The Regional Court in Warsaw 3^rd Civil Division in the following ruling bench:

Presiding Judge:            Ewa Jończyk, Regional Court Judge (rapporteur)

Judges:                            Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 5^th December 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

1. Article 2 (1) of the Act on Pursuing Claims in Group Proceedings explicitly refers to standardisation of the claim amounts, while not e.g. standardisation of the rules for calculating claims.
2. There are no grounds to claim that the group members’ declarations of intent on joining the group should include the date on which they were drawn up. There is no such obligation in the Act on Pursuing Claims in Group Proceedings. The date placed on the document does not affect the credibility of the declaration included within its content, but only contains the actual date it was submitted on. The provision of Article 6 (2) of the Act on Pursuing Claims in Group Proceedings only stipulates that a statement of a group member must express their willingness to join the group and their consent for a specific person to act as a group representative.

1. According to the Act on Pursuing Claims in Group Proceedings, a class action is admissible only when the group is homogenuous. The group which consists of members who acquired their cars: in Germany, 20 directly in Poland, 6 as the lessee in Poland, 15 as the secondary buyer in Poland, 3 members as the result of donation in Poland and 3 as the buyer after the end of leasing agreement may not be deemed homogenuous. For these reasons the statement of claims should have been rejected.
2. The relations between the group members and the representative of the group should be considered as a type of agency.
3. In case of statements of claims pursued in group proceedings, the group representative possesses the formal legal capacity, whereas group members hold the substantive legal grounds for pursuing the claim. It should be emphasised that there are differences between class action proceedings and standard civil proceedings in pointing to the fallibility of the traditional concept of procedural substitution.
4. It is necessary to make a distinction between the formal legal capacity and material legal grounds for pursuing a claim in group proceedings. Although the court decides on the substantive legitimacy of the claims pursued by each group or subgroup member and the judgment issued on these grounds is an enforcement order respectively, it should be emphasised that there is only one claimant in the proceedings – the group members’ representative. Although the group members can be examined as a party in the proceedings, in fact they are not a party thereto.
5. Therefore, if the group members are not a party to the proceedings, the statement of claims may not be rejected in relation to a part of them, simply because it is impossible to reject a claim in relation to an entity who is not a party to the proceedings.
6. It is impossible to reject a statement of claims partially, because only one claim is pursued in group proceedings. If separate claims of every group member were the object of the proceedings, the court would to award specific amounts to the group members’ benefit, and not the whole to the representative of the group. This is not the case. In procedural terms, in group proceedings there is only one claim, which is awarded to the benefit of the claimant – the group representative. Hence, there are no legal grounds for dividing and partially rejecting the claim.
7. The group members’ situation should be identical already at first glance and this may not require an examination as to the evidence already at the initial stage of the litigation only to check whether the statement of claims may be partially rejected when the prerequisites of the admissibility of group proceedings are examined in general.
8. It is impossible to reject a statement of claim concerning the group representative’s part of the claim and prosecute the case further without them. Other members of the group are not parties to the proceedings in the case, therefore a partial rejection of the statement of claims in the part regarding the group representative’s claim will result in the lack of a claimant in the proceedings.

1. Submission of a declaration on joining the group has equal substantive and procedural law related effects as filing an action. However, a condition for upholding the effects of filing an action and representation relationship in force is nevertheless conditioned is to include the members of the group in a decision of the court’ establishing the group’s personal composition. The court renders this decision after permitting the defendant to present their stance in this matter in the form of charges. These charges may therefore pertain to the non-compliance of individual group members with the group membership criteria. The criteria of group membership are determined each time by way of court’s decision on hearing the case in group proceedings. This is because by rendering a decision on hearing a case in group proceedings, the court certifies the admissibility of class action on the basis of the claims included in the statement of claims. By accepting these claims as eligible to be heard in group proceedings, the court simultaneously determines a claim template that will be binding at further assessment of parties joining the case at a later stage, i.e. – whether these claims can be heard in the same group proceedings as the claims initially indicated in the statement of claims. In turn, in establishing group membership, the court examines if group members’ claims are identical with the claim template determined in the decision on hearing the case in group proceedings. It means that each claim individually must comply with the preconditions of admissibility of a class action. The group membership of parties covered by the statement of claims is verified at the stage of adjudicating on admissibility of group proceedings.

1. The doctrine and jurisprudence emphasise that the danger for citizens’ life, health and property, brought by the flood, causes the necessity to secure the social order in an organised manner. Public administration bodies (government and self-government) must be involved in this task, as they are responsible for providing flood protection. This goal may be achieved only by taking actions in the imperative form through the use of prohibitions, orders and appropriate restrictions, and the forms of such imperative actions can be used solely by public administration authorities. In the light of the above, there is no doubt that all activities in the field of flood protection, i.e. those aimed at minimising the risk related to the flood by creating an appropriate flood protection system, as well as those involving a quick reaction in the event of a real flood risk should be classified as belonging to the imperium
2. In the Polish legal system, tasks in the field of the protection of citizens and property against flood are divided between a number of entities and bodies of government and self-government administration, and these entities should cooperate with each other and coordinate activities at various levels of the system. Hence, there is a necessity to establish the liability of many entities for damage suffered by group members, since one entity is responsible for the condition of the embankment, another for the embankment area, another for the condition of the river bed, and yet another for the coordination and conducting of anti-flood actions, and only all these tasks undertaken comprehensively can provide adequate flood protection. Contrary to the arguments of the defendant State Treasury, the civil structure of the complex tort is adequate to such a situation.
3. The doctrine states that joint and several liability may arise only for one damage. The indivisibility of the damage takes place when, in the area of legally protected goods, it is impossible to mark (separate) damage caused by the actions of the individual entities, who are liable for the damage. The arisen joint and several liability related to the commission of a tort creates the same liability for all joint and several debtors. Its scope is the same for each of them, regardless of the degree of fault, the contribution to the damage or other circumstances.
4. It is doubtful that in case for establishment of the liability for damages, it would be possible to raise the defence of limitation, since this institution concerns only the right to claim the benefit.

The decision was changed in point 2. by the decision of the Regional Court in Warsaw 3^rd Civil Division of 5^th December 2017, III C 1089/15

The Regional Court in Warsaw 3^rd Civil Division in the following ruling bench:

Ewa Jończyk, Regional Court Judge

Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 10^th October 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

/on the subject of the announcement on commencement of group proceedings/

decides to:

publish an announcement in the (…) section of the ‘(…)’ daily newspaper on the commencement of the group proceedings with the following content

1. The standardization of the claims shall be assessed with respect to pursuing homogenous claims in this sense that the Act sets out the requirement to pursue by all claimant members an action for adjudication, action for declaration or shaping of a legal relation or right.
2. During the process of interpretation of the term ’homogeneity of claims‘ on the grounds of the Act on Pursuing Claims in Group Proceedings, as well as the terms ’factual basis‘ and ’standardization of claims’, which are not legally defined the main goals of group proceedings shall be taken into consideration.
3. The premise of homogeneity of claims relates to claims which arise from one type of legal relations. The abovementioned meaning of homogeneity of the claims is not associated with the same legal basis. That is because, pursuant to the Article 1 (1) of the Act on Pursuing Claims in Group Proceedings, the commonality of legal norms which are the basis of the claims is not the premise of admissibility of group proceedings.
4. The requirement of the same or similar factual basis of the statement of claims means that the factual basis of the claims does not have to consist in the same circumstances but the significant similarity of them is sufficient.
5. In case of declarations on joining the group, the date of submitting them to the group representative is important, not the date their being signed by the entity who declares the intent to pursue their claim in group proceedings.

The Regional Court in Gdańsk 25^th Civil Division, in the following ruling bench:

Presiding Judge:            Urszula Malak, Regional Court Judge,

Judges:                            Dorota Kołodziej, Regional Court Judge

Krzysztof Solecki, Regional Court Judge

having examined on 4^th October 2017 in Gdańsk at the hearing in camera in group proceedings the case filed by group representative (…) against (…) and (…)

1. A sole entrepreneur or a partner in a civil law partnership (therefore as a natural person) can purchase an object either as an entrepreneur or as a consumer. In such a case the purpose for which the agreement is concluded is the decisive factor.
2. The potential disposal of the tickets bought by consumers to other people has no influence on the decision whether the claims are based on an equal legal basis.
3. It is therefore difficult to recognize that the claims of the consumers, who purchased the tickets (admittedly in a special offer including gratuitous services, which are not the object of their claims)cannot be deemed as the claims based on the equal or the same factual basis.

1. From the point of view of a decision on admissibility of group proceedings (Article 10 of the Act on Pursuing Claims in Group Proceedings), first and foremost, it is important if group proceedings may be conducted in the particular case, so as to eliminate the necessity of conducting a number of individual cases.
2. The issues connected with establishing the group’s composition and, then, legitimacy of claims do not constitute premises for admissibility of group proceedings. The compositions of the group is established in the context of more extensive procedural material gathered to parties’ initiative in course of the proceedings.