🔎 Close-up on punitive damages recently enacted in French law
1️⃣ The background is that Civil fines / punitive damages were, for the first time, added to French law, in Civil Code, article 1254, by Act no. 2025-391 of April 30, 2025.
2️⃣ The scope of punitive damages leads to their application to:
– only traders in the course of their business,
– at the sole request of French prosecutors,
– in any civil, criminal and administrative proceedings (then possibly separately from class action proceedings).
3️⃣ The following requirements must be met:
– the trader must deliberately misbehave to obtain an undue profit or saving, known as “lucrative fault”, and
– he has to cause serial damage.
This is, obviously, the case when such a trader commits intentional torts which cause serial damage (without necessarily the specific intent to do so).
The question arises, however, as to whether that can also apply when he adopts unintentional misconduct. Indeed, by comparison with French criminal law, when indirectly causing a fatal or non-fatal accident, an accused is supposed to deliberately misbehave to be guilty of manslaughter / criminal negligence. Hence, the similarity to wanton / willful misconduct.
4️⃣ The following effects ensue:
– They amount, at most, to twice the profit made for individuals, and 5 times for business entities, and their concurrent application with criminal or administrative fines may not exceed these limits.
– The French state is the beneficiary.
– This is uninsurable by law.
