category of governmental acts (‘actes de gouvernement’ in the French administrative law sense), which are, in principle, beyond the jurisdiction of any court, is regarded as a residual one, including in the context of international relations. For several decades, the general trend in administrative law has been towards a narrowing of these jurisdictional immunities and, according to Pascal Binczak, this category ‘has been eroded over time’4 : Whenever possible, the administrative court seeks out acts that are separate from international relations or the conduct of public authorities, in order to exercise at least a minimal review of legality. Such separate acts clearly correspond to those having no bearing on international policy (see, in this regard, the observations of Nicole Questiaux on the decision Conseil d’Etat, ass., 30 March 1966, Sté Ignazo Messina, RD publ. 1966, p. 789) or, at the very least, which have only negligible implications (CE, sect., 22 Dec. 1978, Mr Vo Thanh Nghia).
A number of recent decisions, at least one each year5, showed, however, that the category of governmental acts had not disappeared from the sphere of the government’s international action.
In the Bayeux Tapestry case, the Council of State adopted a broad interpretation of the link with international relations. The mere fact that the loan had been announced in a diplomatic context and presented as contributing to Franco-British rapprochement was sufficient for the court to decline to hear the case.
This is where the decision raises questions. For the contested act did not concern the conclusion of a treaty or a related act, the recognition of a State, a military operation, a joint declaration between States or the conduct of diplomatic negotiations. In very practical terms, it was ‘merely’ a matter of moving a cultural object belonging to the public domain (Article L. 2112-1 of the General Code on the Property of Public Bodies), which is inalienable under French public property law (Article L. 622-13 of the Heritage Code) and is inalienable (Article L. 622-14), and which is subject to requirements regarding conservation, integrity and scientific protection. It could therefore be argued that there was a separable administrative decision: that of materially authorising the loan and transport of a heritage object of exceptional fragility. Despite the exceptional – and particularly fragile – nature of the tapestry, the decision forms part of the management of a public collection (the public domain of movable cultural property) and is much less easily equated with an act of foreign policy… In fact, the Heritage Code contains several provisions applicable to works belonging to the State when it comes to lending them for a temporary exhibition. In the case of a work classified as a historic monument, such as the Bayeux Tapestry, the legislative provisions of the Code entail the application of the regime governing the temporary export of national treasures, as set out in Article L. 111-7 of the Heritage Code, and administrative decisions taken on this basis may be challenged before the administrative court.6. It will, moreover, be interesting to see what conclusions the administrative court draws from the Council of State’s decision should the matter be referred to him regarding the legality of subsequent acts, particularly with regard to the technical conditions governing the granting of the loan. It is worth noting that the public rapporteur, an independent member of the Conseil d’État who gives an advisory opinion on the case, urged the Litigation Section to open this avenue, which would have mitigated ‘the lack of judicial review of the decision in dispute’. It must be noted that the decision makes no mention of this, as the Council of State does not always wish to commit itself for the future.
For the time being, therefore, it was not only on the grounds of the nature of the act or its effects that the Council of State declined jurisdiction, but because of the circumstances surrounding the President of the Republic’s announcement of the loan. Although the reasoning is somewhat theoretical, one might imagine that if the Bayeux Museum had entered into a partnership with the British Museum, approved by the Minister for Culture, the legality of the act would have been reviewed by the administrative court. However, as the announcement was made by the Head of State, with a view to fostering closer ties with the United Kingdom, the act became inextricably linked to the conduct of France’s diplomatic relations. This decision thus illustrates that the circumstances surrounding the announcement of a decision can have a retroactive effect on how it is classified by the court.
By broadly characterising the operation as an act inseparable from international relations, the administrative court considers that a cultural gesture, once it has been given diplomatic significance, may be exempt from judicial review. Cultural diplomacy risks becoming a smokescreen. The fact remains, however, that works of art are not merely symbols at the disposal of foreign policy; they are also public assets, forming part of the heritage of all French citizens, entrusted to institutions, protected by regulations, and sometimes vulnerable in their very physical form. Faced with a choice between diplomatic sovereignty and heritage considerations, the Council of State has clearly prioritised the former. It is not unreasonable to suggest that its review could have been carried out whilst remaining limited, prudent and respectful of the executive’s margin of discretion, particularly regarding the technical conditions of the loan.
The Restitution Act of 9 May 2026 is of a completely different nature. For a long time, French law made restitution very difficult due to the principle of the inalienability of public collections. A work that had entered the public domain could only be removed from it by means of a specific law. Each case of restitution therefore required an ad hoc piece of legislation, which was complex to pass and required careful diplomatic handling.
The new law establishes a general framework and inserts a Section 4 (Articles L.115–10 to L.115–16) into the chapter ‘ Removal of a cultural object from public collections ’ of the Heritage Code, expressly derogating from the the principle of inalienability (see Article L.3111‑1 of the CG3P) in order to allow, subject to certain conditions, the return to a State. It allows cultural property claimed by a foreign State to be removed from the public domain where it has been unlawfully appropriated, in particular through theft, looting, forced transfer or a gift obtained under duress. The period specified, precise to the day — from 20 November 1815 to 23 April 1972 — is not arbitrary: it covers a large part of the movement of objects linked to conquests, colonial situations, excavations, expeditions and relationships of domination that have enriched European collections.
This text does not make restitution an automatic process. It sets out a structured procedure: a request made by a State, followed by a scientific assessment7, serious, specific and consistent evidence of misappropriation, an opinion from a national commission, followed by a decree of the Council of State declaring the item to be removed from the public domain.
The legislator is thus seeking to reconcile three requirements: the protection of public collections, rigorous provenance checks, and the need for a diplomatic response to requests from abroad.
This law also reflects a shift in terminology. We no longer speak merely of ‘removal from public collections’. We speak of a people reclaiming fundamental elements of their heritage. It is a powerful phrase.
It means that certain objects are not merely works of art to be admired; they are also the physical fragments of a collective history, one that is sometimes painful and sometimes interrupted by violence. Their restitution can be an act of symbolic justice, but also an act of foreign policy.
Restitution raises sensitive questions: who is entitled to make a claim? The partner state, the community of origin, the descendants, or a cultural institution? How can one prove unlawful appropriation when the archives are incomplete, biased or produced by the powers that acquired the objects? What should be done when the same artefact is claimed by several states or groups of people? How can we prevent cultural diplomacy from becoming a form of diplomacy of convenience, dependent on power dynamics, official visits or the priorities of the moment?
These questions merely serve to confirm the key point: works of art have become the subject of international negotiation. They compel states to reconcile heritage law, public law, colonial history, cultural diplomacy and museum ethics. They also reveal a profound tension between two conceptions of the museum: the universal museum, which preserves and exhibits on behalf of humanity, and the situated museum, which recognises that works have an origin, a history, and sometimes a wound.
But then, given the Council of State’s decision on the loan of the Bayeux Tapestry, should we consider that any decision taken pursuant to the Act of 9 May 2026 – such as a decree removing an item from the public domain or a refusal to return it – will fall within the category of governmental acts? If that were the case – and this seems to follow quite naturally from the recent decision of the Litigation Section – the Council of State would thus have opened a new and potentially very significant chapter in the category of administrative acts that are beyond the jurisdiction of any court on the grounds that they concern international relations.
In the case of the Bayeux Tapestry, the loan of a major heritage artefact is treated as an act of diplomatic sovereignty, at the cost of removing all judicial oversight over the conditions for the protection of heritage. With the law on restitution, France recognises that the inalienability of collections can no longer be invoked to prevent the return of objects acquired under unlawful circumstances. In one case, the artwork is sent in the name of relations between states; in the other, it is returned in the name of a history that needs to be set right. In both cases, the work of art ceases to be static: it circulates, returns, departs again, and almost becomes a subject of international relations in its own right.
Works of art can heal, soothe, provoke, bring people together or drive them apart. They are no longer merely objects to be preserved, but political symbols, fragments of memory and instruments of dialogue between states. More than ever, they form part of the language of international relations.
It remains for the judge responsible for assessing legality to find their place within this shifting landscape, where heritage protection, diplomatic considerations and the demand for redress intersect. For the time being, this challenge remains largely unresolved.
1 Litigation Section, No. 508776, to be published in the Lebon collection(http://www.conseil-etat.fr/fr/arianeweb/CE/decision/2026-06-05/508776)
2 The tapestry known as the ‘Queen Matilda Tapestry’ is an 11th-century embroidered linen cloth, nearly 70 metres long, that tells the story of the Norman Conquest of England in 1066. It is one of the most famous medieval artworks in Europe and is especially important because it combines political propaganda, historical narrative and exceptional craftsmanship. It has been listed as a historic monument since 1840. It belongs to the State and is on display at the Bayeux Museum.
3 The loan of the Bayeux Tapestry was first raised by Emmanuel Macron at the Franco-British summit in Sandhurst in January 2018. It was then formally announced on 8 July 2025, during a state visit to the United Kingdom, with a view to an exhibition at the British Museum from September 2026 to June 2027, as part of efforts to strengthen Franco-British bilateral relations.
4 Répertoire de contentieux administratif Dalloz, Acte de gouvernement.
5 See 27 May 2026, No. 510773, regarding cooperation with an international court; 26 September 2025, No. 488335, regarding a position expressed within the framework of the Indian Ocean Tuna Commission; 24 October 2024, No. 465144, regarding diplomatic protection; 24 February 2023, No. 463543, regarding a Franco-Italian declaration on the Fréjus Tunnel; 27 January 2023, No. 436098, regarding authorisations for the export of military equipment.
6 Voir par exemple : 31 juillet 1992, n°111758, au recueil Lebon.
7 A scientific committee is set up in consultation with the requesting State; the restitution is the subject of a report, followed by an opinion from the National Commission for the Restitution of Cultural Property.
