FRANCE Law and Practice Contributed by: Grégoire Bertrou and Delphine Grimond, Willkie Farr & Gallagher LLP
foregone earnings, were generally not eligible for collective compensation); • moral (non-pecuniary) damage, including violations of privacy or acts of discrimination. Under the prior regime, this category of harm could be addressed only in specific legal contexts (for instance, data protection law allowed for the compensation of moral damages, whereas consumer protection law did not); and • physical injury, such as harm resulting from phar- maceuticals or exposure to hazardous substances. One key exception remains in the field of public health. In this domain, standing is still restricted to cases involving breaches by producers, suppliers, or users of health-related products, as defined by Arti- cle L. 5311-1 of the French Public Health Code. This indicates that while the regime has been liberalised, certain limitations persist where public health is con- cerned. Civil Fines and the Notion of “Profitable Wrongdoing” (Faute Lucrative) One of the most innovative measures introduced by the 2025 reform is the establishment of a new civil penalty regime under Article 1254 of the French Civil Code, empowering civil and administrative courts to impose non-insurable fines for deliberate, profit-driv- en misconduct ( faute lucrative ). This new mechanism – formalised under Article 1256 of the Civil Code, immediately following the gener- al provisions on tort liability – is not limited to class actions. It is designed to apply more broadly, in any legal proceeding, provided that the Public Prosecutor or the Government initiates the action and that the statutory conditions are met. The civil fine may be imposed where two criteria are fulfilled: • the defendant deliberately committed a breach with the intention of obtaining an undue financial benefit or saving; and • the misconduct caused harm to multiple individu- als or legal entities placed in similar situations.
The original 2019 draft of the reform required the mis- conduct to rise to the level of a faute lourde (gross fault). However, in its final form, the law instead requires that the breach be deliberate – that is, the act must have been intentional, though it is not necessary to show that the defendant intended to cause harm [see E. Dreyer, La sanction de la faute lucrative par l’amende civile , Recueil Dalloz, 2017, p.1136, §§3-6]. This concept of intentional fault, well-rooted in French criminal law, was previously foreign to civil liability. Notably, the benefit sought by the wrongdoer need not have been actually obtained. It suffices that the act was committed with a view to gaining an undue advantage. Claimants are therefore not required to prove that the objective was achieved. In terms of amount, the fine must be proportionate to both:
• the seriousness of the fault, and • the benefit obtained or intended.
The initial draft also required the fine to be proportion- ate to the wrongdoer’s financial capacity, but this third criterion was ultimately removed from the definition of faute lucrative . Nevertheless, it may still influence the judge’s discretion when determining the final amount. The use of “and” rather than “or” in the proportional- ity test – requiring consideration of both the gravity of the fault and the benefit gained – may lead to difficul- ties in application. In most cases, the logic holds: the more serious the fault, the greater the benefit, and the higher the fine. But what happens if the fault is minor yet the profit is significant? Or if the fault is severe, but the gain is limited? These ambiguities may give rise to interpretive chal- lenges and will require careful judicial balancing, mak- ing the practical application of this provision an impor- tant point to watch in the coming years. The maximum amount of the fine is calibrated accord- ing to the nature of the defendant: • up to twice the undue gain for natural persons; • up to five times the gain for legal entities.
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