Classic group proceedings are based on the principle of representation, which means that during the proceedings, it is the group representative, carrying out the group’s interests, who acts on behalf of the group.
In contrast, in representative class actions – the claimant may only be a so-called qualified entity.
The legitimacy of these entities is exclusive, which means that the group itself, without a representative or a qualified entity, cannot initiate a group (class) action, as only the group representative or the qualified entity is entitled (has the legal capacity) to do so.
An action in cases on establishing the use of practices infringing the general interests of consumers may only be brought by a qualified entity who does not act on behalf of a specific group, i.e. a group consisting of named individuals, but can be said to “act on behalf of” the general interests of all consumers affected by the practice in question.
The representative of the group and the qualified entity are two different entities – the Act distinguishes between these entities and regulates their status separately (although the structure itself is similar, the provisions on the representative do not apply to the qualified entity and vice versa). For this reason, the status of the representative and the status of qualified entity should be discussed separately.
The representative participates in the proceedings under their own name but on behalf of all the group members, simultaneously pursuing their own claims (barring situations where this function is performed by the consumer ombudsman or the Financial Ombudsman) as well as those of the remaining group members.
The representative may therefore be either a member of the group or a district (municipal) consumer ombudsman in cases concerning the protection of consumer interests.
In addition, since the Amendment no. 3, which entered into force on 16 March 2023, the group representative may be the Financial Ombudsman – in the scope of claims:
In contrast, the qualified entity never pursues its own claims. When bringing a class action in cases concerning claims related to practices that infringe the general interests of consumers, the qualified entity acts in its own name, on behalf of all group members. There is no group in the cases concerning the determination of the use of practices that infringe the general interests of consumers, so in such cases there is no analogous regulation that the qualified entity acts in its own name, on behalf of all group members. Despite that there is no doubt that also in such cases the qualified entity acts on its own name (qualified entity is a party to proceedings); however, the qualified entity is not a substantive party, which remains the consumers (not named) affected by the practice.
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qualified entity is exclusively entitled to bring representative class actions concerning the determination of the use of practices that infringe the general interests of consumers or actions for claims related to using such practices. The qualified entities are consumer organizations and other entities entered in the register kept by the President of the Office of Competition and Consumer Protection (Prezes Urzędu Ochrony Konkurencji i Konsumentów; hereinafter: “President of the UOKiK”) or in the list of the European Commission (for cross-border class actions). The qualified entity is also the Financial Ombudsman, who is entered in the register ex officio.
Consumer organizations may be entered in the register kept by the President of the UOKiK upon request. Entry is possible upon submission of a request by consumer organization, on the basis of which the criteria of professionalism and independence detailed by the Act of 16 February 2007 on competition and consumer protection (hereinafter: “Consumer Protection Act”) are checked.
The detailed conditions for obtaining an entry in the register and the course of the entry procedure are set out in the Consumer Protection Act.
The conditions that must be fulfilled by a consumer organization in order to obtain registration are:
The organizations that meet all of the above criteria are entered in a register kept by the President of the UOKiK.
Polish consumer organizations’ requests for entry in the list maintained by the European Commission (containing a list of entities authorized to bring cross-border representative actions) is also examined by the President of the UOKiK. In the request, it should be indicated whether the organization is applying for entry in the register, the list or both of them. The President of the UOKiK communicates to the European Commission which entities are authorized to bring cross-border representative actions.
The register and the list are maintained in electronic form.
The qualified entity may only bring actions whose subject matter falls within its statutory tasks, which is verified by the court in each case.
Group proceedings require mandatory representation by a lawyer, which means that the claimant (both representative of the group and qualified entity) has to be represented by an attorney at law or legal counsel (of course, except for cases where the claimant is an attorney at law or legal counsel; the obligation also does not apply if the claimant is the Financial Ombudsman). The group representative / qualified entity decides on the choice of a professional attorney, grants them a power of attorney for representation in group proceedings, as well as negotiates and enters into a legal representation agreement with an attorney.