In a wave of legislative reform, Belgium and France reflect “l’esprit du temps,” systematizing civil liability in light of the current state of their societies and their aspirations for the coming years. As Stefano Rodotà emphasized in one of his latest writings, civil liability acts as an alarm bell. After all, it plays the important role of serving as a repository for all the dysfunctions of a given legal system. Nineteenth-century codes are snapshots of a civil liability system exclusively tied to the pathologies of property and contractual default. However, today it encompasses the effects of violations of multiple and complex property-related situations, as well as fundamental rights and personality rights, not to mention the harmful consequences of the use of emerging digital technologies at all levels.
In both reforms, the primacy of the compensatory function of damages and the corresponding principle of full reparation are maintained. Nevertheless, in contemporary society—which is pluralistic and complex—damages no longer have a purely individual and property-based nature; rather, they manifest as meta-individual, non-pecuniary, sometimes anonymous, catastrophic, and irreparable. To prevent the haphazard application of judicial responses to new challenges—which cannot be resolved by the classic compensatory function—from prevailing, it is necessary to understand civil liability as a system for managing risks and restoring a balance that has been unjustly disrupted. Thus, in a two-pronged analysis, beyond the containment of damages, there is room for curbing unlawful conduct through the introduction not only of the preventive function but also—as is of interest here—of the restitutory and punitive functions, which in Belgium and France are codified under the concept of “faute lucrative.”
The new Book 6 of the Belgian Civil Code entered into force on January 1, 2025. It replaces Articles 1382 through 1386 of the former Napoleonic Code, with the aim of modernizing, clarifying, and systematizing tort liability. In summary, the original six articles have been expanded to 55 articles, with the aim of codifying prevailing case law and legal doctrine while incorporating social developments. By reducing legal uncertainty, this codification seeks to balance the freedom of private individuals with broad protection for victims.
Specifically regarding the issue at hand, let us imagine that a media outlet publishes photos of a person without their consent, thereby violating their right to one’s own image and, depending on the content of the publication, their reputation and/or privacy. In the case of a particular public figure, such a publication is likely to generate profits for the perpetrator of the violation, notably through advertising revenue or increased sales. However, traditional compensation—based on the moral damage and/or economic harm suffered by the victim—often amounts to a modest sum compared to the profit obtained. Thus, the legislature recognizes that in certain situations, the principle of full compensation for damages lacks a deterrent effect, allowing the offender to speculate on the profits they will obtain from their conduct.
In this context, the Belgian Civil Code reform took the following position:
Art. 6.31—Objectives and Forms of Redress: § 1. The purpose of redress for pecuniary damage is to restore the injured party to the situation in which they would have been had the event giving rise to liability not occurred. Compensation for non-pecuniary damages is intended to provide the injured party with fair and adequate compensation for such damages. § 2. Compensation is provided in kind or in the form of damages. These forms of compensation may be applied simultaneously, if necessary, to ensure full compensation for the harm. § 3. When the liable party has, intentionally and for the purpose of obtaining profit, violated a personality right of the injured party or infringed upon their honor or reputation, the judge may award the injured party supplementary damages corresponding to all or part of the net profit obtained by the liable party.1
As can be inferred from § 3 of Art. 6.31, the restitution of unlawful profits falls within the scope of civil liability. Disgorgement was chosen as supplementary damages for cases involving violations of existential rights. That is to say, the removal of undue gains is specifically permitted in judgments awarding non-pecuniary damages, arising in special cases where there is intent to obtain economic benefits (rather than the intent to cause harm) in the infringement of personality rights. The rule interacts with various regulations on the protection of intangible property and, in particular, with European Union Directive 2016/432, which provides for restitutionary remedies as an alternative to compensation for pecuniary damage, in the context of trade secret protection, thereby strengthening private enforcement.
In an ideal world, the adage “tort must not pay” would apply. Unfortunately, unlawful acts not only pay off but are highly lucrative. As a response to the phenomenon of profitable wrongdoing, the new rule is commendable from the perspective of legal certainty, as it refines non-pecuniary damages, preserving only their compensatory essence, grounded in the need to restore the victim to a situation similar to that which would have existed had the harm not occurred. Thus, any need to sanction the offender’s unlawful conduct—aimed at obtaining undue profit—will be the subject of a supplementary section of the judgment, with its own reasoning, capable of meeting the statutory requirements, thereby affording both the victim and the offender the opportunity to challenge the restitutionary damages themselves, or, alternatively, their amount, regardless of any discussion regarding the prior award for non-pecuniary damages.
Furthermore, with regard to France, although most of the extensive overhaul of civil liability is still under discussion in Parliament, the reform approved in 2025 addresses the issue of multifunctionality in an even more ambitious manner than in Belgium. Article 1.254 of the Code, located in Chapter V—entitled “Civil Sanctions in Cases of Intentional Conduct Causing Serial Damage”—has been in effect since May 3, 2025, based on Law 2025-391 (LOI DDADUE), which contains various provisions adapting national law to European Union law in the areas of the economy, finance, the environment, energy, transportation, health, and the movement of persons.
Art. 1.254: When a person is found liable for a breach of legal or contractual obligations related to their professional activity, the judge may, at the request of the Public Prosecutor's Office before the courts of the judicial branch, or at the request of the Government before the courts of the administrative branch, and by means of a specially reasoned decision, order that person to pay a civil penalty, the proceeds of which shall be allocated to a fund intended to finance class-action lawsuits. An order to pay a civil penalty may only be issued if the following conditions are met: 1. The party causing the harm deliberately committed a wrongful act with the intent to obtain an undue gain or savings; 2. The violation found caused one or more instances of harm to various individuals or legal entities placed in a similar situation. The amount of the penalty shall be proportional to the severity of the violation committed and the benefit obtained by the perpetrator of the violation. If the perpetrator is an individual, the amount of the penalty may not exceed twice the profit obtained. If the perpetrator is a legal entity, the amount may not exceed five times the amount of the profit obtained. When a civil penalty may be imposed in addition to an administrative or criminal fine imposed on the offender for the same facts, the total amount of the penalties may not exceed the highest applicable legal limit. The risk of being ordered to pay a civil penalty is not insurable.3
Although civil liability under French law has historically been based on the exclusive compensatory function and the principle of full reparation, the recent introduction of a punitive approach in the Civil Code marks a significant development in the law. In fact, the new Article 1254 of the Civil Code establishes a civil penalty applicable to willful conduct that causes serial damages through a mechanism of multiple damages, varying depending on whether the perpetrator is a natural person or a legal entity that reaps illicit profits.
The provision establishes an autonomous sanction based on the punishment of fraudulent conduct deemed “profitable.” Henceforth, any unlawful conduct that generates profits and causes serial damages will likely result in the imposition of a civil sanction, the proceeds of which will be used to fund class-action lawsuits. The scope of the article is intended to apply not only to B2C relationships but also to B2B relationships. Thus, any person deemed responsible for a breach of a legal obligation in the course of their professional activities may be subject to this penalty in the event of serial damages.
Although framed within the context of tort liability, the rule may raise the question of whether the traditional distinction between contractual and tort liability is being blurred. On this point, the text is clear: the civil penalty applies in cases of “breach of legal or contractual obligations related to one’s professional activity,” which suggests that its scope encompasses both contractual and tort liability.
The first condition for imposing a civil penalty is the establishment of willful misconduct for profit, interpreted as follows: “1. The party causing the damage deliberately engaged in willful misconduct with the aim of obtaining an undue gain or saving;” This implies, therefore, that negligent conduct, regardless of its severity, would be exempt from this regime. This highlights the legislature’s intent to adopt a deterrent approach rather than restitutionary damages per se, since the latter is not tied to the offender’s intent but rather to the profit generated or, at the very least, the savings in expenses resulting from the commission of the tort.
Furthermore, and cumulatively, the violation must have caused serial damages: “2. The observed violation caused one or more losses to several individuals or legal entities in a similar situation.” This condition aims to identify a systemic violation, the effects of which are significant and repeated. By way of illustration, this refers to violations in the field of competition law or in matters of compliance and due diligence. Once again, emphasis is placed on the educational function of civil liability, given that the restitution of undue gains (disgorgement) or the remedy of a reasonable fee (payment of a reasonable price for the infringement of another’s rights) applies to a single unlawful act, regardless of whether the same actor has repeated it.
The amount of the penalty will be proportional to the severity of the violation and the profit derived from it. The text provides for a variable limit: twice the profit obtained for an individual and five times the profit for a legal entity. These amounts clearly reflect the deterrent nature of the mechanism, considering that if the legislature’s intention had been to establish a purely restitutory remedy, the premise would have been that the maximum amount should be the profit obtained by the offender, but never a multiple thereof. The civil penalty reflects the severity of the offense, ensuring a meaningful response to economically motivated reprehensible conduct.
It should be noted that victims of serial offenses do not have the authority to initiate proceedings regarding the imposition of this civil sanction. In fact, as provided for in Article 1.254 of the Civil Code, the penalty may be imposed by a judge at the request of the Public Prosecutor's Office (in the judicial system) or the government (in the administrative system) and by a specially reasoned decision.
Furthermore, the sanction is not insurable, confirming its punitive nature. By prohibiting risk sharing through an insurance contract, the legislature intends to hold the perpetrator of the offense fully liable, subjecting them to a personal and inescapable penalty, and preventing any contractual arrangements by economic agents that could dilute or outsource the deterrent effects of the aggravated sentence.
The new provisions stipulate that the proceeds from the civil penalty must be donated to funds for financing class-action lawsuits.
It follows from the foregoing that the new Article 1254 of the French Civil Code reconciles the traditional compensatory function with a distinct punitive function, the application of which requires the presence of profit-driven wrongdoing. This is a response aimed at large-scale fraudulent economic conduct. Therefore, socially reprehensible conduct that is not motivated by economic gain is not subject to this corrective sanction. The introduction of a civil sanction of a deterrent nature reveals the tensions inherent in civil liability, which oscillates between its necessary evolution and respect for its fundamental principles, foremost among which is the principle of full reparation.
Despite the evident distinctions regarding the criteria for the application and targeting of sanctions, the legislative developments originating from two civil law jurisdictions—whose normative stability is inherent to their very nature—indicate that—as the Italian Supreme Court of Cassation4 recently established —in pluralistic and complex societies, civil liability can accommodate a healthy coexistence between the compensatory function and non-compensatory remedies, provided that well-defined objective criteria draw clear boundaries, thereby redefining the principle of full compensation.
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- Art. 6.31 Objectives and Forms of Redress § 1. Redress for pecuniary damage aims to place the injured party in the situation in which they would have been had the event giving rise to liability not occurred. Compensation for non-pecuniary damage is intended to provide the injured party with fair and adequate compensation for such damage. § 2. Compensation is provided in kind or in the form of damages. These forms of relief may be applied simultaneously if necessary to ensure full compensation for the damage. § 3. Where the liable party has, intentionally and for the purpose of making a profit, violated a personality right of the injured party or infringed upon their honor or reputation, the court may award the injured party additional compensation equal to all or part of the net profit realized by the liable party.
- Art. 14: In determining the compensation referred to in paragraph 1, the competent judicial authorities shall take into account all relevant factors, such as the negative economic consequences, including the loss of profits, suffered by the injured party, the unfair profits made by the infringer, and, in appropriate cases, factors other than economic ones, such as the moral damages caused to the trade secret owner by the unlawful acquisition, use, or disclosure of the trade secret. Alternatively, the competent judicial authorities may set the damages as a lump sum based on factors such as, at a minimum, the amount of remuneration or royalties that would have been earned had the infringer sought authorization to use the trade secret in question.
- Chapter V: Article 1.254: When a person is found liable for a breach of legal or contractual obligations related to their professional activity, the judge may, at the request of the public prosecutor before the courts of the judicial branch, or at the request of the Government before the courts of the administrative branch, and by a specially reasoned decision, order that person to pay a civil penalty, the proceeds of which are allocated to a fund dedicated to financing class-action lawsuits. An order to pay a civil penalty may be issued only if the following conditions are met: 1. The party causing the damage deliberately committed a wrongful act with the intent to obtain an undue gain or savings; 2. The established breach caused one or more instances of harm to several natural or legal persons in a similar situation. The amount of the penalty shall be proportionate to the severity of the fault committed and to the benefit derived by the perpetrator. If the perpetrator is a natural person, this amount may not exceed twice the profit realized. If the perpetrator is a legal entity, this amount may not exceed five times the amount of the profit realized. When a civil penalty may be imposed in addition to an administrative or criminal fine imposed on the perpetrator of the violation for the same facts, the total amount of the fines imposed shall not exceed the highest statutory maximum. The risk of being ordered to pay a civil penalty is not insurable.
- Civil Cassation, Joint Divisions, Judgment No. 16601 of July 5, 2017: “Is it possible, under the Italian legal system, to provide for the payment of a sum greater than that strictly necessary to compensate for the damage? The monofunctional nature of civil liability must be overcome, since alongside its predominant and primary compensatory function, a multifunctional nature is also recognized that extends into other dimensions, among which the main ones are preventive and punitive, which are not ontologically incompatible with the Italian legal system and, above all, respond to a requirement for the effectiveness of legal protection. An order to pay a sum greater than that strictly necessary to restore the status quo ante will be issued only if there is an ad hoc provision whose specific circumstances provide for a punitive element.”