The Availability of Punitive Damages in Europe: Growing Trend or Nonexistent Concept?

The Punishment of Theft and Other Trespasses If any man steal an ox or a sheep, and kill or sell it: he shall restore five oxen for one ox, and four sheep for one sheep. If that which he stole be found with him, alive, either ox, or ass, or sheep: he shall restore double. If a man deliver money, or any vessel unto his friend to keep, and they be stolen away from him that received them: if the thief be found, he shall restore double. To do any fraud, either in ox, or in ass, or sheep, or raiment, or any thing that may bring damage: the cause of both parties shall come to the gods: and if they give judgment, he shall restore double to his neighbour. (2) FORMERLY united in the same notion of private vengeance, civil and criminal liability progressively separated into two different subject matters: civil litigation and criminal law. The purpose of civil litigation being the compensation of the damage suffered by the victim while only the State could protect public order by punishing and preventing criminal offenses. If civil liability still has the role of compensating both in Civil Law and in Common Law countries, Common Law countries have conceived an institution halfway between Civil Law and Criminal Law, putting into question the separation between them. Thus, also known as exemplary are awarded in addition to actual damages when the defendant acted with recklessness, malice or deceit, by way of penalizing the wrongdoer or making an example to others. (3) The institution of punitive damages appeared in England at the end of the eighteenth century (the first case dates to 1763). It then crossed the Atlantic Ocean and became an established part of the law of the United States, and at the same time, from England, it spread through all the countries of the Commonwealth. Punitive damages exist in Australia, New Zealand, South Africa, Canada. Despite the fact that they are criticized, limited, and controlled, their existence remains. On the contrary, punitive damages play an important role, especially in the United States, where they can be exceptionally high, notably in antitrust cases in the form of multiple damages, or in product liability cases. Globalization, and in particular the development of business relations between Europe and the United States, has raised the issue of the availability of punitive damages in Europe and especially the existence or the admission of this institution in the different legal systems of the European countries. (4) Therefore, we will address the question of the availability of punitive damages both in the domestic courts of the European countries and in the Community legislation. 1. Punitive Damages in Contract or Tort Actions in the Domestic Courts of the European Community Europe is divided into two different legal systems. The system of Common Law, exported by England throughout the Commonwealth, and the system of Civil Law, also called continental law. These two legal systems are so different that it is impossible to answer the question of the availability of punitive damages in Europe as a whole. The availability of punitive damages in Civil Law countries (1.1) will therefore be discussed, before studying the case of England and Wales (1.2). 1.1 Punitive Damages in Civil Law Countries When answering the question of whether punitive damages are allowed in the legal systems of the European countries, one first has to examine if such a concept already exists in their national laws. If it does not actually exist nor can a similar concept be found, then it is useful to determine whether or not the Private International Law rules of the European countries would accept the introduction of punitive damages. 1.1.1 Domestic Law The concept of punitive damages does not exist in Civil Law countries and therefore one can say that it is not available as a remedy; however, given the development of international trade and consequently international commercial litigation, the judges in the courts of the European countries have found themselves faced with U. …

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