Non-final judgment.

1. The provisions concerning the redemption fee/fees for the total redemption of the value of the policy may not be qualified as the main performance of the parties, as they do not affect the essence of the legal transaction. They are therefore subject to assessment as to their abusive nature.
2. Where the clause relating to the redemption fee/fees for the total redemption of the policy value is found to be abusive and it is impossible to apply the general terms and conditions of the agreement or the general provisions on obligations in that place, the fee should be returned pursuant to the provisions on undue performance – Article 410 of the Polish Civil Code.
3. There is no doubt that the payment of commissions to agents cooperating with the defendant constitutes a kind of obligation (…) which results from the business activity conducted. Therefore, under the quoted provision the use of funds from the fees collected for this purpose does not constitute consumption or loss of enrichment. By paying commissions from the fees, the defendant released itself from the obligation to pay, which was incumbent thereon as an entrepreneur. It cannot, therefore, be considered that it is no longer enriched in that regard.

1. The conditions of admissibility of the class action include the minimum number of group members, homogeneity of the claims, common factual basis of the claims, and in case of pecuniary claims – standardization of values of each group member`s claims taking into account the common factual basis of these claims. Failing to meet any one of these conditions leads to the rejection of the lawsuit on the basis of Article 10 (1) of the Polish Act on Pursuing Claims in Group Proceedings, assessment of compliance with the conditions carried out on the basis of the statements and declarations made in the statement of claims in group proceedings.

The Regional Court in Krakow 1^st Civil Division with the following ruling bench:

Presiding judge:            Marta Woźniak, Regional Court Judge

Judges:                            Agnieszka Włodyga, Regional Court Judge

                                         Ewa Olszewska, Regional Court Judge

having examined on 20^th April 2017 in Krakow at the hearing the group action filed by Z. R. acting as the representative of the group consisting of: [data of 27 group members] against the State Treasury – Voivode Ś., Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; the Poviat of S.; the Municipality of S., for establishment,

1. Under Article 4 (1) of the Polish Act on Pursuing Claims in Group Proceedings, the representative of the group is the person filing the action. Thus, the representative of the group, who filed the action on behalf of the group members, is a claimant in the procedural meaning, whereas the group members are claimants in the substantive meaning.
2. Under Article 17 (1) of the Polish Act on Pursuing Claims in Group Proceedings, the Court issues a decision on composition of the group. The doctrine indicates that decision on the composition of the group is of a constitutive nature. Thus the membership in the group is not created by declarations on joining the group submitted by individuals, but by the issuance of the Court’s decision on the composition of the group’ establishes its composition in a class action.
3. There is no need to examine the claim of a group member who passed away before the decision establishing the group composition was rendered.
4. It seems admissible to broaden the demand of the statement of claims by claims of further persons, because it does not obligate the Court to establish the group membership anew. As a result of such broadening, the already validly established composition of the group is not changed.
5. The pursuit of a cash claim on the basis of Article 2 (3) shall be broken down into two stages: the first one as a class action for establishment and the second as individual actions for payment.
6. It should be emphasized that when only demanding the establishing of the defendant’s liability under Article 2 (3) of the Act on Pursuing Claims in Group Proceedings, the claimant also needs to formulate a cash claim, the pursuing of which in later individual proceedings is aimed at determining defendant’s liability and this liability in group proceedings must be established in reference to a cash claim the performance of which group members seek from the defendant.

1. It is necessary to emphasize some general content-related remarks, which will outline the subject of the dispute. Firstly, the specific nature of group proceedings needs to be emphasized, some issues of which are the examination and adjudication in this case. The legislator’s intention in introducing group proceedings into the Polish legal system was to create regulations which would provide a procedural protection of interests of several subjects injured as a result of one (common) event. This particular type of proceedings – the significance of which is expressed in the fact that it is regulated by a separate statute – is facultative, as initiating it requires a motion for the opening of group proceedings to be included in the statement of claims. It is essential to indicate the fact that group proceedings, according to the Polish Act on Pursuing Claims in Group Proceedings, is reserved to narrowly defined categories of cases which further results in the fact that only specific and listed types of claims might only be pursued in these types of proceedings (consumer protection, hazardous product liability, tortious liability claims).
2. Admissibility of initiating and conducting the proceedings as well as rendering a judgment bearing on the merits of the matter is conditioned by procedural prerequisites. Those applicable to regular proceedings under the Polish Code of Civil Procedure are also applicable to group proceedings. Nevertheless, there are further premises of admissibility of group proceedings, specific for these types of proceedings only. All these premises, with regard to all the types of cases which might be heard in group proceedings, are listed in Article 1 (1), in cases regarding pecuniary claims an extra premise appears in Article 2 (1) of the Act. These premises are both subjective ( the minimum number of group members) and objective (homogeneity of claims, common factual basis of claims, the type of claims and, in case of pecuniary claims, standardization of value of the claims taking into account the common factual basis of the claims). In case of inadmissibility of group proceedings due to the non-compliance with of any of the above mentioned premises defined in Article 1 (1) or Article 2 (1) of the Act, the court shall reject the action.
3. Group proceedings is to constitute an effective protective measure for legal rights when there is such a bond between these rights that hearing the case with all these claims brought in a court cumulatively is cost-effective in procedural and economic terms. The motive for the abovementioned restrictions is the will to ensure homogeneity of the group and thus, as a consequence, guarantee smooth prosecution of group proceedings. Under the Act on Pursuing Claims in Group Proceedings this goal is to be realized through the condition of homogeneity of group members’ claims and their being based on the same or common factual basis. This wording refers to Article 72 (1) (2) of the Polish Code of Civil Procedure with the proviso that Article 1 (1) of the Act on Pursuing Claims in Group Proceedings does not require homogeneous claims to be based on an equal factual basis.
4. The criterion of the common factual basis (the same or equal) refers to the circumstances from which the claims brought in group proceedings originate. The same factual circumstances refer to a situation when the claims brought in the class proceeding originate from one particular event, equal factual circumstances in turn refer to claims originating from a series of analogous events. This distinction might sometimes be fluid, nevertheless it is practically insignificant with respect to admissibility of group proceedings. The factual basis means, in the meaning of Article 1 (1) of the Act, the fundamental initial complex of facts substantiating the claims. The premise of homogeneity of the claims should be understood in such a narrow way that, after the group’s composition is established pursuant to Article 17 (1) of the Act, all the claims brought before court could be adjudicated on and settled cumulatively. The goal is to arrive, as far as possible, at such a state of affairs where the issues covered by the court’s cognition after establishing the group’s composition, with taking into account any potential subgroupsare identical (common) for all the group members. The premise of homogeneity of claims and their common factual basis pertain, to the same degree, to all the claims brought in group proceedings. Pursuing in one group by some persons diverse types of claims or claims based on different factual bases is excluded. This ban cannot be circumvented by creating subgroups with violation of the rules described above.

Court of Appeals in Warsaw 6^th Civil Division in the following ruling bench:

Presiding Judge: Jacek Sadomski, Court of Appeals Judge

Judges: Krzysztof Tucharz, Court of Appeals Judge; Tomasz Pałdyna (rapporteur), Regional Court Judge (delegated)

having examined on 27th March 2017 in Warsaw at the hearing in camera, the case filed by (…) joint-stock company in Warsaw against (…) in N. (Cyprus) for the protection of copyrights and related rights in group proceedings following the claimant’s complaint against the decision of the Regional Court in Warsaw of 17^th November 2016, file reference no. XX GC 1004/12

The Regional Court in Warsaw 1^st Civil Division in the following ruling bench:

Andrzej Kuryłek, Regional Court Judge

Alicja Fronczyk, Regional Court Judge

Jacek Bajak, Regional Court Judge

having examined on 15^th March 2017 in Warsaw at the hearing the case filed by the Municipal  Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for the establishment [of the defendant’s liability]

decides to:

examine the case in group proceedings.

1. The term “claim” within the meaning of Article 1 of the Act on Pursuing Claims in Group Proceedings means the demand of the statement of claims.
2. Not only an action for a performance but also an action for declaration or the shaping of a legal relation or right may be pursued in group proceedings.
3. A class action is admissible if there are nonsignificant dissimilarities among individual basis of the claims provided that the significant factual circumstances substantiate a demand which is common for all claims. The essence of group proceedings is the commonality of the demand which must be typical (common) for all claims.
4. The circumstances which objectively or subjectively diversify the situation of the members of the group are not assessed at the stage of certification.
5. Due to axiological assumptions underlying Article 8 of the Act on Pursuing Claims in Group Proceedings (balance between parties’ rights in the proceedings, prevention of litigiousness), in group proceedings the court should generally allow the motion for the Claimant’s deposit.

1. Pursuant to Article 1(1) of the Act on Pursuing Claims in Group Proceedings, the collective nature of the proceedings expresses itself in a subjective cumulation (which is required ex lege) of the natural persons who – according to their allegations – are entitled to specific claims belonging to the category of subjective rights.
2. The premises of admissibility of the group proceedings include: homogeneity of the group members’ claims, similar or identical factual basis of the group members’ claims, number of group members, standardization of the pecuniary claims, an objective capacity of the claims to be examined in the group proceedings. Mere cumulative satisfaction of the abovementioned premises facilitates the case to be examined in group proceedings.

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

Presiding Judge: Sylwia J. Łuczak, Regional Court Judge

Judges: Anna Błażejczyk Regional Court Judge; Tomasz Gal Regional Court Judge

having examined on 7^th March 2017 in Warsaw at the hearing in group proceedings of the case filed by the Municipal Consumer Ombudsman in City Hall S. (representative of the group) against (…) joint stock company with the registered office in W. for payment or, potentially, for establishment of a legal relation or right